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Dear Coverage Pointers Subscribers:

 

Happy Passover and Happy Easter to all from the land that refuses to welcome springtime.  I was prepared to go to the opening game of the season for the AAA Buffalo Bisons (the Indians farm team) until the game was called on account of snow.  Never a good sign.

 

Some very interesting cases in this week's issue of Coverage Pointers

 

One of the very contentious areas of coverage litigation involves the breadth and scope of "additional insured" clauses, primarily in construction contract cases.  You'll find a First Department case decided yesterday holding that the discontinuance of the action against the named insured doesn't necessarily mean that the additional insured cannot look to the AI's carrier for coverage.  You'll also find a case that correctly holds that a contract that requires insurance be provided is not the same as an agreement to indemnify.

 

On the auto side, you will find further erosion of the no prejudice rule in the SUM (underinsured motorists) venue out of the Second Department.  In this case, the insured failed to return the SUM claim forms to the carrier, clearly in breach of the insurance contract.  The court refused to grant the carrier's application for judgment without proof of prejudice, clearly another major step away from well-established legal precedent.  You'll also find a reminder that a lliability insurer cannot seek contribution in inter-company arbitration after it settles a case, because of the provisions of the New York General Obligations law that prohibits a party who settles a case from thereafter suing another for contribution.

 

From Audrey Seeley, residing in the Queendom of No Fault, I bring you these words of wisdom, and suggestions for training opportunities:

 

With the change of season also comes a change in thinking.  As many of you are aware many insurers are not successful in opposing summary judgment motions downstate due to the bare bones prima facie standard imposed on plaintiffs.  However, we are noticing in the Appellate Term many insurers are having success in attacking the plaintiff's affidavit on mailing practice and procedure.  We counted 11 recent decisions in the past two weeks where the Appellate Term held that plaintiff's affidavit was conclusory and insufficient to establish a prima facie case.  While we did not list every single decision as the holding was essentially identical for all please feel free to send me an email ([email protected]) if you would like a copy of any one or all of them.

  Also, let us know if we can provide you with any training on no-fault issues.  We will tailor our training to you but have provided training on topics such as: 

·        Drafting an effective denial

·        Ensuring that a peer review and/or IME report is sufficient

·        The basics of no-fault - complying with the regulatory time frames

·        Surviving summary judgment and ensuring you meet your burden

·        Preparing persuasive arbitration submissions 

Anyway, enjoy the holiday; send us some warm weather and happy reading.  This week's issues includes summaries and full text of NY appellate decisions rendered between March 24 and April 5, including: 

·        Discontinuance of Claim Against Subcontractor Doesn't Necessarily Mean that the Accident Arises out of Someone Else's Operations

·        Contract Requiring Subcontractor to Comply with General Contractor's Insurance Requirements is Not a Contractual Obligation to Indemnify as Well

·        No Liability Coverage Available for Claims Arising out of Property Not an Insured Location

·        It's Relatively Simple, Question of Care is Question of Fact

·        Insurance Claims Adjustment Company Can be Liable for Misrepresentations to Insured in Certain Circumstances if the Relationship Between Insured and Adjuster is Close

·        Further Erosion of the No-Prejudice Rule in SUM Cases.  Where Insurer had Notice of Accident, Medical Authorizations and was Handling No-Fault Claim, Failure to Return Proof of Claim Forms for SUM Claim Does Not Result in Loss of Coverage Where No Prejudice Shown to Carrier.

