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Coverage Pointers - Volume VIII, No. 19

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Dear Coverage Pointers Subscribers:

 

            Ahh, the courts are busy again.  As spring arrives, so do the end of winter doldrums and we have a healthy array of newly minted appellate decisions.  We'll get to those in a moment.

 

            I was delighted to meet about a dozen Coverage Pointers subscribers in Orlando this week.  I was honored to present on the topic Complex Liability Insurance Issues - Making the Complicated, Simple at the 2007 PLRB/LIRB Claims Conference. What a crowd down there, some 2000 claims professionals.

 

            We understand that the FDCC Litigation Management College and Graduate Program registration is moving along briskly and I would urge those interested in attending to sign up as soon as possible at the FDCC website, www.thefederation.org.  There is no better claims training program in the country and the fees are so very reasonable.

 

            This week's edition is filled with interesting cases including one which we successfully briefed and argued in the Fourth Department:  a "perfect meld" of insurance policies and indemnity agreements.  You'll find a very interesting case on intra-insured exclusions, a couple of property insurance cases, life and disability cases and others involving late notice of a UIM claim and one dealing with blanket additional insured provisions.

 

            And from Audrey Seeley, the Queen of No Fault, I bring you these words:

 

This edition provides a good mix of issues for you to mull over on a Friday morning.  There is an interesting Court of Appeals decision that provides guidance on the priority of payment of claims regulation.  It also touches on what happens when an insurer is late in getting out a request for additional verification.  In the arbitration world, there is another decision out against a chiropractor that we reported on last time who is conducting needle EMG/NCV testing.

 

I also wanted to take the opportunity this edition to share with you a topic that is presented to us by carriers about once a year that may interest you.  The scenario plays out like this - New Truck Driver Insurance Company issued a New York State motor vehicle liability policy to its insured, Mr. Crash, with a $100,000 single limit coverage and $50,000 in No Fault benefits.  Mr. Crash, driving a truck weighing over 6500 lbs, rear-ends Ms. D'Good who is operating her Yugo.  Ms. D'Good is injured and her insurer, We Gotcha Ya Covered, pays $25,000 in No Fault benefits to her for unspecified and questionable soft tissue injuries.  We Gotcha now seeks to recover the $25,000 from New Truck Driver Insurance Company under the loss transfer statute - Insurance Law 5105. We Gotcha now successfully establishes liability and has an award against New Truck Driver for not only the $25,000 but also for Ms. D'Good's continued No Fault benefits.  Oh, by the way Ms. D'Good also has a pending personal injury claim against Mr. Crash. 

 

The question is does the $25,000 that New Truck Driver just paid out in No Fault benefits under the loss transfer provision get deducted from the bodily injury liability limits of the policy or the no-fault benefit portion of the policy? 

 

If you answered that it is deducted from the No Fault benefit portion of the policy you should pat yourself on the back.  But as Dan would say - why is that answer correct?  Well, Insurance Law 5105(c) provides that if liability is imposed on an insurer under the loss transfer provision it will not affect or diminish the insurer's obligations under any bodily injury liability insurance policy.

 

Bet you didn't know that we handle loss transfer arbitrations did you?  Well we do not only those but special arbitration and property damage.  Keep us in mind next time you receive an arbitration demand from Arbitration Forums, Inc.  

 

Audrey

 

 

From Mark, our Serious Injury editor, you will find a number of interesting twists on threshold motions and he's developing a keen sense of humor on these.

 

Anyway, this issue brings us these cases:

 

·       Court Properly Severed Coverage Action from Personal Injury Action and Then Changed Venue

·       Release for One Accident Doesn't Release Other

·       The Perfect Meld of Additional Insured Provisions and Indemnity Agreements

·       Split Court Debates "Occupational Disability" with Regard to Surgeon who Now Performs Independent Medical Exams

·       Court Split on "Material Misrepresentation" on Life Insurance Application

·       Girlfriend's Son, Living with Insured, Not Under His Care so Intra-Insured Exclusion Inapplicable

·       Discovery of Claim File Allowed in Declaratory Judgment Action

·       Dramatic Overstatement of Property Claim Raises Presumption of Fraud; Here, Presumption became Conclusive Since No Explanation Offered for Gross Disparities

·       Late Notice of Underinsured Claim Leads to Loss of Coverage

·       Blanket Additional Insured Provision Given Effect and Coverage to be Provided

 

STarosieleC'S serious (Injury) Side of New York No-FaulT
Mark Starosielec
[email protected]

 

·       Court to Doctors: Review, Don't Just Refer to MRI Reports

·       Defendants' Affirmative Defense Struck: a Fracture is a Serious Injury

·       Serious Injury Threshold Becomes an Issue in Motion to Vacate a Default Order

·       No Harm, No Foul: Serious Injury Issue Plays a Role in Legal Malpractice Action

·       Doctors Must Set Forth Their Objective Tests When Reaching Conclusions

·       Plaintiff Must Present Competent Medical Evidence Showing Spine's Range of Motion Limitations Contemporaneous with the Subject Accident

·       Reversal of Fortune: Order Reversed on Appeal, Summary Judgment Granted

·       What Have You Done For Me Lately? Doctors' Examinations of Plaintiff Must Be Recent

·       Chiropractor's Report is Admissible if Defendants Fail to Object Before Supreme Court

·       Compare and Contrast: Doctors Must Relate Findings to Normal Range of Motion 'Mere Speculation' that Accident Caused Plaintiff's Condition Deemed Insufficient

  

Audrey's Angle on No-Fault

Audrey Seeley

[email protected]

 

Arbitration

                       

·       Lost Wage Claim Denied as Applicant Already Out Of Work at the Time Of the Accident Due To an Unrelated Injury

·       Yet ANOTHER Decision Questioning Chiropractor's EMG/NCV Testing as Medically Necessary

 

Litigation

 

·       You Must be First to Submit Your Claim, Including Verification, to Receive Priority of Payment

·       No Justiciable Issue - Insurer Waiting for Verification

·       Sure a Nurse Can Conduct a Peer Review

·       Stamped Facsimile of Peer Reviewer's Signature Inadmissible

·       Plaintiff Cannot Cure Defect of Insufficient Affidavit Regarding Business Records in Initial Moving Papers by Submitting an Affidavit from the Correct Individual in Its Reply Papers

 

Keep those comments coming in and we'll see you in a couple of weeks.

 

 

Dan

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Hurwitz & Fine, P.C. is a full-service law firm
providing legal services throughout the State of New York.

Newsletter Editor

Dan D. Kohane
[email protected]

 

Insurance Coverage Team

Dan D. Kohane, Team Leader
[email protected]

Michael F. Perley
Audrey A. Seeley
Vivian Perry Roché

Steven E. Peiper

Fire, First-Party and Subrogation Team
Andrea Schillaci, Team Leader
[email protected]

Jody E. Briandi
Philip M. Gulisano

NO-FAULT/UM/SUM TEAM
Audrey A. Seeley, Team Leader
[email protected]
Vivian Perry Roché
Mark Starosielec

APPELLATE TEAM
Dan D. Kohane
Scott M. Duquin

3/22/07            Cruz v. Taino Construction Corp.

Appellate Division, First Department
Court Properly Severed Coverage Action from Personal Injury Action and Then Changed Venue
In what we see as a developing trend, in an action for personal injuries, a third party action was commenced against an insurer seeking declaratory relief.  The court followed the long-standing rule that even where common facts exist, it is prejudicial to insurers to have the issue of insurance coverage tried before the jury that considers the underlying liability claims.  Court then changed the venue of the coverage action to a different county because parties to the declaratory judgment action did not have offices or reside in the county where the personal injury action was pending.
Editor’s Note:  The successful attorney in this case, Jeff Gold, writes to advise that the third party actions are commenced in order to try to establish venue in what the plaintiffs and insureds consider a more favorable jurisdiction  (or, a less favorable one for the carriers).  By severing the coverage action, not only is prejudice avoided as the court noted, but the insurer may have a better chance of getting a fair day in court is a less volatile county.

 

3/22/07            Morales v. Solomon Management Co., LLC

Appellate Division, First Department
Release for One Accident Doesn’t Release Other
Carrier was in liquidation for a while and lawsuits against insureds were stayed.  When stay was lifted, plaintiff settled claim and release indicated it was for claims arising out of a 1998 accident.  Not surprisingly, the court held that the release did not bar a claim involving a 1997 accident. In addition, the court found no intention on the part of the plaintiff to abandon the claims arising out of the earlier accident.

 

3/16/07            Harleysville Ins. Co. v. Travelers Ins. Co.
Appellate Division, Fourth Department
The Perfect Meld of Additional Insured Provisions and Indemnity Agreements
I take this one personally, since it was our case and our argument.

Back in our 10/6 edition, we reported on the Cheektowaga Central School District v. Burlington Insurance Company and we praised the Appellate Division, Fourth Department for a cogent, reasoned analysis of additional insured provisions.  The Court ignored the Pecker Iron Works pickle and looked at the apt words of the additional insured provisions of the policy.  Fortunately for your editor, he had the chance to appear before the Fourth Department and applaud their analysis and then take it the next step – considering the interrelationship of the additional insured language with contractual indemnity provisions and again, the Fourth Department got it right.

The set up:  Travelers insured Savarino, a GC, under a CGL policy.  Harleysville insured W.C. Roberson, a subcontractor, under a CGL policy.  The contract between Roberson and Savarino, the sub and the GC, required Roberson to do two things:  (a) provide a policy of insurance for Savarino listing Savarino as an additional insured and (b) contractually indemnify Savarino.  Roberson satisfied the first obligation by purchasing a policy of CGL insurance with Harleysville naming Savarino as an additional insured.  The lower court also found that the indemnity agreement was enforceable.

Harleysville now settles the underlying lawsuit and then sues Travelers, arguing that under Pecker Iron Works both Harleysville and Travelers had joint obligations to Savarino, the general contractor, and thus Travelers should contribute 50% of the defense and indemnity costs. 

We represented Travelers.  The Fourth Department agreed with us that under the apt language of the policy, the Harleysville policy provided the sole primary coverage. The Travelers policy provided primary coverage to Savarino, unless there was other primary insurance available for which Savarino was added as additional insured.  That is the language found in many of the current policies and the court applied that language as written following its precedent in the Cheektowaga Central School District case.  Accordingly, for the primary policies, Harleysville went first, Travelers second.

The Court determined that following the exhaustion of the Harleysville policy, the Travelers primary policy (which now became excess) covering Savarino would come next. Roberson did have an excess policy as well on which Savarino was not added as an additional insured.

The Court then noted that, in the underlying third-party action, Savarino was granted summary judgment against Roberson on its cause of action for contractual indemnification. Travelers would therefore have a right of subrogation against Roberson in that third-party action and the court held, as a practical matter, would be entitled to reimbursement from Roberson for the amount that Travelers is obligated to pay plaintiff under its primary coverage for Savarino's liability to Roberson's employee.,

3/16/07            White v.  Continental Casualty Company
Appellate Division, Fourth Department
Split Court Debates “Occupational Disability” with Regard to Surgeon who Now Performs Independent Medical Exams
White, a doctor, formerly specializing in orthopedic spinal surgery, commenced this action to recover benefits for a claimed total disability under a disability income policy. The policy provides that the insured is totally disabled if he is "unable to perform the substantial and material duties of [his] Occupation" (in the case of plaintiff, his former medical specialty of orthopedic spinal surgery) as a result of injury or sickness, and if he is "not performing the duties of any gainful occupation for which [he is] reasonably fitted by education, training, or experience . . . ."  While plaintiff’s injury or sickness prevents him from performing surgery, he can still perform independent medical examinations and thus is actually engaged in a "gainful occupation for which [he is] reasonably fitted by [his] education, training, or experience . . . ."  Court dismisses case. A strong dissent believes issue of occupational disability is question of fact which should be left for the jury.