·        However, No Prejudice Rule Alive and Well Under Liability Policy Where Insured Did Not Give Notice of the Accident

·        Liability Insurer Cannot Seek Contribution in Inter-company Arbitration (or in Court, for that matter) for "Contribution" After it Settles Case because of Provisions of New York General Obligations Law

·        Where Insured Acknowledges Policy Terms, Action against Broker for Not Purchasing Proper Insurance Dismissed
 

 

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

[email protected]

 

·        Second Department Affirms Order Denying Defendants' Summary Judgment Motion

·        Double Whammy: Court Denies Defendant's Motions on Two Fronts

·        Failure to Mind Gap Sinks Plaintiff's Summary Judgment Survival Hopes

·        Order Affirmed Granting Defendant's Summary Judgment Motion

·        'Sufficient Medical Evidence' Helps Plaintiff Survive Summary Judgment

·        Plaintiff's Doctors Have to Review Films of Plaintiff to Help Raise a Triable Issue of Fact

·        Defendants Must Address Plaintiff's Claims for Chance of Summary Judgment Success 

·        Continuing Recent Trend: Second Department Reverses Order in Favor of Plaintiff

·        Court Reverses as Defendant's Doctor Needs to Compare Plaintiff's Limitation to What is Deemed Normal

·        Remit and Remand: Appellate Division Reverses Order, Returns Case to Trial Court

·        Court Confirms Non-Conclusory Medical Affidavits Enough to Establish Prima Facie Case

·        Despite Defendants' Establishing Prima Facie Case, Order is Reversed in Plaintiff's Favor

·        Lower Court's Order Affirmed that Denied Defendants Summary Judgment Motion

·        Court to D's Docs: Need Comparative Quantification for Summary Judgment Success

·        Reversed: Court Continues Message to Defense Bar About Summary Judgment

 

 

Audrey's Angle on No-Fault

Audrey Seeley

[email protected]  

 

Arbitration

 

·        IME Report Failed to Sufficiently Support the Conclusion

·        Administrative Assistant's Affidavit Insufficient on Issue that EUO Notice Mailed as No Statement that Letters were Mailed and What Was the Insurer's Mailing Practice and Procedure

·        Insurer Successfully Establishes It Mailed a Timely Verification Request, Follow-Up Verification Request, and Denial of Claim
 

 

Litigation

 

·        Administrative Assistant's Affidavit Insufficient on Issue that EUO Notice Mailed as No Statement that Letters were Mailed and What Was the Insurer's Mailing Practice and Procedure.

·        Insurer Successfully Establishes It Mailed a Timely Verification Request, Follow-Up Verification Request, and Denial of Claim!

·        Insurer's Submission of Hospital Records Sufficient to Raise Issue of Fact Regarding Causal Relationship Between Accident and Treatment.

 

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

 

4/5/07              The City of New York v. Zurich American Insurance Company
Appellate Division, First Department
Discontinuance of Claim Against Subcontractor Doesn’t Necessarily Mean that the Accident Arises out of Someone Else’s Operations

Underlying personal injury plaintiff discontinues claim against subcontractor.  Subcontractor’s carrier had been providing a defense to City of New York and now takes the position that discontinuance of the claim against the sub precludes a finding that the plaintiff’s injuries arise out of the sub-contractor’s work.  The court disagrees, holding that that the stipulation precludes any further claim by the underlying plaintiffs against the insured contractor, it does not by its terms preclude a claim that City failed to properly inspect or supervise the work of the insured contractor. Nor does the stipulation or any other documentation submitted by defendant establish as a conceded or uncontested fact that the accident was unrelated to the contractor's work.

4/5/07              Goncalves v. 515 Park Avenue Condominium
Appellate Division, First Department
Contract Requiring Subcontractor to Comply with General Contractor’s Insurance Requirements is Not a Contractual Obligation to Indemnify as Well
Purchase order between Hird and it’s sub-contractor, Woodworks (plaintiff’s employer) requires Woodworks to "receive, distribute and install all work" in accordance with the terms of the attached "trade subcontract" between Hird and the general contractor. Court holds that that this language does not incorporate the provisions of the trade subcontract relating to indemnification. Nor is such incorporation accomplished by the portion of the "scope of work" clause of the trade subcontract requiring second-tier subcontractors like Woodworks to "maintain insurance equal to that required by this [sub]contract and be bound by the same terms and conditions as those of th[is] subcontract."

 

 

4/5/07              State of New York v. Dennin
Appellate Division, Third Department
No Liability Coverage Available for Claims Arising out of Property Not an Insured Location
Dennin, in a previous proceeding, was found to have had sufficient control over a parcel of land, on which a convenient store was located, to be responsible for clean-up costs for a petroleum spill.  He now sues Michigan Millers Mutual (Michigan) seeking coverage for any judgment for clean-up costs in the action by the State.  Michigan issued a homeowners and umbrella policies.  It denied coverage based on (1) the convenience store/gas station was not an insured premises under either policy, (2) the policies neither afforded coverage for business pursuits nor for premises rented to others, (3) the policies excluded liability for damages caused by pollutants and (4) defendant failed to give Michigan timely notice of the discharge and failed to timely turn over the papers in the lawsuit.

The court concludes that the defendant was the owner of the property and it was not listed as an insured location (the policy listed his home and this was a separate parcel for which coverage was not sought and a premium not paid.  Since the umbrella policy only provided excess coverage over the primary policy, coverage was not triggered (and that policy expressly excluded property upon which business was being conducted).  No need to reach other issues.

4/3/07              Korson v. Preferred Mutual Insurance Company
Appellate Division, Second Department

It's Relatively Simple, Question of Care is Question of Fact.
Lead paint case.  Homeowner’s policy issued to plaintiff and his brother Dean.  Dean owned a residential building.  Plaintiff and Dean sued for bodily injury allegedly suffered by Aaliyah Powers who lived with Dean.  Now you try to follow this:  Aaliyah's mother, Crystal Wise, who commenced the action on behalf of her daughter, is the daughter of Dean's wife, Brenda. Crystal is not Dean's daughter. Aaliyah is Dean's step-granddaughter and the plaintiff's step-grandniece.

The policy excludes from coverage "bodily injury to you, and if residents of your household, your relatives, and persons under the age of 21 in your care or in the care of your resident relative." Relying upon this exclusion, the defendant declined coverage.

The exclusion extends, by its terms, to persons under the age of 21 in the care of a resident relative. It is undisputed that Aaliyah was under the age of 21 and that the plaintiff's brother, Dean, is a relative of the plaintiff. Thus, in order to prevail on his motion for summary judgment, the plaintiff was required to establish either that Aaliyah was not in Dean's care, i.e., that Dean had not assumed any responsibility for her.  That is a question of fact for which the carrier is entitled discovery.

 

3/29/07            Ryan v. Preferred Mut. Ins. Co.
Appellate Division, Third Department
Insurance Claims Adjustment Company Can be Liable for Misrepresentations to Insured in Certain Circumstances if the Relationship Between Insured and Adjuster is Close
In January 2004, Ryan, the insured, contacts insurance broker Fagan to secure a homeowners policy.  Fagan obtains policy from Preferred, covering period 2/2/04 – 2/2/05.  In April 2004, the heating system at the home malfunctions resulting in substantial property damage.  Ryan notifies Fagan and Fagan notifies Preferred.

Preferred sent both an engineer and claim adjuster (Talmon) to the house and adjuster tell insured that all will be covered and encourages plaintiff to replace heating system with similar expensive radiant system. After the heating system had been replaced and the necessary repairs completed, the insurer informed plaintiffs that the damages sought were subject to a policy exclusion and, therefore, they would not be reimbursed for the costs and expenses they incurred. Fagan, the broker, Talmon, the adjuster and Preferred are sued.

With respect to claim against adjuster, generally agent for disclosed principal who is working on behalf of the principal cannot be personally liable to plaintiff. However,  recovery may be had for a "pecuniary loss sustained as a result of another's negligent misrepresentations [if] . . . there was either actual privity of contract between the parties or a relationship so close as to approach that of privity."

Plaintiffs have established the existence of a relationship with Talmon approaching that of privity. Plaintiffs claim that they relied upon Talmon’s expertise in replacing heating system with an equally expensive model and representing that the costs associated therewith would be fully covered by the insured and, finally, in proceeding with such replacement and the corresponding repairs prior to the submission of a formal claim to the insured.