 

3/16/07            Legawiec v. North American Company for Life and Health Ins. Of New York

Appellate Division, Fourth Department
Court Split on “Material Misrepresentation” on Life Insurance Application
In action to recover proceeds under life insurance policy, insurer took position that decedent, who died from non-Hodgkin’s lymphoma, failed to disclosed that he was being treated for “enlarged lymph node in his neck.” In a split decision, majority concludes that decedent was not advised prior to issuance of policy that enlarged node was “possibly malignant” or even “a serious medical condition.”  Court also finds that even if failing to disclose that treatment was a misrepresentation, insurer did not establish that it was “material” – that it would not have issued policy.  "In order to prove that a misrepresentation is material as a matter of law, an insurer must submit evidence concerning its underwriting practices with respect to applicants with similar histories, establishing that it would have denied the application had it contained accurate information." Here, defendant failed to submit such evidence. The affidavit of defendant's underwriting representative states that defendant would have "postponed" issuing the policy and awaited further tests had defendant known about decedent's treatments, but the underwriting representative does not state that defendant would have denied the application.

 

A strong dissent argues that the failure to disclose was surely a misrepresentation and that the insurer, once it would have seen the results of the test, would not have issue policy so that the misrepresentations were, in fact, material.

 

3/16/07            Chautauqua Patrons Ins. Assoc. v. Ross
Appellate Division, Fourth Department
Girlfriend’s Son, Living with Insured, Not Under His Care so Intra-Insured Exclusion Inapplicable

Mellin, then age 16, was seriously injured while operating a corn chopper at a dairy farm owned by Miller. Plaintiff disclaimed coverage on the ground that the contract of liability insurance covering the farm and the residence on the farm excluded coverage for bodily injury to "any . . . person under the age of twenty-one in [the] care [of an insured] or in the care of [an insured's] resident relatives . . . ." Mellin and his mother lived with the insured, Miller, on Miller’s farm.  However, Mellin’s mom was not married to Miller and Mellin was not Miller’s biological son.  While Mellin occasionally helped out on the farm, he was “not subject to Miller's discipline.” Miller “rarely assumed responsibility” for the young man, did not claim him as a dependent, etc. m Court concludes that Mellin not “in the care” of an insured and thus exclusion inapplicable.

 

3/16/07            Cain v. New York Central Mutual Fire Insurance Company
Appellate Division, Fourth Department
Discovery of Claim File Allowed in Declaratory Judgment Action

The trial court determined that the material in claims file up until the point of disclaimer can be discovered and the claim representative can be deposed.  The carrier failed to meet its burden of establishing that the material was privileged. 

Editor’s note: When there is privileged material in a file, the party seeking to protect the material from disclosure must establish, generally through affidavits of the client, not the lawyer, that the material is protected by attorney-client, work product or other litigation privileges.  Here, the court did not find that the privileges were established.

3/15/07            Latha Restaurant Corp. v. Tower Insurance Company
Appellate Division, First Department
Dramatic Overstatement of Property Claim Raises Presumption of Fraud; Here, Presumption became Conclusive Since No Explanation Offered for Gross Disparities
Property claim with plaintiff’s proof of loss statement including duplicative items, and property in which insured had no insurable interest.  It also sought to recover for debris removal although no expense was ever incurred.  Plaintiff’s losses as proven totaled $275,000 and almost $400,000 in proof of loss is unsustainable and inexplicable. Overvaluation of insured property raises a presumption of fraud in proportion as to the excess, and such presumption becomes conclusive where, as here, the insurer demonstrates that the difference between the amounts claimed in the proof of loss and the losses actually shown to have been sustained are grossly disparate and without reasonable explanation.  Fact that public adjuster may have been one at fault is of no avail since public adjuster was agent of insured.

3/13/07            In the Matter of Assurance Company of America v. Delgrosso
Appellate Division, Second Department
Late Notice of Underinsured Claim Leads to Loss of Coverage
SUM endorsement issued to Delgrosso required that notice of claim be provided “as soon as practicable.” Court interprets that to mean with reasonable promptness after insured knew or should have know that tortfeasor was underinsured. Here, insured failed to submit notice of claim for two years and six months after accident and over a year after he commenced action seeking $10,000,000 in damages and 11 months after he knew limits of one of tortfeasor’s policies.  His notice is surely late.  Since insurer was relying on late notice of claim and not late notice of commencement of lawsuit, prejudice or lack of it, not important to determination.  cf. Rekemeyer v State Farm Mut. Auto Ins. Co.

3/8/07               Bovis Lend Lease LMB Inc. v. Garito Contracting, Inc.
Appellate Division, First Department
Blanket Additional Insured Provision Given Effect and Coverage to be Provided
Twin City’s insured, Barito and plaintiff Bovis had a trade contract.  While the document was lost, Bovis established, through other evidence, that the contract required Garito to provide insurance coverage for Bovis.  It was unclear whether the contract had even been signed.

The CGL policy had a blanket additional insured provision defined an additional insured as any “entity that entered into a written contract or agreement with the insured (Garito) to provide insurance afforded by the policy.”  Accordingly, Bovis was entitled to a determination that it was an additional insured under the policy. The liability issues raised in the underlying personal injury action need not be determined for the purpose of determining coverage. Since notice of the incident was given directly to Twin City and since Twin City did not demonstrate that it timely disclaimed for late notice or otherwise, there is no effective disclaimer.

STarosieleC’S serious (Injury) Side of New York No-FaulT
Mark Starosielec
[email protected]

 

3/22/07            Ortega v. Maldonado

Appellate Division, First Department

Court to Doctors: Review, Don’t Just Refer to MRI Reports

Order granting defendants’ motion for summary judgment dismissing the complaint, is unanimously affirmed. Here, defendants in this no-fault motor vehicle accident case met their burden of establishing, as a matter of law, that plaintiff had not sustained a “serious injury.” Plaintiff then failed to meet his burden of demonstrating that he had sustained such an injury by submitting objective proof of its nature and degree. While plaintiff’s expert, a non-treating physician who examined plaintiff in connection with this action, performed certain range of motion tests, there were no affirmations submitted from treating physicians as to plaintiff’s condition contemporaneous to the accident, or submission of MRI films or sworn reports from doctors reviewing said films. The expert referred to unspecified MRI reports, but made no claim that he actually reviewed the films or that the reports were certified (see Perez v Rodriquez, 25 AD3d 506, 508 [2006]; Jeng-Jen Chen v Marc, 10 AD3d 295 [2004]).


3/16/07            Tagger v. Olympic Van Line, Inc.
Appellate Division, Second Department

Defendants’ Affirmative Defense Struck: a Fracture is a Serious Injury

Appellate Division affirms lower court’s order which dismissed the defendants’ affirmative defense asserting that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The Court held: the lower court exercised its discretion in granting that branch of the plaintiff's motion. The plaintiff made a prima facie showing that the subject accident caused her to sustain a fracture, and thus, a “serious injury” within the meaning of Insurance Law § 5102(d). In opposition, the defendants failed to raise a triable issue of fact.


3/16/07            Bilodeau-redeye v. Preferred Mut. Ins. Co.
Appellate Division, Fourth Department

Serious Injury Threshold Becomes an Issue in Motion to Vacate a Default Order

Plaintiff commenced this action seeking “supplementary uninsured/underinsured motorist’s coverage” for injuries that she allegedly sustained in a motor vehicle collision. Lower court erred in denying the motion of defendant to vacate the order granting a default judgment against it. That court determined that defendant established a reasonable excuse for the default but denied the motion upon its further determination that defendant failed to make the requisite showing of the existence of a meritorious defense. The appellate division reversed that finding. It held: “the quantum of proof required to prevail [on a motion to vacate a default order or judgment] is not as great as is required to oppose summary judgment.” Here, defendant met its burden by establishing “that there is support in fact for [its] . . . defenses.’” Where the moving party meets that burden, courts have a liberal policy with respect to vacating defaults. In support of its motion, defendant established that plaintiff may have been primarily if not solely at fault for the occurrence of the accident. Moreover, defendant established that plaintiff suffered from preexisting medical conditions and thus that the injuries allegedly sustained in the accident may not meet the serious injury threshold under Insurance Law § 5102 (d). Defendant also established that the accident may not have been a proximate cause of the injuries allegedly sustained in the accident.

 

3/16/07            Hunter v.  Siegel, Kelleher & Kahn

Appellate Division, Fourth Department

No Harm, No Foul: Serious Injury Issue Plays a Role in Legal Malpractice Action

Appellate Division modifies lower court order in legal malpractice action. The order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and dismissing the complaint insofar as the complaint, as amplified by the bill of particulars, alleges that plaintiff would have been successful in the underlying action based upon a serious injury she sustained under the 90/180 category of serious injury within the meaning of Insurance Law § 5102 (d) and as modified the order is affirmed without costs.

 

Plaintiff had retained defendants to commence a personal injury action to recover damages for injuries she allegedly sustained in an automobile accident on March 23, 1999. It is undisputed that defendants did not timely commence that action. Plaintiff thereafter commenced this legal malpractice action alleging that she would have been successful in the underlying action based upon serious injuries she sustained under the significant limitation of use and 90/180 categories of serious injury within the meaning of Insurance Law § 5102 (d), and that she was deprived of a remedy for her injuries by defendants’ negligence.

 

Contrary to the contention of defendants, Supreme Court properly denied their motion for summary judgment dismissing the complaint insofar as the complaint, as amplified by the bill of particulars, alleges that plaintiff sustained a serious injury under the significant limitation of use category. In support of their motion, defendants had to establish that “plaintiff is unable to prove at least one of [the] essential elements of a malpractice cause of action” (Ippolito v McCormack, Damiani, Lowe & Mellon, 265 AD2d 303), and here defendants asserted in support of their motion that plaintiff did not sustain a serious injury in the March 1999 accident and thus would not have been successful in the underlying action even if it had been timely commenced. Defendants submitted the affidavit of a medical expert noted, that plaintiff's "cervical spine was limited in left rotation by 50%, extension by 50%, and flexion by 25%," that plaintiff had been diagnosed with disc herniations, and that she was required to undergo an anterior cervical discectomy and fusion in an attempt to correct those conditions. The Court thus concluded that defendants’ submissions established that plaintiff had a significant limitation of use of a body function or system and that plaintiff's burden in opposition was therefore limited to addressing the alleged lack of causation. In response, plaintiff submitted competent medical evidence establishing that her injuries were caused in part by the March 1999 accident and thus raised a triable issue of fact whether she would have been successful in the underlying action based upon a serious injury under the significant limitation of use category.

 

The Court agree with defendants, however, that plaintiff would not have been successful in the underlying action based upon a serious injury under the 90/180 category. Defendants established that plaintiff resumed working immediately after the subject accident and continued many of her normal activities throughout the relevant period, and plaintiff failed to raise a triable issue of fact whether she was unable to perform substantially all of the material acts that constituted her usual and customary daily activities

 

 

 

3/13/07            Geba v. Obermeyer
Appellate Division, Second Department

Doctors Must Set Forth Their Objective Tests When Reaching Conclusions

Appellate Division reverses lower court’s order which had granted defendants’ summary judgment motion. Contrary to the Supreme Court’s determination, the defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. In support of their motion, the defendants relied upon, among other things, the affirmed medical report of their examining neurologist. In discussing range of motion testing performed on the injured plaintiff, he merely stated that such testing revealed no “limitation of mobility in the head, neck, back, or limbs.” While he made such findings, he failed to set forth the objective testing he performed in order to come to the conclusion that the injured plaintiff did not sustain any limitations in cervical and lumbar range of motion as a result of the subject accident.

 

 

3/13/07            Iusmen v. Konopka
Appellate Division, Second Department

Plaintiff Must Present Competent Medical Evidence Showing Spine’s Range of Motion Limitations Contemporaneous with the Subject Accident

Plaintiff’s plethora of problems with her evidence leads to Appellate Division affirming lower court’s order granting defendant’s motion for summary judgment. First, defendants were able to establish its prima facie case. However, inter alia, the affirmed medical report and affirmation of the plaintiff’s examining neurologist failed to raise a triable issue of fact. While the plaintiff’s examining neurologist set forth limitations in the plaintiff’s cervical and lumbar spine range of motion based on a recent examination in his affirmed medical report and affirmation, neither he nor the plaintiff proffered competent medical evidence showing range of motion limitations in the plaintiff’s spine that were contemporaneous with the subject accident.

 

It is also apparent that the plaintiff’s examining neurologist relied on the unsworn reports of others in reaching the conclusions in his affirmed report and affirmation. Furthermore, the affirmed submissions of the plaintiff evincing that she suffered from herniated discs in her lumbar and cervical spine were insufficient, on their own, to establish a serious injury. The mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration. The plaintiff’s self-serving affidavit was insufficient to satisfy this requirement.