 

3/27/07            In the Matter of New York Central Mut. Fire Ins. Company v. Ward
Appellate Division, Second Department
Further Erosion of the No-Prejudice Rule in SUM Cases.  Where Insurer had Notice of Accident, Medical Authorizations and was Handling No-Fault Claim, Failure to Return Proof of Claim Forms for SUM Claim Does Not Result in Loss of Coverage Where No Prejudice Shown to Carrier.

Read this one carefully.  This was an application to stay a demand for arbitration of underinsured motorist’s b benefits.  The insured supplied a prompt notice of the accident, a prompt application for no fault benefits, a sworn police report and authorizations to secure medical records.  Apparently, however, the insured did not provide the proof of claim form in a timely manner and the carrier denied coverage for breach of the policy provision.  There was no prejudiced demonstrated.

The court recognized that for many years, the court has held that a failure to complete and return proof of claim forms, without excuse, constitutes a breach of contract which results in a loss of coverage, even without prejudice to the carrier.   The court notes that there has been a shift away from the “no-prejudice” rule in the SUM arena.  In Matter of Brandon Nationwide Mut. Ins. Co., (97 NY2d 491), the court required a Supplementary Uninsured/ Underinsured Motorists (hereinafter SUM) insurer to demonstrate prejudice when seeking to disclaim coverage based upon untimely notice of legal action.. In Rekemeyer v State Farm Mut. Auto. Ins. Co. (4 NY3d 468, 474-476), the court required a showing of prejudice when the carrier had timely notice of the accident and had a made a claim for no-fault benefits but didn’t advise of a potential SUM claim.

Here, the court extended the “no-prejudice” rule just a little further, to the failure to timely file claim forms (where the insurer had notice of the accident, had medical authorizations and a pending claim for no-fault benefits).

3/27/07            Natural Stone Industries, Inc., Utica National Assurance Company
Appellate Division, Second Department
However, No Prejudice Rule Alive and Well Under Liability Policy Where Insured Did Not Give Notice of the Accident
Utica established it did not receive timely notice of the accident and promptly denied coverage.  The insured failed to demonstrate a reasonable excuse for not notifying the carrier for six months after the accident.  The insured argued that it believed that it could not be liable for the injuries but apparently this was a Labor Law Section 240 claim and the court simply didn’t buy the argument.  Court also rejected the excuse that the insured had an “indication” that it would be sued.

3/27/07            State Farm Ins. Co. v. Pennsylvania Manufacturers' Assoc. Ins. Co. Appellate Division, First Department
Liability Insurer Cannot Seek Contribution in Intercompany Arbitration (or in Court, for that matter) for “Contribution” After it Settles Case because of Provisions of New York General Obligations Law.
The underlying personal injury action involved an automobile accident in which the plaintiffs were passengers in a vehicle owned and operated by State Farm insured, which collided with a truck that was owned and operated by the Pennsylvania Manufacturers (Pennsylvania) insureds. The plaintiffs sued the Pennsylvania insureds and a third-party action was later commenced against the State Farm insured. After a jury had been selected Pennsylvania, without the consent of State Farm, settled with the plaintiffs for a total of $100,000 and announced on the record that the action and third-party action were discontinued. The plaintiffs executed releases listing all relevant parties, including both State Farm and Pennsylvania. Pennsylvania  then commenced an intercompany arbitration proceeding seeking contribution from State Farm, which resulted in the award of $25,000.

The intercompany arbitration award was properly dismissed as irrational.  As Pennsylvania settled the case on behalf of its insured, it is precluded, under Section 15-108 of the General Obligations Law (as is its insured) from seeking contribution to the settlement.  There was nothing to arbitrate.

Editors Note:  That section of the General Obligations Law encourages defendants to settle.  When a defendant settles, that defendant can no longer be held liable for contribution to a settlement (although it can be held liable for contractual indemnification).  In addition, that settling defendant loses its right to seek contribution from another party responsible (except for contractual claims).

3/27/07            North American Van Lines, Inc. v, American International Companies Appellate Division, First Department
Where Insured Acknowledges Policy Terms, Action against Broker for Not Purchasing Proper Insurance Dismissed
In one action, plaintiffs allege that broker Aon did not procure the promised insurance, which, as reflected in the binder, covered legal expenses and pre- and post-judgment interest in addition to a per occurrence retention of $5 million, and that insurer AIG issued only a draft policy that plaintiffs did not accept, thereby entitling plaintiffs to sue on the binder. This action was correctly dismissed on the ground that the binder was superseded by the policy.  The existence of and terms in the policy was acknowledged by the insured.  A second action, seeking to recover on theories of fraud and misrepresentation (sued after first action was dismissed) was properly dismissed as well on the grounds that the first action disposed of the issues.



 

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

 

04/03/07          Litz v. F.J. Gray & Co.

Appellate Division, Second Department

Second Department Affirms Order Denying Defendants’ Summary Judgment Motion

In an action to recover damages for personal injuries, the defendants appeal from an order of the which 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).

Contrary to the defendants’ assertions, they 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. The affirmed medical report of the defendants’ examining neurologist conceded the existence of limitations of motion of the plaintiff's cervical and lumbar spine and stated symptoms are causally related to the incident by history.

 

04/03/07          Ochs v. Vaul Trust

Appellate Division, Second Department

Double Whammy: Court Denies Defendant’s Motions on Two Fronts
In an action to recover damages for personal injuries, the defendants an order that denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that Dinusha P. Ratnayake did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and denied their cross motion for leave to amend their answer to assert the affirmative defense of lack of capacity to sue and to cap the amount of the plaintiff's damages at $7,500.  That order was affirmed by the Second Department.

By submitting the affirmed reports of their orthopedic surgeon and radiologist, the defendants established, prima facie, that the injuries sustained by Dinusha P. Ratnayake were not serious. However, the affidavit prepared by Ratnayake’s treating chiropractor raised a triable issue of fact as to whether he sustained a “significant limitation of use of a body function or system” as a result of the accident. Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them.

The Supreme Court also properly denied the defendants' separate cross motion for leave to amend their answer to assert the affirmative defense of lack of capacity to sue and to cap the amount of the plaintiff's damages at $7,500. This personal injury action was commenced before the filing of Ratnayake's bankruptcy petition, and thus, is considered property of the debtor under the U.S. Bankruptcy Code (see 11 USC § 541[a][1]). The bankruptcy trustee properly listed Ratnayake's personal injury action as an unliquidated contingent claim on Schedule B of the bankruptcy petition, which had the effect of preserving the claim for administration through the bankruptcy court. The value of Ratnayake's interest in the personal injury claim was listed as the full $7,500 personal exemption permitted under 11 USC § 522(b)(2). The bankruptcy trustee therefore established his capacity to pursue the personal injury action as property of the debtor.

 

04/03/07          Osgood v. Martes

Appellate Division, Second Department

Failure to Mind Gap Sinks Plaintiff’s Summary Judgment Survival Hopes
Reversal the other way as Appellate Division reversed lower court order thereby granting defendants’ motion for summary judgment dismissing the complaint is granted. Here, defendants satisfied their prima facie burden of demonstrating 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 opposition, the plaintiffs failed to raise a triable issue of fact warranting the denial of summary judgment. The affirmed medical reports of the plaintiff’s treating physician failed to compare the range of motion of the plaintiff’s lumbar spine to what is considered the normal range of motion. Moreover, the plaintiff failed to offer an adequate explanation for the almost three-year gap in his treatment.

 

04/03/07          Passaretti v. Ping Kwok Yung

Appellate Division, Second Department

Order Affirmed Granting Defendant’s Summary Judgment Motion
Plaintiff appeals lower court order granted the defendant’s motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury. The defendant 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. The affirmed medical reports of the defendant’s physician established that the plaintiff’s spinal injuries were not causally related to the subject motor vehicle accident, were degenerative and osteoarthritic in nature, and existed prior to the subject accident. The MRI reports prepared by the plaintiff's radiologist upon which the defendant's physician relied provided support for these conclusions. In opposition, the plaintiff's evidence failed to raise a triable issue of fact.