3/13/07            Manning v. Tejeda
Appellate Division, Second Department

Reversal of Fortune: Order Reversed on Appeal, Summary Judgment Granted

Appellate Division reverses lower court’s order which denied defendant’s motion for summary judgment. Contrary to the plaintiff’s contention, the defendant established his prima facie entitlement to judgment as a matter of law by tendering competent evidence that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident. In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff did not offer medical proof in admissible form that was contemporaneous with the subject accident substantiating his claim of serious injury. Evidence of disc bulges, without more, is insufficient to establish a serious injury. To the extent the plaintiff tendered medical evidence in admissible form, such evidence related only to his current complaints and was therefore insufficient to defeat summary judgment.

 

3/13/07            Marziotto v. Striano
Appellate Division, Second Department

What Have You Done For Me Lately? Doctors’ Examinations of Plaintiff Must Be Recent

Order granting defendants’ motion for summary judgment dismissing the complaint, is affirmed.

Defendant established, prima facie, that the plaintiff Marlene Marziotto (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. Contrary to the plaintiffs’ contentions on appeal, they failed to raise a triable issue of fact in opposition. The respective affirmations, with annexed submissions, of the injured plaintiff’s treating orthopedist and physician were insufficient to raise a triable issue of fact since the findings contained therein were not based on a recent examination of the injured plaintiff. Moreover, in his affirmation, the injured plaintiff’s treating physician admittedly relied on the unsworn magnetic resonance imaging report of another physician in reaching his diagnosis of the injured plaintiff therein, thus rendering his affirmation without probative value in opposing defendants’ cross motion.


3/13/07            Santiago v. Rodriquez
Appellate Division, Second Department

Chiropractor’s Report is Admissible if Defendants Fail to Object Before Supreme Court

Here defendants, via their submissions, made a prima facie showing that Jose Santiago (hereinafter Santiago) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. In response, the plaintiffs raised a triable issue of fact. The plaintiffs relied on the report of Santiago's treating chiropractor, which specified the decreased ranges of motion in Santiago’s cervical spine and dorsolumbar spine as evidenced by objective findings, as well as evidence of herniated and bulging discs in the cervical and lumbar spine confirmed by magnetic resonance imaging tests. The chiropractor, in his report, also concluded that Santiago’s injuries and limitations were permanent, and causally related to the subject accident. This evidence was sufficient to raise a triable issue of fact as to whether Santiago sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. Any argument raised by the defendants concerning the admissibility of the chiropractor’s report was waived, as the defendants failed to raise that issue before the Supreme Court.

3/13/07            Fudol v. Sullivan
Appellate Division, Second Department
Compare and Contrast: Doctors Must Relate Findings to Normal Range of Motion
 Lower court’s order denying defendants’ motion for summary judgment is affirmed. While the defendants’ examining neurologist noted limitations in the range of motion of the plaintiff’s lumbar spine upon his examination, he did not sufficiently quantify or qualify the limitation to establish the absence of a significant limitation of motion. Moreover, where this neurologist did provide a numerical quantification regarding his testing of the lumbar spine range of motion, he failed to compare those findings to the normal range of motion.

3/13/07            Diaz v. Anasco
Appellate Division, First Department
Mere Speculation’ that Accident Caused Plaintiff’s Condition Deemed Insufficient
In a short opinion, the First Department upheld lower court’s order granting defendants’ motion for summary judgment.  The Court held: “to recover damages for non-economic loss related to personal injury allegedly sustained in a motor vehicle accident, the plaintiff is required to present nonconclusory expert evidence sufficient to support a finding not only that the alleged injury is “serious” within the meaning of Insurance Law § 5102(d), but also that the injury was causally related to the accident. Absent an explanation of the basis for concluding that the injury was caused by the accident, an expert’s ‘conclusion that plaintiff’s condition is causally related to the subject accident is mere speculation,’ insufficient to support a finding that such a causal link exists. Plaintiff’s submission in response ‘left wholly unanswered the question whether the claimed symptoms diagnosed by [her treating physician] were caused by the accident.” (Pommells v Perez, 4 NY3d 566, 575 [2005]).”

 

 

 

 

Audrey’s Angle on No-Fault

Audrey Seeley

[email protected]

 

The reporting of No-Fault arbitration awards is not at the same level of reported case law, meaning there is no one source to turn to for comprehensive research of arbitration awards.  We encourage you to submit to us, in a PDF format, at [email protected], any recent no-fault arbitration awards, especially Master Arbitration awards, that address interesting no-fault issues. 

 

Arbitration

 

3/17/07            In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Thomas J. McCorry, Esq. (Erie County)                       

Lost Wage Claim Denied as Applicant Already Out of Work at the Time of the Accident Due to an Unrelated Injury

Here is the Angle:  The insurer properly denied the Applicant's lost wage claim on the basis that at the time of the accident he was already out of work due to another injury.

 

The Analysis:  The insurer properly denied the Applicant's, eligible injured person ("EIP"), lost wage claim for the time period from August 8, 2005 until October 13, 2005 as the EIP was not working at the time of the August 9, 2005, motor vehicle accident.  We note that the insurer's denial was not timely issued but that does not waive the defense of lack of insurance coverage for failure to fall within the grant of coverage for lost wages.

 

The insurer demonstrated that since June 6, 2005, the EIP was collecting New York State Disability and had not been released to return to work for an unrelated ankle injury until October 13, 2005.

 

3/15/07            In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Thomas J. McCorry, Esq. (Erie County)                       

Yet ANOTHER Decision Questioning Chiropractor's EMG/NCV Testing as Medically Necessary

Here is the Angle:  This is yet another decision coming from Arbitrator McCorry mentioning how portions of Mr. Syracuse's letters of medical necessity have been identical for six cases now before him.  

 

The Analysis:  On February 7, 2006, the 64-year old female eligible injured person was involved in a motor vehicle accident.  She was referred by her treating chiropractor - Bova to Scott Syracuse, D.C. for EMG/NCV testing.  The basis for the referral was persistent neck and shoulder pain.

 

On April 11, 2006, she presented to Mr. Syracuse for the testing.  Mr. Syracuse drafted an April 11, 2006, letter of medical necessity that stated in pertinent part:

the need for testing is indeed of medical necessity in order to properly ascertain the extent of her injuries, as well as determine future, and perhaps, more invasive treatment needs. There also needed to be a differential diagnosis between cervical radiculopathy, cervical radiculitis, mononeuropathy, polyneuropathy and carpal tunnel syndrome syndrome (sic) in this patient.

 

Arbitrator McCorry noted:

 

This exact same language has appeared in every letter of medical necessity in at least six different cases of disputed EMG/NCV studies performed by Dr. Syracuse, that have come before me.

(emphasis added).

 

            The insurer conducted a peer review with Ravi Tikoo, M.D.  It is noted that that Dr. Tikoo testified via telephone at the arbitration.  Dr. Tikoo concluded that the testing was not medically necessary as there was no clear evidence to suggest neurological involvement requiring this type of neurological testing.  Further, Dr. Tikoo pointed out that the eligible injured person's medical records revealed normal neurological findings.  Also, Dr. Tikoo stated that Mr. Syracuse failed to document a complete and detailed neurological examination to justify such a test.  Dr. Tikoo opined that conservative management decisions can be made in the absence of EMG/NCV testing.  It is noted that Mr. Syracuse, after performing the testing recommended continued management as prescribed by the referring chiropractor.

 

Litigation

 

3/22/07            Nyack Hosp v. General Motors Acceptance Corp., 2007 NYSlipOp 02439 (Court of Appeals)

You Must Be First To Submit Your Claim, Including Verification, To Receive Priority Of Payment

The issue before the high court was whether an insurer is prohibited by 11 NYCRR §65-3.15 (priority of payments) from paying verified claims that are submitted to the insurer subsequent to a claim waiting for verification that exceeds $50,000.  The Court held that the insurer is not prohibited.

 

Plaintiff treated the eligible injured person ("EIP") from July 15, 2003 until August 6, 2003, as a result of injuries sustained in a motor vehicle accident.  The EIP had $50,000 in PIP and $25,000 in OBEL coverage for this motor vehicle accident.  The total amount for the services plaintiff rendered was $74,489.28. 

 

The insurer received plaintiff's bill and forms for claiming no-fault benefits on August 20, 2003.  On September 12, 2003, 16 days after receiving the forms, the insurer requested additional verification in the form of the EIP's complete inpatient hospital records.  The insurer claimed this verification was necessary to determine payment of the bill and properly assess medical necessity for the services rendered.  While waiting for the plaintiff to send the verification, the insurer received and paid claims for the EIP's lost wages and other medical expenses in total of $29,811.12.

 

On November 11, 2003, the insurer sent the EIP and OBEL election form as required by the regulation when the insurer has received claims for basic economic loss (wage, medical, other necessary) totaling $30,000.  On November 21, 2003, the insurer advised the plaintiff that its claim was delayed pending receipt of the OBEL election form from the EIP.  On November 24, 2003, the insurer received the OBEL election form from the EIP, who elected lost earnings.  By that date, only $19,325.67 of the $50,000 in PIP benefits remained.  On December 9, 2003, the insurer issued two checks to the plaintiff totaling $19,325.67 and advised that the policy was exhausted.

 

The plaintiff commenced this action alleging that the insurer failed to timely pay or deny its $74,489.28 claim and also violated the priority of payment regulation by paying other providers who submitted bills subsequent to plaintiff.  The Court of Appeals disagreed.

 

11 NYCRR §65-3.8 provides that no-fault benefits are overdue if not paid within 30 calendar days after the insurer received proof of claim, which includes verification of all relevant information.  If the insurer needs additional verification then under 11 NYCRR §65-3.5(b) it can be requested within 15 business days of receipt of the prescribed verification forms.  The priority of payment regulation, 11 NYCRR §65-3.15, provides:

 

when claims aggregate to more than $50,000, payments for basic economic loss shall be made to the applicant and/or an assignee in the order in which each service was rendered or each expense was incurred, provided claims therefore were made to the insurer prior to the exhaustion of the $50,000.  If the insurer pays the $50,000 before receiving claims for services rendered prior in time to those which were paid, the insurer will not be liable to pay such late claims.  If the insurer received claims of a number of providers of services, at the same time, the payments shall be made in the order of rendition of services.

(emphasis added).

 

The Court interpreted the word claims in §65-3.15 to encompass claims that are verified.

 

It is also noted that even though the insurer requested additional verification 1 day late it did not stop the delay of the claim pending verification.  Instead 11 NYCRR §65-3.8(j) provides that for purposes of counting the 30 calendar days after proof of claim (a verified claim) any deviation from the rule set out in the section, except for §65-3.6, shall reduce the 30 calendar days allowed.  In other words, the insurer once it received the verification it requested must reduce the 30 calendar days by one to 29 calendar days because its additional verification request was one day late.

 

3/15/07            Metroscan Med. Diagnostics, P.C. a/a/o Florence Goldberg v. Progressive Cas. Ins. Co., 2007 NYSlipOp 50500(U) (2d Dept. App. Term)

No Justiciable Issue - Insurer Waiting For Verification

Plaintiff's complaint was properly dismissed because the insurer's time frame to either pay or deny the claim was tolled due to a verification request.  The plaintiff submitted a bill for medical services rendered to the eligible injured person together with an incomplete assignment of benefits form.  The insurer requested verification in the form a properly completed assignment of benefits.  In response, the plaintiff sent an incomplete assignment of benefits form.  The insurer sent an additional verification request for the fully completed assignment of benefits form.  The plaintiff had yet to respond to the request for additional verification.  Rather, the instant lawsuit was commenced.  The plaintiff claimed that the insurer's additional verification request lacked specificity and failed to advise the plaintiff as to what documentation was needed.  Further, the plaintiff argued that the additional verification was unnecessary and merely an attempt to harass the plaintiff.

 

The Court disagreed.  The Court held that plaintiff's argument lacked merit and that plaintiff's response to the verification request was to resubmit the same assignment of benefit form that was incomplete in the first instance.

 

3/13/07            Channel Chiropractic, P.C. v. Country-Wide Ins. Co.  (App. Div., 1st Dept.)