 

 

 

04/03/07          Sookoo v. Paredes

Appellate Division, Second Department

‘Sufficient Medical Evidence’ Helps Plaintiff Survive Summary Judgment
In a brief opinion, the Appellate Division affirmed the lower court’s order denying 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). Here, the defendants made a prima facie showing that the plaintiff did not sustain a serious injury as a result of the subject accident. However, in opposition to the motion, the plaintiff submitted sufficient medical and other evidence to raise triable issues of fact, thereby warranting the denial of the defendants’ motion for summary judgment.

 

04/03/07          Umanzor v. Pineda

Appellate Division, Second Department

Plaintiff’s Doctors Have to Review Films of Plaintiff to Help Raise a Triable Issue of Fact
Here the defendants, who relied on the same evidentiary submissions, satisfied their respective prima facie burdens 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 opposition, the plaintiff failed to raise a triable issue of fact. The affidavit of the plaintiff’s treating chiropractor failed to proffer objective medical evidence that was contemporaneous with the subject accident and did not indicate that he reviewed the actual MRI films from 2002. The affirmation of the plaintiff's examining radiologist merely acknowledged the existence of herniated discs in the plaintiff's cervical spine and failed to address the affirmed medical report of the examining radiologist of the defendants, which noted the existence of a long-standing degenerative disc disease. As is widely known and reported, 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.

 

04/03/07          Williams v. Hassan

Appellate Division, Second Department

Defendants Must Address Plaintiff’s Claims for Chance of Summary Judgment Success 
Here, Appellate Division held: the Supreme Court erred in granting the defendants’ cross motion for summary judgment dismissing the complaint. The defendants failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The defendants’ moving papers did not address the allegations made by the plaintiff, as contained in the plaintiff’s bill of particulars which was submitted in support of the cross motion, that as a result of the accident she sustained an injury which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activity for a period of not less than 90 days during the 180 days immediately following the accident. Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, it is unnecessary to reach the question of whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact.

 

 

 

04/03/07          Cedillo v. Rivera

Appellate Division, Second Department

Continuing Recent Trend: Second Department Reverses Order in Favor of Plaintiff
In a brief opinion, the Appellate Division reversed the lower court’s order granting summary judgment to defendants. Here, the defendants failed to make a prima facie showing 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. The defendants’ examining neurologist, in his affirmed report, merely determined that the plaintiff had full range of motion of the neck but did not set forth what objective testing was done to support that determination, thus rendering it conclusory. As to the lumbar spine, he merely noted that the plaintiff complained of pain with 90 degrees of flexion and failed to compare that finding to normal, again rendering the finding conclusory. As such, Appellate Division did not even have to review plaintiff’s opposing papers as to whether it raises a triable issue of fact.

 

 

03/27/07          Bluth v. WorldOmni Fin. Corp.

Appellate Division, Second Department

Court Reverses as Defendant’s Doctor Needs to Compare Plaintiff’s Limitation to What is Deemed Normal
 Here plaintiff appeals from a lower court order granting defendants’ summary judgment motions. Appellate Division reversed that order insofar as appealed from, on the law, with one bill of costs, and branches of separate motions by defendants are denied.  

 

The Court held the defendants failed to make prima facie showings that the appellant 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 separate motions, they relied upon the affirmed medical report of an examining orthopedic surgeon. In his report, he set forth the results of the plaintiff’s various magnetic resonance imaging reports, including those of the his lumbar spine, which revealed that he had, inter alia, bulging discs at L3 through S1. When setting forth his range of motion findings concerning the plaintiff’s lumbar spine, physician noted “decreased flexion of 70 degrees,” yet did not compare that finding to the normal range of motion. While he indicated that there was a limitation in the range of motion, absent a comparative quantification of that limitation to what is deemed normal, it cannot be concluded that the decreased range of motion is mild, minor, or slight so as to be considered insignificant within the meaning of the no-fault statute.

 

03/27/07          Buchanan v. Celis

Appellate Division, Second Department

Remit and Remand: Appellate Division Reverses Order, Returns Case to Trial Court
Plaintiff brought summary judgment motion on issue of liability. Defendants brought a cross motion for summary judgment on issue of serious injury threshold. Here, plaintiff appealed order granting defendants’ summary judgment motion. Appellate Division held: the defendant failed, on his cross motion, 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. The defendant relied on the affirmed medical report of his examining orthopedist, which noted limitations in the plaintiff’s lumbar spine range of motion that were not adequately quantified or qualified so as to establish the absence of a significant limitation of motion. Since the defendant failed to satisfy his prima facie burden on his cross motion, it is unnecessary to consider whether the papers submitted by the plaintiff in opposition to the defendant’s cross motion raised a triable issue of fact.  Further, “the Supreme Court, having granted the defendants’ cross motion, denied, as academic, the plaintiff’s motion for summary judgment on the issue of the defendant’s liability for the happening of the subject accident. Therefore, we remit the matter to the Supreme Court, to determine the plaintiff’s motion on the merits.”

 

 

03/27/07          Diaz v. Kanuteh

Appellate Division, First Department

Court Confirms Non-Conclusory Medical Affidavits Enough to Establish Prima Facie Case
In a brief opinion, the Appellate Division affirmed the lower court’s order granting summary judgment and dismissing plaintiff’s complaint. The Court held: “each pair of movants established a prima facie case that plaintiff’s injuries were not serious, by non-conclusory affidavits from medical experts who examined plaintiff and found no injury from the accident that satisfied the statutory threshold (Insurance Law § 5102[d]). When the burden then shifted to plaintiff, his medical expert could offer only a conclusory opinion as to causation.”

 

 

03/27/07          Hyun Jun Kim v. Collazo

Appellate Division, Second Department

Despite Defendants’ Establishing Prima Facie Case, Order is Reversed in Plaintiff’s Favor
After it was determined that defendants’ raised a prima facie case, Court held the plaintiff raised a triable issue of fact as to whether he sustained a serious injury within the meaning of the Insurance Law. The plaintiff submitted, inter alia, the affidavit of his treating chiropractor and the affirmation of his examining orthopedist, both specifying the decreased range of motion in his cervical and lumbar regions as evidenced by objective findings, along with evidence of herniated and bulging discs in the cervical and lumbar spine as confirmed by magnetic resonance imaging tests. The plaintiff’s treating chiropractor, as well as his examining orthopedist, also asserted that the plaintiff’s injuries and limitations in his cervical and lumbar spine were permanent, and causally related to the accident. These submissions were sufficient to raise a triable issue of fact as to whether the plaintiff sustained a permanent consequential or significant limitation of use of his cervical and/or lumbar spine as a result of the subject accident.

 

03/27/07          Kaplune v. Septama

Appellate Division, Second Department

Lower Court’s Order Affirmed that Denied Defendants Summary Judgment Motion

In an opinion brief and to the point, the Appellate Division affirmed the lower court’s order.

Here, defendant had appealed from an order 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). Appellate Division held: the defendant met his burden of establishing prima facie that the plaintiff did not sustain a serious injury from the subject accident. In response though, the plaintiff raised a triable issue of fact by presenting medical evidence contemporaneous with the subject accident that she sustained a possible fracture from the subject accident. Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.