Sure A Nurse Can Conduct a Peer Review

The insurer's reliance upon a nurses' review was proper in denying a claim for no-fault benefits based upon lack of medical necessity.  The Court held that the fact a nurse conducted the peer review did not make it invalid.  Rather, a nurse's peer review may be competent to establish the admissibility of medical opinions and conclusions as long as the reviewer's training, observations and actual experience to render the opinion is sufficient set forth.  See, Patil v. Country-Wide Ins. Co., 2006 NYSlipOp 50306.

 

3/12/07            Adam Marigliano, LMT a/a/o Santos Climaco, et. al. v. New York Cent. Mut. Fire Ins. Co., 2007 NYSlipOp 27104(U) (2d Dept. App. Term)

Insurance Department Opinion on Attorney's Fees Deemed Irrational and Unreasonable

The insurer sought an order revising plaintiff's attorney's fees on a judgment in the matter.  The insurer argued that plaintiff is only entitled to one set of attorney's fees based upon the total of all four bills.  The plaintiff argued that it was entitled to four sets of attorney's fees based upon each of the four bills.  The court agreed with the plaintiff.

 

The court reasoned that Insurance Law §5106(a) provides for reasonable attorney's fees for services performed in securing payment of an overdue claim subject to the limits promulgated by the Insurance Department.  Under 11 NYCRR §§65-4.6, 3.10, 3.19, and 4.10(j) attorney's fees are outlined.  Yet, 11 NYCRR §65-4.6 is the most pertinent section as it addresses attorney's fees in a court action where the applicant prevails:

 

(a)        If an arbitration was initiated or a court action was commenced by an attorney on behalf of an applicant and the claim or portion thereof was not denied or overdue at the time the arbitration proceeding was initiated or the action was commenced, no attorney's fees shall be granted.

 

***

(c)        Except as provided in subdivisions (a) and (b) of this section, the minimum attorney's fee payable pursuant to this subpart shall be $60.

 

***

 

(e)        For all other disputes subject to arbitration, subject to the provisions of subdivisions (a) and (c) of this section, the attorney's fee shall be limited as follows: 20 percent of the amount of first-party benefits, plus interest thereon, awarded by the arbitrator or court, subject to a maximum fee of $850.

 

The Court cited to a number of decisions where the trial courts awarded attorney's fees on each bill.  Yet, the Court acknowledged an "informal" opinion letter from the Insurance Department dated October 8, 2003, which provided that attorney's fees are awarded based upon the aggregate of the bills at issue in a lawsuit or arbitration. 

 

Due to the lack of any authority in the First Department on this issue, the Court turned to an analysis of the legislative intent of the statute, which it determined was to ensure strict compliance with the 30-day rule to pay or deny a claim to avoid judicial intervention by imposing essentially a penalty on an insurer through interest and attorney's fees.  The Court reasoned that attorney's fees are payable on each claim, which this Court defined as a proof of claim or each bill for services rendered.

 

Next, the Court turned to review the historical application of the statute and concluded that the cases held that each cause of action for a different assignor is a claim for which attorney's fees can be recovered.

 

Finally, the Court considered and dismissed the Insurance Department opinion.  The Court stated that the opinion is not binding on any court.  Further, since the question before the court was pure statutory interpretation there was little basis to rely upon the expertise of the Insurance Department and its interpretative regulations.  The Court further noted that in the event the regulations promulgated by the Insurance Department are either contrary to the Insurance Law's clear wording or are irrational and unreasonable they will not be upheld.

 

The Court held that the Insurance Department's "informal" opinion was an irrational and unreasonable interpretation of the statute and ran contrary to the legislative intent.  Accordingly, the Court rejected the opinion.

 

3/12/07            Support Billing & Management Co. a/a/o Michael Santiago, et. al. v. Allstate Ins. Co., 2007 NYSlipOp 50496(U) (2d Dept. App. Term)

Stamped Facsimile of Peer Reviewer's Signature Inadmissible

Plaintiff's summary judgment motion was granted on the basis that the insurer's peer review report contained a stamped facsimile signature of the physician who performed the peer review.  The Court held that peer review reports bearing a stamped facsimile of the physician's signature without evidence that it was placed on the report by the physician was inadmissible.  See, CPLR 2106; Dowling v. Mosey, 32 AD3d 1190 (2006).

 

3/8/07              Bedford Park Med. Practice, P.C. a/a/o William Perez v. Progressive Cas. Ins. Co., 2007 NYSlipOp 50494(U) (2d Dept. App. Term)

Plaintiff Cannot Cure Defect of Insufficient Affidavit Regarding Business Records in Initial Moving Papers by Submitting an Affidavit from the Correct Individual in Its Reply Papers

Plaintiff failed to establish prima facie case as counsel's affirmation provided no probative value as to admission of business records.  Further, plaintiff's attempt to cure the defect by submitting on reply an affidavit from a corporate officer was rejected.  The Court, relying upon North Acupuncture, P.C. v. State Farm Ins. Co., 14 Misc3d 130 [A], held that plaintiff cannot establish entitlement to summary judgment by submitting sufficient evidence in its reply papers to cure its defective initial moving papers.

 

 

Across Borders

 

Visit the Hot Cases section of the Federation of Defense & Corporate Counsel website, www.thefederation.org ranked among the top five legal research websites in an article published in Litigation News, a publication of the Litigation Section of the American Bar Association. Dan Kohane serves as the FDCC’s President and Website Editor Emeritus.

 

 

 

CASES IN FULL TEXT

 

Bovis Lend Lease LMB Inc. v. Garito Contracting, Inc.


Melito & Adolfsen P.C., New York (Louis G. Adolfsen of
counsel), for Garito Contracting, Inc., appellant.
Michael E. Pressman, New York, for Twin City Fire Insurance
Company, appellant.
Newman Fitch Altheim Myers, P.C., New York (Olivia M.
Gross of counsel), for respondents.

Order, Supreme Court, New York County (Judith J. Gische, J.), entered April 3, 2006, which granted plaintiffs' motion for summary judgment, denied defendant Garito's cross motion to dismiss the complaint, inter alia, and denied defendant Twin City's cross motion for summary judgment, unanimously affirmed, with costs.

Plaintiffs were entitled to the declaratory relief they sought. It is undisputed that there was a trade contract between defendant Twin City's insured (Garito) and plaintiff Bovis Lend Lease. Although the contract was lost, Bovis properly established, through extrinsic evidence, that it required Garito to procure insurance coverage on its behalf (see Vasiliades v Lehrer McGovern & Bovis, 3 AD3d 400, 402 [2004]; McKenna v Lehrer McGovern Bovis, 302 AD2d 329, 330-331 [2003]). Garito's testimony that he did not recall whether or not the contract was executed is insufficient to overcome this extrinsic evidence. The commercial general liability coverage policy at issue provided that an additional insured was any entity that entered into a written contract or agreement with the insured (Garito) to provide the insurance afforded by the policy. Having thus satisfactorily proven the existence of such a contract, plaintiffs were properly awarded summary judgment and a declaration that they are covered under the policy. Contrary to defendants' contentions, coverage is the only issue herein. The liability issues raised in the underlying personal injury action need not be determined for the purpose of determining coverage.

Defendant insurer did not submit any evidence that it timely disclaimed coverage on the basis of late notice. Its inability to demonstrate that it issued a written disclaimer of coverage citing the failure of Bovis to give prompt notice in accordance with the requirement of the policy precludes a finding that there was an effective disclaimer (Matter of Firemen's Fund Ins. Co. of Newark v Hopkins, 88 NY2d 836 [1996]); 151 E. 26th St. Assoc. v QBE Ins. Co., 33 AD3d 452 [2006]). The record supports plaintiffs' assertion that a tender was effectuated through
notice made by AIG claims services. Contrary to Twin City's position, our recent holdings in AIU Ins. Co. v Investors Ins. Co. (17 AD3d 259 [2005]) and Tower Ins. Co. of N.Y. v Mike's Pipe Yard & Bldg. Supply Corp. (__ AD3d __, 2006 NY Slip Op 09518 [Dec 19, 2006]) do not require a different result. Both cases concerned notice to a broker as insufficient to prove notice to an insurance carrier. In this case, notice by AIG was provided directly to Twin City.

We have considered the additional arguments raised on this appeal and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

Ortega v.  Maldonado


Akin & Smith, LLC, New York (Ismail S. Sekendiz of counsel), for appellant.
Picciano & Scahill, P.C., Westbury (Gilbert J. Hardy of  counsel), for respondents.

 

Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered February 17, 2006, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants in this no-fault motor vehicle accident case met their burden of establishing, as a matter of law, that plaintiff had not sustained a "serious injury." Plaintiff then failed to meet his burden of demonstrating that he had sustained such an injury by submitting objective proof of its nature and degree (Gaddy v Eyler, 79 NY2d 955 [1992]).

While plaintiff's expert, a non-treating physician who examined plaintiff in connection with this action, performed certain range of motion tests, there were no affirmations submitted from treating physicians as to plaintiff's condition contemporaneous to the accident, or submission of MRI films or sworn reports from doctors reviewing said films. The expert referred to unspecified MRI reports, but made no claim that he actually reviewed the films or that the reports were certified (see Perez v Rodriquez, 25 AD3d 506, 508 [2006]; Jeng-Jen Chen v Marc, 10 AD3d 295 [2004]). Nor did plaintiff demonstrate, through competent objective proof, "a medically determined injury or impairment of a nonpermanent nature" that would have imposed substantial limitations on his customary daily activities (Insurance Law § 5102[d]), to an extent greater than some "slight curtailment" (Licari v Elliott, 57 NY2d 230, 236 [1982]). Finally, plaintiff failed to offer documentary evidence to explain the gap in his treatment (see Pommells v Perez, 4 NY3d 566, 574 [2005]).

We have considered plaintiff's remaining arguments and find them without merit.

 

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 22, 2007

 

Tagger v. Olympic Van Line, Inc.



Chalos, O'Connor & Duffy, LLP, Port Washington, N.Y. (Michael Siravo of counsel),

for appellants.
Robert Weiss, New York, N.Y., for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated March 8, 2006, as granted that branch of the plaintiff's motion which was for summary judgment dismissing the eighth "affirmative defense" asserting that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

 

ORDERED that the order is affirmed insofar as appealed from, with costs.

 

The Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was for summary judgment dismissing the eighth "affirmative defense." The plaintiff made a prima facie showing that the subject accident caused her to sustain a fracture, and thus, a "serious injury" within the meaning of Insurance Law § 5102(d). In opposition, the defendants failed to raise a triable issue of fact (see generally Baez v Rahamatali, 6 NY3d 868, 869; Cervino v Gladysz-Steliga, 36 AD3d 744; cf. Benedetto v Carrera Realty Corp., 32 AD3d 874, 876).
MASTRO, J.P., RITTER, SKELOS, CARNI and McCARTHY, JJ., concur.

 

Bilodeau-redeye v. Preferred Mut. Ins. Co.




Appeal from an order of the Supreme Court, Genesee County (Robert C. Noonan, A.J.), entered August 2, 2006. The order denied defendant's motion to vacate an order granting a default judgment.


Brown & Kelly, LLP, Buffalo (Nicole B. Palmerton Of Counsel), For Defendant-Appellant.
Law Offices Of Michael D. Braisted, Williamsville (Michael D. Braisted Of Counsel),

For Plaintiff-Respondent.


It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law with costs, the motion is granted and the order dated December 6, 2006 is vacated.

Memorandum: Plaintiff commenced this action seeking "supplementary uninsured/underinsured motorists coverage" for injuries that she allegedly sustained in a motor vehicle collision. Supreme Court erred in denying the motion of defendant to vacate the order granting a default judgment against it. The court determined that defendant established a reasonable excuse for the default but denied the motion upon its further determination that defendant failed to make the requisite showing of the existence of a meritorious defense (see CPLR 5015 [a] [1]; Quis v Bolden, 298 AD2d 375). We reverse. "The quantum of proof required to prevail [on a motion to vacate a default order or judgment] is not as great as is required to oppose summary judgment" (Clark v MGM Textiles Indus., 307 AD2d 520, 521). Here, defendant met its burden by establishing " that there is support in fact for [its] . . . defenses' " (Callahan Hydraulics v Mechanical Man Car Wash Mfg. Co., 43 AD2d 896, 897). Where the moving party meets that burden, courts have a liberal policy with respect to vacating defaults (see Cavallaro v Cavallaro, 278 AD2d 812, 813, lv dismissed 96 NY2d 792). In support of its motion, defendant established that plaintiff may have been primarily if not solely at fault for the occurrence of the accident, having exited her driveway into the path of a vehicle traveling with the right of way. Moreover, defendant established that plaintiff suffered from preexisting medical conditions and thus that the injuries allegedly sustained in the accident may not meet the serious injury threshold under Insurance Law § 5102 (d). Defendant also established that the accident may not have been a proximate cause of the injuries allegedly sustained in the accident. We thus conclude that the court erred in denying defendant's motion, particularly in view of "the judicial preference for resolving cases on their merits" (Cavagnaro v Frontier Cent. School Dist., 17 AD3d 1099).

 

 

Hunter v.  Siegel, Kelleher & Kahn



Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), entered April 20, 2006 in a legal malpractice action. The order denied defendants' motion for summary judgment dismissing the complaint.


Bond, Schoeneck & King, LLP, Syracuse (Aaron J. Ryder of Counsel), for Defendants-Appellants.
Brady & Schaefer, LLP, Amherst (Alan P. Schaefer Of Counsel), for Plaintiff-Respondent.


It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and dismissing the complaint insofar as the complaint, as amplified by the bill of particulars, alleges that plaintiff would have been successful in the underlying action based upon a serious injury she sustained under the 90/180 category of serious injury within the meaning of Insurance Law § 5102 (d) and as modified the order is affirmed without costs.

 

Memorandum: Plaintiff retained defendants to commence a personal injury action to recover damages for injuries she allegedly sustained in an automobile accident on March 23, 1999. It is undisputed that defendants did not timely commence that action. Plaintiff thereafter commenced this legal malpractice action alleging that she would have been successful in the underlying action based upon serious injuries she sustained under the significant limitation of use and 90/180 categories of serious injury within the meaning of Insurance Law § 5102 (d), and that she was deprived of a remedy for her injuries by defendants' negligence.

 

Contrary to the contention of defendants, Supreme Court properly denied their motion for summary judgment dismissing the complaint insofar as the complaint, as amplified by the bill of particulars, alleges that plaintiff sustained a serious injury under the significant limitation of use category. In support of their motion, defendants had to establish that "plaintiff is unable to prove at least one of [the] essential elements of a malpractice cause of action" (Ippolito v McCormack, Damiani, Lowe & Mellon, 265 AD2d 303), and here defendants asserted in support of their motion that plaintiff did not sustain a serious injury in the March 1999 accident and thus would not have been successful in the underlying action even if it had been timely commenced. Defendants submitted the affidavit of a medical expert who opined that plaintiff sustained only a mild cervical strain in the March 1999 accident and that plaintiff's injuries were the result of a second motor vehicle accident occurring in November 1999 (see Pommells v Perez, 4 NY3d 566, 577; see generally Clark v Perry, 21 AD3d 1373). The expert also noted, however, that plaintiff's "cervical spine was limited in left rotation by 50%, extension by 50%, and flexion by 25%," that plaintiff had been diagnosed with disc herniations, and that she was required to undergo an anterior cervical discectomy and fusion in an attempt to correct those conditions. We thus conclude that defendants' submissions established that plaintiff had a significant limitation of use of a body function or system (see generally Toure v Avis Rent A Car Sys., 98 NY2d 345, 353), and that plaintiff's burden in opposition was therefore limited to addressing the alleged lack of causation (see Clark, 21 AD3d at 1374). In response, plaintiff submitted competent medical evidence establishing that her injuries were caused in part by the March 1999 accident and thus raised a triable issue of fact whether she would have been successful in the underlying action based upon a serious injury under the significant limitation of use category (see generally Pommells, 4 NY3d at 577).

 

We agree with defendants, however, that plaintiff would not have been successful in the underlying action based upon a serious injury under the 90/180 category, and we therefore modify the order accordingly. Defendants established that plaintiff resumed working immediately after the subject accident and continued many of her normal activities throughout the relevant period, and plaintiff failed to raise a triable issue of fact whether she was unable to perform substantially all of the material acts that constituted her usual and customary daily activities (see Robinson v Polasky, 32 AD3d 1215; Burns v McCabe, 17 AD3d 1111).
Entered: March 16, 2007

 

 

Geba v. Obermeyer



Magnotti Law Firm, PLLC (David Horowitz, P.C., New York, N.Y.
[Steven J. Horowitz] of counsel), for appellants.
Kelly, Rode & Kelly, LLP, Mineola, N.Y. (Paul Loumeau of counsel), for respondents.

 

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Minardo, J.), dated October 24, 2005, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Bohdan N. Geba did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

 

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Bohdan N. Geba did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is denied.

 

Contrary to the Supreme Court's determination, the defendants failed to meet their prima facie burden of showing that the plaintiff Bohdan N. Geba (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). In support of their motion, the defendants relied upon, among other things, the affirmed medical report of their examining neurologist, who examined the injured plaintiff on October 6, 2004. In discussing range of motion testing performed on the injured plaintiff on that date, he merely stated that such testing revealed no "limitation of mobility in the head, neck, back, or limbs." While he made such findings, he failed to set forth the objective testing he performed in order to come to the conclusion that the injured plaintiff did not sustain any limitations in cervical and lumbar range of motion as a result of the subject accident (see Schacker v County of Orange, 33 AD3d 903; Ilardo v New York City Tr. Auth., 28 AD3d 610, 611; Kelly v Rehfeld, 26 AD3d 469, 470; Nembhard v Delatorre, 16 AD3d 390, 391; Black v Robinson, 305 AD2d 438, 439). Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, we need not address the sufficiency of the plaintiffs' opposition papers.

 

 

Iusmen v. Konopka



Napoli Bern Ripka, LLP, New York, N.Y. (Denise A. Rubin of counsel), for appellant.
James R. Pieret, Garden City, N.Y. (Michael J. Colleary of counsel), for respondents.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kelly, J.), entered December 30, 2005, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

 

ORDERED that the order is affirmed, with costs.

 

The defendants established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact. To the extent that the plaintiff relied on her hospital records and treatment reports of Long Island City Pain Management & Rehabilitation Offices, P.C., those submissions were without any probative value in opposing the defendants' motion since they were either uncertified (see Mejia v DeRose, 35 AD3d 407, 408), or unaffirmed (see Grasso v Angerami, 79 NY2d 813, 814; Bycinthe v Kombos, 29 AD3d 845, 845-846; Pagano v Kingsbury, 182 AD2d 268, 270).

 

The affirmed medical report and affirmation of the plaintiff's examining neurologist also failed to raise a triable issue of fact. While the plaintiff's examining neurologist set forth limitations in the plaintiff's cervical and lumbar spine range of motion based on a recent examination in his affirmed medical report and affirmation, neither he nor the plaintiff proffered competent medical evidence showing range of motion limitations in the plaintiff's spine that were contemporaneous with the subject accident (see Felix v New York City Tr. Auth., 32 AD3d 527, 528; Ramirez v Parache, 31 AD3d 415, 416; Bell v Rameau, 29 AD3d 839, 839; Ranzie v Abdul-Massih, 28 AD3d 447, 448; Li v Woo Sung Yun, 27 AD3d 624, 625; Suk Ching Yeung v Rojas, 18 AD3d 863, 864; Nemchyonok v Peng Liu Ying, 2 AD3d 421). It is also apparent that the plaintiff's examining neurologist relied on the unsworn reports of others in reaching the conclusions in his affirmed report and affirmation (see Elder v Stokes, 35 AD3d 799; Felix v New York City Tr. Auth., supra; Vallejo v Builders for Family Youth, Diocese of Brooklyn, Inc., 18 AD3d 741, 742; Mahoney v Zerillo, 6 AD3d 403; Friedman v U-Haul Truck Rental, 216 AD2d 266, 267). Furthermore, the affirmed submissions of the plaintiff evincing that she suffered from herniated discs in her lumbar and cervical spine were insufficient, on their own, to establish a serious injury. The mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration (see Mejia v DeRose, supra at 408; Yakubov v CG Trans Corp., 30 AD3d 509, 510; Cerisier v Thibiu, 29 AD3d 507, 508; Bravo v Rehman, 28 AD3d 694, 695; Kearse v New York City Tr. Auth., 16 AD3d 45, 50). The plaintiff's self-serving affidavit was insufficient to satisfy this requirement (see Elder v Stokes, supra at 800; Felix v New York City Tr. Auth., supra).
CRANE, J.P., SANTUCCI, FLORIO, DILLON and BALKIN, JJ., concur.

 

 

 

Manning v. Tejeda



Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Holly E. Peck of counsel), for appellant.
Harmon, Linder & Rogowsky, Mineola, N.Y. (Mitchell Dranow of counsel), for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated May 19, 2006, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted.

Contrary to the plaintiff's contention, the defendant established his prima facie entitlement to judgment as a matter of law by tendering competent evidence that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident (see Gaddy v Eyler, 79 NY2d 955, 956-957; Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff did not offer medical proof in admissible form (see Zuckerman v City of New York, 49 NY2d 557, 562; Pagano v Kingsbury, 182 AD2d 268, 270) that was contemporaneous with the subject accident substantiating his claim of serious injury (see Zinger v Zylberberg, 35 AD3d 851; Elder v Stokes, 35 AD3d 799; Felix v New York City Tr. Auth., 32 AD3d 527; Li v Woo Sung Yun, 27 AD3d 624, 625). Evidence of disc bulges, without more, is insufficient to establish a serious injury (see Kearse v New York City Tr. Auth., supra at 50; see also Pommells v Perez, 4 NY3d 566, 574). To the extent the plaintiff tendered medical evidence in admissible form, such evidence related only to his current complaints and was therefore insufficient to defeat summary judgment (see Zinger v Zylberberg, supra; Elder v Stokes, supra; Knijnikov v Mushtaq, 35 AD3d 545). Moreover, the plaintiff failed to offer any reasonable explanation for the complete cessation of all treatment from approximately September of 2002 until November of 2005 (see Pommells v Perez, supra at 574).
RIVERA, J.P., SPOLZINO, FISHER, LIFSON and DICKERSON, JJ., concur.

 

 

Marziotto v. Striano



Mitchell A. Barnett, Garden City, N.Y., for appellants.
Epstein, Rayhill & Frankini, Woodbury, N.Y. (Lee-Ann R. Trupia of counsel), for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Galasso, J.), dated February 3, 2006, as granted that branch of the cross motion of the defendant Peter J. Striano which was for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff Marlene Marziotto did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

 

ORDERED that the order is affirmed insofar as appealed from, with costs.

 

The defendant Peter J. Striano established, prima facie, that the plaintiff Marlene Marziotto (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). Contrary to the plaintiffs' contentions on appeal, they failed to raise a triable issue of fact in opposition. The respective affirmations, with annexed submissions, of the injured plaintiff's treating orthopedist and physician were insufficient to raise a triable issue of fact since the findings contained therein were not based on a recent examination of the injured plaintiff (see Gomez v Epstein, 29 AD3d 950, 951; Legendre v Bao, 29 AD3d 645; Cerisier v Thibiu, 29 AD3d 507; Tudisco v James, 28 AD3d 536, 537; Barzey v Clarke, 27 AD3d 600; Murray v Hartford, 23 AD3d 629; Farozes v Kamran, 22 AD3d 458). Moreover, in his affirmation, the injured plaintiff's treating physician admittedly relied on the unsworn magnetic resonance imaging report of another physician in reaching his diagnosis of the injured plaintiff therein, thus rendering his affirmation without probative value in opposing Striano's cross motion (see Elder v Stokes, 35 AD3d 799; Felix v New York City Tr. Auth., 32 AD3d 527; Vallejo v Builders for Family Youth, Diocese of Brooklyn, Inc., 18 AD3d 741, 742; Mahoney v Zerillo, 6 AD3d 403; Friedman v U-Haul Truck Rental, 216 AD2d 266, 267). The remaining submission of the plaintiffs, which consisted of an unaffirmed magnetic resonance imaging report of the injured plaintiff's lumbosacral spine dated February 24, 2003, was also without probative value in opposing the cross motion since that submission was unaffirmed (see Grasso v Angerami, 79 NY2d 813, 814; Bycinthe v Kombos, 29 AD3d 845; Pagano v Kingsbury, 182 AD2d 268, 270). RIVERA, J.P., SPOLZINO, FISHER, LIFSON and DICKERSON, JJ., concur.

 

Santiago v. Rodriguez



John P. Humphreys (Carol R. Finocchio, New York, N.Y. [Mary Ellen O'Brien] of counsel),

for appellants.
Michael F. Mongelli II, P.C., Flushing, N.Y. (Angelo M. Grasso of counsel), for respondents.

 

DECISION & ORDER

 

In an action, inter alia, to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Dabiri, J.), dated December 17, 2004, which denied their motion for summary judgment dismissing the complaint on the ground that Jose Santiago did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

 

ORDERED that the order is affirmed, with costs.

 

The defendants, via their submissions, made a prima facie showing that Jose Santiago (hereinafter Santiago) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). In support of their motion, the defendants relied on, among other things, Santiago's deposition testimony.

 

However, the plaintiffs, in opposition, raised a triable issue of fact. The plaintiffs relied on the report of Santiago's treating chiropractor, which specified the decreased ranges of motion in Santiago's cervical spine and dorsolumbar spine as evidenced by objective findings, as well as evidence of herniated and bulging discs in the cervical and lumbar spine confirmed by magnetic resonance imaging tests. The chiropractor, in his report, also concluded that Santiago's injuries and limitations were permanent, and causally related to the subject accident. This evidence was sufficient to raise a triable issue of fact as to whether Santiago sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Lim v Tiburzi, 36 AD3d 671; Shpakovskaya v Etienne, 23 AD3d 368; Clervoix v Edwards, 10 AD3d 626; Acosta v Rubin, 2 AD3d 657; Rosado v Martinez, 289 AD2d 386; Vitale v Lev Express Cab Corp., 273 AD2d 225). Any argument raised by the defendants concerning the admissibility of the chiropractor's report was waived, as the defendants failed to raise that issue before the Supreme Court (see Scudera v Mahbubur, 299 AD2d 535; Sam v Town of Rotterdam, 248 AD2d 850).
MASTRO, J.P., RITTER, SKELOS, CARNI and McCARTHY, JJ., concur.

 

Fudol v. Sullivan



James G. Bilello, Westbury, N.Y. (Patricia McDonagh of counsel), for appellants.
Peters Berger Koshel & Goldberg, P.C., Brooklyn, N.Y. (Marc A. Novick of counsel),

for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated February 23, 2006, as denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

 

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint since the defendants failed to establish, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). The defendants' examining neurologist, in his affirmed medical report, noted that there were limitations in the range of motion of the plaintiff's lumbar spine upon his examination, but he did not sufficiently quantify or qualify the limitation to establish the absence of a significant limitation of motion (see McCrary v Street, 34 AD3d 768; Whittaker v Webster Trucking Corp., 33 AD3d 613; Yashayev v Rodriguez, 28 AD3d 651; Kaminsky v Waldner, 19 AD3d 370). Moreover, where this neurologist did provide a numerical quantification regarding his testing of the lumbar spine range of motion, he failed to compare those findings to the normal range of motion (see Iles v Jonat, 35 AD3d 537; Mirochnik v Ostrovskiy, 35 AD3d 413; Kavanagh v Singh, 34 AD3d 744; Caracci v Miller, 34 AD3d 515; Agathe v Tun Chen Wang, 33 AD3d 737; Mondi v Keahon, 32 AD3d 506; Benitez v Mileski, 31 AD3d 473; Abraham v Bello, 29 AD3d 497; Yashayev v Rodriguez, 28 AD3d 651; Sullivan v Dawes, 28 AD3d 472). Since the defendants failed to satisfy their prima facie burden, it is unnecessary to consider whether the plaintiff's papers in opposition were sufficient to raise a triable issue of fact (see McCrary v Street, supra; Iles v Jonat, supra; Coscia v 938 Trading Corp., 283 AD2d 538).
SCHMIDT, J.P., KRAUSMAN, GOLDSTEIN, COVELLO and ANGIOLILLO, JJ., concur.

 

Diaz v. Anasco



Goidel & Siegel, LLP, New York (Steven Cohen of counsel), for appellant.
James P. Nunemaker, Jr. & Associates, Uniondale (Marcella Gerbasi Crewe of counsel),

for respondents.

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered on or about January 4, 2006, which granted defendants' motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for partial summary judgment, unanimously affirmed, without costs.

To recover damages for non-economic loss related to personal injury allegedly sustained in a motor vehicle accident, the plaintiff is required to present nonconclusory expert evidence sufficient to support a finding not only that the alleged injury is "serious" within the meaning of Insurance Law § 5102(d), but also that the injury was causally related to the accident (see Franchini v Palmieri, 1 NY3d 536 [2003]). Absent an explanation of the basis for concluding that the injury was caused by the accident, as opposed to other possibilities evidenced in the record, an expert's "conclusion that plaintiff's condition is causally related to the subject accident is mere speculation," insufficient to support a finding that such a causal link exists (Montgomery v Pena, 19 AD3d 288, 290 [2005]).

Defendants established their prima facie entitlement to summary judgment, relying on diagnostic imaging and reports by plaintiff's treating physicians to establish that her injuries are not causally related to the accident (Franchini v Palmieri, 1 NY3d 536, supra), and thus do not satisfy the serious injury threshold of § 5102(d). Plaintiff's submission in response "left wholly unanswered the question whether the claimed symptoms diagnosed by [her treating physician] were caused by the accident" (Pommells v Perez, 4 NY3d 566, 575 [2005]). Her submissions also failed to meet the statutory test of demonstrating an inability to perform substantially all of the material acts that constituted her usual and customary daily activities for 90 of the 180 days following the accident (see Medina-Santiago v Nojovits, 5 AD3d 253 [2004]).

We have considered plaintiff's remaining contentions and find them without merit.

In the Matter of Assurance Company of America v. Delgrosso


Barasch McGarry Salzman & Penson, New York, N.Y. (Dana
Cohen and Dominique Penson of counsel), for appellant.
McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y.
(Barry L. Manus of counsel), for
respondent.

 

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to stay arbitration of an underinsured motorist claim, the appeal is from an order of the Supreme Court, Rockland County (Smith, J.), entered October 27, 2005, which granted the petition and permanently stayed arbitration.

ORDERED that the order is affirmed, with costs.

The supplementary uninsured/underinsured motorists endorsement (hereinafter the SUM endorsement) of the insurance policy (hereinafter the policy) issued by the petitioner, Assurance Company of America (hereinafter the insurer), to the appellant, Fred Delgrosso (hereinafter the insured), required the insured to provide the insurer a notice of claim under the SUM endorsement "[a]s soon as practicable." "In interpreting [that] phrase . . . in the underinsurance context. . . the insured must give notice with reasonable promptness after the insured knew or should reasonably have known [] that the tortfeasor was underinsured" (Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487, 495; see Rekemeyer v State Farm Mut. Auto Ins. Co., 4 NY3d 468, 474; Matter of Continental Ins. Co. v Marshall, 12 AD3d 508; Matter of Interboro Mut. Indem. Ins. Co. v Brown, 300 AD2d 660; Matter of Nationwide Mut. Ins. Co. v DiGregorio, 294 AD2d 579, 580).

At bar, the insured failed to submit any notice of claim for two years and two months after the accident, one year and three months after he commenced a personal injury action seeking 10 million dollars in damages, and 11 months after he knew the limits of the policy of Luis Alvarado, one of the tortfeasors. Therefore, since the insured knew or should reasonably have known that Alvarado was underinsured 11 months before filing the notice of claim under the SUM endorsement, his notice of claim was untimely (see Rekemeyer v State Farm Mut. Auto Ins. Co., supra; Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, supra at 496-497). Moreover, since the insurer did not rely on the late notice of legal action defense (see e.g. Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491, 498), but rather, it relied on a late notice under a SUM endorsement where the insured did not previously give any notice of the accident (cf. Rekemeyer v State Farm Mut. Auto Ins. Co., supra at 476), there was no requirement for the insurer to demonstrate prejudice.

Accordingly, under these circumstances, the Supreme Court properly granted the petition and permanently stayed arbitration.

 

Latha Restaurant Corp., doing business as Marathon Diner v. Tower Insurance Company

Morton S. Minsley, New York, for appellant.
Law Office of Max W. Gershweir, New York (Max W.
Gershweir of counsel), for respondent.

Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered January 19, 2006, which, in this action to recover insurance proceeds, granted the motion of defendant Tower Insurance Company for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Plaintiff's proof of loss statement included duplicative items, items in which it demonstrably had no insurable interest and a representation of loss attributable to the expense of debris removal, an expense it later admitted it never incurred. Even if these items were credited, plaintiff's demonstrated losses amounted to only $275,000. The nearly $400,000 remainder of plaintiff's claimed loss in its proof of loss statement
remains unaccounted for and unexplained. Overvaluation of insured property raises a presumption of fraud in proportion as to the excess, and such presumption becomes conclusive where, as here, the insurer demonstrates that the difference between the amounts claimed in the proof of loss and the losses actually shown to have been sustained are grossly disparate and without reasonable explanation (see Saks & Co. v Continental Ins. Co., 23 NY2d 161, 165 [1968]).

Plaintiff's attempt to attribute the gross disparity here at issue solely to its public adjuster is unavailing under agency principles. The adjuster was acting within the scope of his authority when he submitted the claims. Moreover, plaintiff signed the sworn proof of loss, and was the primary beneficiary of the representations contained therein (see Chubb & Son v Consoli, 283 AD2d 297 [2001]).

Finally, plaintiff's refusal to provide requested information material and relevant to defendant's investigation of the claimed loss breached the cooperation clause of the policy, and, on that basis alone, coverage may be disclaimed (see Evans v International Ins. Co., 168 AD2d 374, 374-375 [1990]).

We have considered plaintiff's remaining contentions and find them unavailing.

HARLEYSVILLE INSURANCE COMPANY, PLAINTIFF-APPELLANT,

v

TRAVELERS INSURANCE COMPANY AND SAVARINO CONSTRUCTION SERVICES, INC., DEFENDANTS-RESPONDENTS.




Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered February 6, 2006 in a declaratory judgment action. The judgment denied the motion of plaintiff for summary judgment and granted the cross motion of defendants for summary judgment.


CHELUS, HERDZIK, SPEYER, MONTE & PAJAK, P.C., BUFFALO (GREGORY V. PAJAK OF COUNSEL), FOR PLAINTIFF-APPELLANT.
HURWITZ & FINE, P.C., BUFFALO (DAN D. KOHANE OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

 

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by denying the cross motion in part, vacating the declaration that plaintiff is solely responsible for the costs associated with the settlement of the underlying action and the provision dismissing the complaint and granting judgment as follows: It is ADJUDGED AND DECLARED that defendant Travelers Insurance Company is obligated to provide excess insurance coverage for the costs associated with the settlement of the underlying action


and as modified the judgment is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking a judgment declaring, inter alia, that defendant Travelers Insurance Company (Travelers) is obligated as a coinsurer of defendant Savarino Construction Services, Inc. (Savarino) to reimburse plaintiff for one half of the costs incurred by plaintiff in the defense and settlement of the underlying personal injury action against, inter alia, Savarino. We conclude that Supreme Court properly granted defendants' cross motion for summary judgment insofar as it sought a declaration that plaintiff is the sole primary insurer of Savarino in the underlying action and thus that plaintiff is primarily responsible for the costs incurred in the defense and settlement of the underlying action, although our reasoning differs from that of the court. We further conclude, however, that Travelers is obligated to provide excess coverage to Savarino in the underlying action and thus that the court erred in granting the cross motion insofar as it sought a declaration that plaintiff is solely responsible for the costs associated with the settlement of the underlying action and in failing to grant judgment declaring that Travelers is obligated to provide excess coverage. In addition, because this is a declaratory judgment action, we conclude that the court erred in dismissing the complaint (see Tumminello v Tumminello, 204 AD2d 1067). We therefore modify the judgment accordingly.

Pursuant to a contract between plaintiff's named insured, W.C. Roberson Plumbing & Construction Corp. (Roberson), and Savarino, Savarino was added as an additional insured on Roberson's commercial general liability policy with plaintiff; Savarino was not added as an additional insured on a separate excess liability policy purchased by Roberson from plaintiff. Savarino is the named insured in a commercial general liability policy issued by Travelers.

Pursuant to the contract between Roberson and Savarino, plaintiff defended Savarino in the underlying personal injury action commenced by an employee of Roberson. Savarino settled with Roberson's employee in the underlying action and plaintiff paid Roberson's employee the entirety of its primary policy covering Savarino as an additional insured and a portion of its excess policy purchased by Roberson. Plaintiff contends that its policy covering Savarino as an additional insured and the Travelers policy are both primary and that, pursuant to the "other insurance" clauses in both its primary policy and the Travelers policy, Travelers is obligated to share equally in the costs associated with the defense of Savarino and the subsequent settlement of the underlying action. We reject that contention.

Initially, we agree with plaintiff that the court erred in determining that Pecker Iron Works of N.Y. v Traveler's Ins. Co. (99 NY2d 391) is controlling here. In that case, the Court concluded that an additional insured was entitled to primary coverage under a commercial general liability policy. Here, plaintiff does not dispute that Savarino, an additional insured under its policy, is entitled to primary coverage. Rather, the dispute is whether, pursuant to the terms of the policies, Travelers' coverage of Savarino is primary along with plaintiff's primary coverage of Savarino as an additional insured (see id. at 393), or whether Travelers' coverage of Savarino is excess to plaintiff's coverage. We have therefore examined "the purpose each policy was intended to serve as evidenced by both its stated coverage and the premium paid for it . . ., as well as . . . the wording of its provision concerning excess insurance" (State Farm Fire & Cas. Co. v LiMauro, 65 NY2d 369, 374; see United States Fire Ins. Co. v CNA, 300 AD2d 1054, 1055). Although we note that both policies provide coverage for sums that the insured is legally obligated to pay as damages for bodily injury and that the premium Savarino paid Travelers was for primary coverage (see generally General Motors Acceptance Corp. v Nationwide Ins. Co., 4 NY3d 451, 457), we disagree with plaintiff that the "other insurance" clauses in the policies are identical and that they therefore both provide primary coverage. Pursuant to the "other insurance" clauses in both policies, the policies provide primary coverage except that the coverage is excess where any other primary insurance is available to the insured for which the insured has been added as an additional insured by attachment of an endorsement. Savarino is added as an additional insured on plaintiff's primary policy, and thus the excess clause is triggered in the Travelers policy but not in plaintiff's policy. We therefore conclude that the excess coverage clauses are not "deemed to cancel each other out" and thus do not result in coinsurance (State Farm Fire & Cas. Co., 65 NY2d at 374). Rather, pursuant to the terms of the policies, Travelers' coverage is excess to plaintiff's coverage, and we therefore conclude that coverage under plaintiff's primary policy must be exhausted before Travelers is required to contribute under its policy (see generally Cheektowaga Cent. School Dist. v Burlington Ins. Co., 32 AD3d 1265, 1268).

Plaintiff exhausted its primary policy of $1,000,000 in its settlement with Roberson's employee, and Travelers is thus obligated under the terms of its policy to reimburse plaintiff for the amount paid to Roberson's employee, on behalf of Savarino, in excess of that amount. We note that, in the underlying third-party action, Savarino was granted summary judgment against Roberson on its cause of action for contractual indemnification (Nicholas v EPO-Harvey Apts., Ltd. Partnership, 31 AD3d 1174). Travelers would therefore have a right of subrogation against Roberson in that third-party action (see Allstate Ins. Co. v Stein, 1 NY3d 416, 422), and, as a practical matter, would be entitled to reimbursement from Roberson for the amount that Travelers is obligated to pay plaintiff as excess coverage for Savarino's liability to Roberson's employee (see generally United States Fid. & Guar. Co. v CNA Ins. Cos., 208 AD2d 1163, 1165).

Cain v. New York Central Mutual Fire Insurance Company


Appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), entered August 23, 2006. The order, insofar as appealed from, denied in part defendant's motion for a protective order and granted in part plaintiffs' cross motion.


BROWN & KELLY, LLP, BUFFALO (RENATA KOWALCZUK OF COUNSEL), FOR DEFENDANT-APPELLANT.
WEBSTER SZANYI LLP, BUFFALO (MARK C. DAVIS OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied in part defendant's motion for a protective order and granted in part plaintiffs' cross motion, directing the deposition of defendant's representative and directing defendant to turn over its file on plaintiffs "up until the date . . . that [defendant] sent out the disclaimer" of coverage. The court is vested with broad discretion to supervise discovery and to determine what disclosure is material and necessary (see Gibson v Encompass Ins. Co., 23 AD3d 1047; NBT Bancorp v Fleet-Norstar Fin. Group, 192 AD2d 1032, 1033; see generally CPLR 3101 [a]). Here, we note in particular that defendant failed to meet its burden of establishing the applicability of various exemptions from disclosure to the documents sought by plaintiffs (see Doe v Poe, 244 AD2d 450, 451-452, affd 92 NY2d 864).

Chautauqua Patrons Ins. Assoc. v. Ross


Appeal from a judgment (denominated order) of the Supreme Court, Allegany County (Thomas P. Brown, A.J.), entered December 15, 2004 in a declaratory judgment action. The judgment declared that plaintiff is required to defend and indemnify defendant Terri L. Ross, public administrator of the estate of Ross Miller, deceased, with respect to claims asserted by and on behalf of defendant Jeremy Mellin.


LAW OFFICE OF ROY A. MURA, BUFFALO (JAMES M. DE VOY OF COUNSEL), FOR PLAINTIFF-APPELLANT.
JEFFREY FREEDMAN, ATTORNEYS AT LAW, BUFFALO (EDWARD J. MURPHY, III, OF COUNSEL), AND MARK S. WILLIAMS, OLEAN, FOR DEFENDANTS-RESPONDENTS.


It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking, inter alia, a declaration that it is not obligated to defend or indemnify Ross Miller, who is now deceased, with respect to claims that have been or may be asserted by or on behalf of defendant Jeremy Mellin. The parties agreed that Supreme Court would resolve the issue as a matter of law, and the court subsequently declared that plaintiff is required to defend and indemnify Ross Miller with respect to claims asserted by and on behalf of Mellin. We affirm, but our reasoning differs from that of the court.

Mellin, then age 16, was seriously injured while operating a corn chopper at a dairy farm owned by Miller. Plaintiff disclaimed coverage on the ground that the contract of liability insurance covering the farm and the residence on the farm excluded coverage for bodily injury to "any . . . person under the age of twenty-one in [the] care [of an insured] or in the care of [an insured's] resident relatives . . . ." At the time of the accident, Mellin's mother, defendant Donna Pierce, was the domestic partner of Miller and resided with her children at Miller's home, but Miller is not Mellin's biological father. Mellin established that he occasionally helped out on the farm but that he was not subject to Miller's discipline. He further established that Miller did not have an active role in his life and that Miller rarely assumed responsibility for him. Miller did not claim Mellin's mother or Mellin as a dependent, and he requested that Mellin and his mother move out of the residence almost immediately after Mellin was released from the hospital following the accident.

It is well established that, "whenever an insurer wishes to exclude certain coverage from its policy obligations, it must do so in clear and unmistakable' language," and such exclusions are to be narrowly construed (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311). "Indeed, before an insurance company is permitted to avoid policy coverage, it must satisfy the burden which it bears of establishing that the exclusions or exemptions apply in the particular case . . ., and that they are subject to no other reasonable interpretation" (id.). Here, the court erred in determining that the exclusionary language was ambiguous (see Qiu v Livingston Mut. Ins. Co., 305 AD2d 1104, 1105; Utica Fire Ins. Co. of Oneida County v Gozdziak, 198 AD2d 775, appeal dismissed 84 NY2d 821, mot to vacate order of dismissal denied 84 NY2d 848, rearg denied 84 NY2d 978). Nevertheless, we conclude that Mellin was not "in the care of" Miller within the meaning of the policy and thus that the court properly declared that plaintiff was required to defend and indemnify Miller (see New York Cent. Mut. Fire Ins. Co. v Sweet, 16 AD3d 1013, 1014-1015, lv denied 5 NY3d 704).

Legawiec v. North American Company for Life and Health Ins. Of New York


Appeal from an order of the Supreme Court, Onondaga County (Thomas J. Murphy, J.), entered March 1, 2006. The order granted defendant's motion for summary judgment dismissing the amended complaint and denied plaintiff's cross motion for summary judgment.


GREEN & SEIFTER, ATTORNEYS, PLLC, SYRACUSE (HARRISON V. WILLIAMS, JR., OF COUNSEL), FOR PLAINTIFF-APPELLANT.
CHITTENDEN, MURDAY & NOVOTNY LLC, CHICAGO, ILLINOIS (DAVID F. SCHMIDT, OF THE ILLINOIS BAR, ADMITTED PRO HAC VICE, OF COUNSEL), AND GOLDBERG SEGALLA LLP, BUFFALO, FOR DEFENDANT-RESPONDENT.


It is hereby ORDERED that the order so appealed from be and the same hereby is modified on the law by denying the motion and reinstating the amended complaint and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking to collect the proceeds of a life insurance policy issued to her husband (decedent) by defendant. The policy was issued effective August 2, 2001, and was in effect on March 22, 2003 when decedent died from non-Hodgkins lymphoma. Supreme Court erred in granting defendant's motion for summary judgment dismissing the amended complaint, and we therefore modify the order accordingly. In support of its motion, defendant asserted that decedent materially misrepresented the state of his health on the application for the life insurance policy by failing to disclose that his physician treated him for an enlarged lymph node in his neck and that the policy therefore was void from its inception (see generally Taradena v Nationwide Mut. Ins. Co., 239 AD2d 876, 877). Contrary to the court's determination, defendant failed to meet its burden of establishing as a matter of law that decedent misrepresented a material fact on the application for the life insurance policy (see generally Zuckerman v City of New York, 49 NY2d 557, 562). The evidence submitted by defendant in support of its motion established that decedent was not advised prior to the issuance of the policy that the enlarged lymph node was possibly malignant or that it was a serious medical condition. Indeed, according to the deposition testimony of decedent's physician submitted by defendant in support of its motion, decedent's physician believed that the condition was not malignant (see Fratello v Savings Banks Life Ins. Fund, 186 AD2d 1061).

In any event, even assuming, arguendo, that the failure to disclose the condition constituted a misrepresentation, we conclude that defendant failed to establish as a matter of law that the misrepresentation was material. "In order to prove that a misrepresentation is material as a matter of law, an insurer must submit evidence concerning its underwriting practices with respect to applicants with similar histories, establishing that it would have denied the application had it contained accurate information" (Iacovangelo v Allstate Life Ins. Co. of N.Y., 300 AD2d 1132, 1133; see Insurance Law § 3105). Here, defendant failed to submit such evidence. The affidavit of defendant's underwriting representative merely states that defendant would have "postponed" issuing the policy and awaited further tests had defendant known about decedent's treatments, but the underwriting representative does not state that defendant would have denied the application (see Iacovangelo, 300 AD2d at 1133; Campese v National Grange Mut. Ins. Co., 259 AD2d 957, 958).

All concur except Scudder, P.J., and Centra, J., who dissent in part and vote to affirm in the following Memorandum: We respectfully dissent in part and would affirm the order of Supreme Court that, inter alia, granted the motion of defendant for summary judgment dismissing the amended complaint. In our view, defendant met its burden of establishing as a matter of law that decedent misrepresented a material fact on his application for his life insurance policy (see generally Zuckerman v City of New York, 49 NY2d 557, 562). "An insured cannot remain silent while cognizant that his insurance application contains misleading or incorrect information" (North Atl. Life Ins. Co. of Am. v Katz, 163 AD2d 283, 284). Where an applicant for a life insurance policy knows of a possible health problem prior to the issuance of the policy, he is under an obligation to inform the insurance company of that information (see Schmitt v North Am. Co. for Life & Health Ins. of N.Y., 30 AD3d 1007, 1009, lv denied 7 NY3d 712; Meagher v Executive Life Ins. Co. of N.Y., 200 AD2d 720, 721; North Atl. Life Ins. Co. of Am., 163 AD2d at 284-285; Angione v Rochester Sav. Bank, 41 AD2d 597). Here, at the time the policy was issued to decedent on August 2, 2001, decedent had not informed defendant that he had attended five appointments with two physicians regarding his enlarged lymph nodes, that he underwent a needle biopsy, and that he was scheduled to have an excisional biopsy. Defendant submitted the affidavit of its underwriting representative who averred that, if defendant had known about the medical tests administered to decedent, defendant would have postponed issuing the policy until such time as the test results had been received and decedent's condition had been fully evaluated and definitively diagnosed. The underwriting representative further averred that, because the tests ultimately resulted in a diagnosis of lymphoma, defendant would have rejected the application and would not have issued the policy.

White v.  Continental Casualty Company


Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered December 27, 2005 in a breach of contract action. The order, insofar as appealed from, granted the motion of defendant Life Insurance Company of Boston & New York for summary judgment dismissing the complaint against it and denied that part of plaintiff's motion for summary judgment against that defendant.


KNOER, CRAWFORD & BENDER, LLP, BUFFALO (JOANNEKE K. BRENTJENS OF COUNSEL), FOR PLAINTIFF-APPELLANT.
RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA, LLC, BUFFALO (JAMES M. APPLER, III, OF COUNSEL), FOR DEFENDANT-RESPONDENT.


It is hereby ORDERED that the order so appealed from be and the same hereby is affirmed without costs.

Memorandum: Plaintiff, a physician formerly specializing in orthopedic spinal surgery, commenced this action to recover benefits for a claimed total disability under a disability income policy issued by Life Insurance Company of Boston & New York (defendant). Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint against it and denied plaintiff's motion for summary judgment. The policy provides that the insured is totally disabled if he is "unable to perform the substantial and material duties of [his] Occupation" (in the case of plaintiff, his former medical specialty of orthopedic spinal surgery) as a result of injury or sickness, and if he is "not performing the duties of any gainful occupation for which [he is] reasonably fitted by education, training, or experience . . . ." We reject plaintiff's contention that the pertinent provisions of the policy are ambiguous (see Michelson v Massachusetts Cas. Ins. Co., 102 AD2d 1003, 1004; see also Beck v Massachusetts Cas. Ins. Co., 1988 WL 33916, *2 [ED Pa, Mar. 31, 1988], affd 862 F2d 306 [3d Cir]; see generally Scheuerman v St. Luke's-Roosevelt Hosp. Ctr., 239 AD2d 333, 334) and that they render the disability coverage "illusory." Further, although we conclude as a matter of law that plaintiff is, as a result of injury or sickness, unable to perform the substantial and material duties of his former occupation as a surgeon, we nonetheless conclude as a matter of law that plaintiff remains actually engaged in a "gainful occupation for which [he is] reasonably fitted by [his] education, training, or experience . . . ." The record establishes that plaintiff has maintained his medical practice, in which he renders second opinions with regard to surgery, performs independent medical examinations, and provides expert medical testimony, all in connection with spinal injuries. Further, plaintiff testified at his deposition that, in carrying out such duties, he utilizes his education, training, and experience as an orthopedic surgeon.

All concur except Gorski, J.P., and Green, J., who dissent in part and vote to modify in accordance with the following Memorandum: We respectfully dissent in part. "[I]t is generally a question for the jury to determine whether a policyholder is totally disabled within the meaning of the policy provision" (Godesky v First Unum Life Ins. Co., 239 AD2d 547, 548, citing McGrail v Equitable Life Assur. Socy. of U.S., 292 NY 419, 425, rearg denied 293 NY 663; see Niccoli v Monarch Life Ins. Co., 70 Misc 2d 147, 149-150, affd 45 AD2d 737, affd 36 NY2d 892). We agree with the majority that plaintiff meets the first requirement of the policy definition of "total disability" as a matter of law. Plaintiff, due to injury or sickness, is unable to perform the substantial and material duties of his occupation as an orthopedic surgeon specializing in spinal surgery. We do not agree with the majority, however, that plaintiff fails as a matter of law to meet the second requirement of the policy definition, i.e., that he is "not performing the duties of any gainful occupation for which [he is] reasonably fitted by education, training, or experience . . . ." Rather, the evidence with respect to the nature and extent of plaintiff's activities raises a triable issue of fact whether plaintiff is totally disabled within the meaning of the second requirement of the policy definition of "total disability" (see Estate of Jervis v Teachers Ins. & Annuity Assn., 306 AD2d 123, 124; Scheuerman v St. Luke's-Roosevelt Hosp. Ctr., 239 AD2d 333, 334; Greenbaum v Prudential Ins. Co. of Am., 74 AD2d 757, lv dismissed 51 NY2d 703, 745; see generally Niccoli, 70 Misc 2d at 149-150). We therefore would modify the order by denying the motion of defendant Life Insurance Company of Boston & New York and reinstating the complaint against it.

 

Morales v. Solomon Management Co., LLC


Zalman & Schnurman, New York (Norman E. Frowley of
counsel), for appellants.
The Sarcone Law Firm, PLLC, White Plains (John A. Sarcone
III, of counsel), for respondents.

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered March 29, 2006, which denied plaintiffs' motion to restore this action to the trial calendar, unanimously reversed, on the law and the facts, without costs, the motion granted and the action restored. Appeal from order, same court and Justice, entered September 8, 2006, which granted plaintiffs' motion for reargument and/or renewal and, on reargument, adhered to the March 2006 determination, unanimously dismissed as academic, without costs, in view of the foregoing.

On May 16, 1997, plaintiff Carmen Morales was allegedly injured when part of the ceiling of her apartment collapsed on her. On March 9, 1998, she slipped and fell on a puddle in her apartment building, exacerbating the injuries she had sustained in 1997.

Mrs. Morales and her husband brought two lawsuits against their landlord: one for the 1997 incident and another for the 1998 incident. In 1999, defendants deposed both plaintiffs, and plaintiffs deposed one of the defendants and the superintendent of the subject building.

On November 9, 2001, the 1997 action was marked off the calendar. On November 7, 2002, defense counsel informed plaintiffs' counsel that the action had been stayed because defendants were insured by Legion Insurance Company, which was in rehabilitation. The stay continued in place through May 2004 for the 1998 case and August 2005 for the 1997 case. While the stay was in effect, plaintiffs' counsel responded to defense counsel's request for authorizations.

In January 2005, the 1998 case proceeded to trial. On March 10, 2005, plaintiffs signed a document stating:

"in consideration that my claim in the Villanova Insurance Company [FN1] Rehabilitation, Liquidation, or Ancillary proceeding . . . based upon my claim

against UZI Einy d/b/a Solomon Management D/A 3/9/98,

a policyholder of said company, be allowed in said proceeding the sum of EIGHTY FIVE THOUSAND

DOLLARS . . . [I] release and forever discharge the Superintendent of Insurance of the [*2]State of New York,

. . . the estate of Villanova Insurance Company and

the above named insured or policyholder, from any

and all rights, causes of action, claim or demand of whatsoever kind, nature or description at law or in

equity or created by statute which it [sic] now

has . . . ."

In September 2005, plaintiffs learned that the stay of the 1997 action had been lifted. On September 22, 2005, they asked defendants to stipulate to the restoration of the case. After defendants refused, plaintiffs moved on November 23, 2005 to restore the 1997 action to the trial calendar. The IAS court denied plaintiffs' motion, finding that the March 2005 document released plaintiffs' claims in both the 1997 and 1998 actions. We reverse.

It has long been the law that "where a release contains a recital of a particular claim, obligation or controversy and there is nothing on the face of the instrument other than general words of release to show that anything more than the matters particularly specified was intended to be discharged, the general words of release are deemed to be limited thereby" (Mitchell v Mitchell, 170 App Div 452, 456 [1915]; see also Haskell v Miller, 221 App Div 48 [1927], affd 246 NY 618 [1927]). The vitality of that principle has not faded in the ensuing decades (see Lexington Ins. Co. v Combustion Eng'g, 264 AD2d 319, 321-322 [1999]). The release signed by plaintiffs indicates that it is for the 1998 accident ("D/A 3/9/98").

Furthermore, "a release may not be read to cover matters which the parties did not desire or intend to dispose of" (Cahill v Regan, 5 NY2d 292, 299 [1959]; see also Lexington, 264 AD2d at 322). Clearly, the plaintiffs did not intend the release to cover the 1997 incident. Defendants presented no evidence that the Superintendent of Insurance (the other party to the release) intended the document to cover the earlier incident.

Of course, since plaintiffs have already been compensated for their injuries from March 9, 1998 onward, they may only recover damages for the period between May 16, 1997 and March 8, 1998.

Contrary to defendants' claim, plaintiffs have satisfied the requirements for a motion to restore an action to the trial calendar. The affidavit submitted by Mrs. Morales indicates "the nature of the condition complained of, the negligence attributable to defendants, how the accident happened and the relationship of the parties" (Gutierrez v Williams, 60 AD2d 827, 827 [1978]). Defendants' argument that the passage of time may impair their ability to defend the action is unavailing (see e.g. Nunez v Resources Warehousing & Consolidation, 6 AD3d 325, 327 [2004]).

The stay that lasted from November 7, 2002 until August 17, 2005 is a reasonable excuse for the delay. It is true that plaintiffs' counsel does not explain what he was doing between November 9, 2001 and November 7, 2002. However, "[e]ven if the entire period of counsel's delay was not excusable, [a] client should not be deprived of his day in court by his attorney's neglect or inadvertent error, especially where the other party cannot show prejudice . . . [and] the complaint has merit" (Nicholos v Cashelard Rest., Inc., 249 AD2d 187, 190 [1998] [internal quotation marks and citations omitted]).

Finally, plaintiffs showed that they did not intend to abandon the 1997 action (see Sanchez v Javind Apt. Corp., 246 AD2d 353, 356 [1998]; Rosado v New York City Hous. Auth., [*3]183 AD2d 640, 642 [1992]). They kept checking to see if the stay was still in effect; once they discovered that it had been lifted, they tried to get defendants to stipulate to restore the action to the trial calendar. When that was unsuccessful, they moved to restore it. Even during the stay, plaintiffs responded to defendants' request for authorizations.

Cruz v. Taino Construction Corp.



R. Kenneth Jewell, New York, for appellants-respondents.
Mirman, Markovits & Landau, P.C., New York (Scott
Wunderlich of counsel), for respondents.
Gold, Stewart, Kravatz, Benes & Stone, LLP, Westbury
(Jeffrey B. Gold of counsel), for respondent-appellant.

Order, Supreme Court, Bronx County (Sallie Manzanet, J.),  entered on or about December 2, 2005, which granted the motion by third-party defendant Hermitage Insurance Company (Hermitage) for severance of the third-party action and denied its motion for a change of venue in the same action, unanimously modified, on the law, the motion granted to the extent of directing that the venue of the severed third-party action be transferred to Suffolk County, and otherwise affirmed, without costs.

The motion court properly severed the main and third-party actions, since those actions do not involve common questions of law or fact. The issue in the third-party action is whether Hermitage received contractually timely notice of the claim, while the main action involves questions of negligence (see Dreizen v Morris I. Stoler, Inc., 98 AD2d 759 [1983]). Further, "[i]t is generally recognized that even where common facts exist, it is prejudicial to insurers to have the issue of insurance coverage tried before the jury that considers the underlying liability claims" (Medick v Millers Livestock Mkt., 248 AD2d 864, 865 [1998] [internal quotation marks and citation omitted]; Kelly v Yannotti, 4 NY2d 603, 607 [1958]).

Hermitage's motion should have been granted to the further extent of changing the venue of the severed third-party action to Suffolk County. The venue change was timely sought by Hermitage based on improper designation of venue. Inasmuch as neither Hermitage nor its insured, the third-party plaintiff, had its principal place of business in the Bronx, venue was not properly placed in Bronx County (see Kearns v Johnson, 238 AD2d 121 [1997]), and should have been transferred in accordance with Hermitage's request to Suffolk County, where Hermitage has it principal place of business. We note in this connection that the insured never cross-moved to retain venue in Bronx County or to transfer venue to an alternative county (see e.g. Herrera v A. Pegasus Limousine Corp., 34 AD3d 267 [2006]; Montilla v River Park Assoc., 282 AD2d 389 [2001]).

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