 

03/27/07          McLaughlin v. Rizzo

Appellate Division, Second Department

Court to D’s Docs: Need Comparative Quantification for Summary Judgment Success
In a lengthy opinion, the Appellate Division reversed the lower court’s order granting summary

judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

 

The Court held that contrary to the Supreme Court’s determination, 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. The defendants relied upon, inter alia, the affirmed medical report of their examining orthopedic surgeon.  In his affirmed report, the orthopedic surgeon set forth the findings in a prior X-ray report of the plaintiff's cervical spine, as well as the evidence of acromioclavicular osteoarthritis in the plaintiff's right shoulder as set forth in a prior magnetic resonance imaging report. He deemed those findings to be degenerative in nature, pre-existing the subject accident. The orthopedic surgeon also set forth range of motion findings based on his examination of the plaintiff's cervical spine and shoulders. In doing so, he failed to compare any of those numeric findings to what is deemed normal ranges of motion for those regions of the plaintiff's body. While he admitted that the numeric findings concerning the plaintiff's cervical spine amounted to a “mild” limitation and were consistent with the degenerative changes noted in the plaintiff's cervical X-ray report, he made no such claim with respect to the numeric findings concerning the plaintiff's bilateral shoulder range of motion. In fact, he admitted that the plaintiff appeared to suffer from traumatic aggravation of right shoulder acromioclavicular osteoarthritis as a result of the subject accident, which was alleged by the plaintiff in his amended bill of particulars. When reviewed, the numeric findings regarding bilateral shoulder range of motion, as set forth in the orthopedist's report, evinced apparent limitations when compared to one another. Absent a comparative quantification of those findings observed in his report as to what is normal, it cannot be concluded that the range of motion in the plaintiff's right shoulder was normal, or that any limitations were mild, minor, or slight so as to be considered insignificant within the meaning of the no-fault statute.

 

Further, the defendants also relied on the affirmed medical report of another orthopedic surgeon, who examined the plaintiff. In his report, concerning the plaintiff’s cervical spine range of motion, he merely noted that the plaintiff was able to move his neck “in all directions without any deficits.” However, he failed to set forth the objective testing that he performed in order to arrive at this conclusion. This orthopedic surgeon further conceded the existence of limitations in the plaintiff’s right shoulder range of motion, especially in forward flexion and abduction. However, he never compared those findings to what is deemed normal ranges of motion for such tests.

 

03/27/07          Phillips v. Stephen Hacking Corp.

Appellate Division, Second Department

Reversed: Court Continues Message to Defense Bar About Summary Judgment

In an action to recover damages for personal injuries and property damage, the plaintiffs appeal from an order of the Supreme Court, 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), and denied, as academic, their cross motion for summary judgment on the issue of liability. That order was reversed. Here, defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The plaintiffs, however, raised a triable issue of fact as to whether the plaintiff sustained a serious injury. Accordingly, lower court should have denied the defendants’ motion for summary judgment dismissing the complaint. In addition, the Supreme Court should have determined the plaintiffs’ cross motion on the issue of liability both as it relates to the serious injury claim and to the plaintiffs' claim for property damage. The matter was thus remitted to the Supreme Court for a determination of the plaintiffs’ cross motion on the merits.

 

 

 

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

 

 

3/29/07            In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Veronica K. O’Connor, Esq. (Erie County)                   

IME Report Failed to Sufficiently Support the Conclusion.

Here is the Angle:  Arbitrators are taking a close look at the sufficiency of an insurer’s independent medical examination.  Insurers need to ensure that the physician or chiropractor has reviewed all medical records, films, and reports pertinent to the claim before relying upon any IME report for the basis of a denial.  Also, if a pre-existing condition is suspected to be the cause of an injury the issue must be flushed out and discussed by the physician or chiropractor.  A conclusory statement, without a basis for the opinion, that a condition is related to a pre-existing or even a subsequent condition is insufficient.

 

The Analysis:  The Applicant, eligible injured person (“EIP”), was involved in a November 2, 2003, motor vehicle accident.  The EIP underwent and sought reimbursement for neurosurgical, radiology, and hospital treatment allegedly as a result of the accident.  The insurer denied the neurosurgical treatment based upon an independent medical examination (“IME”) conducted by Dr. Ismet Hallac.

 

Arbitrator O’Connor closely scrutinized the sufficiency of the examination and held that Dr. Hallac failed to provide adequate support for his conclusion.  Yet, Dr. Hallac’s objective findings revealed that neck and back movements were full in range.  There was no paravertebral spasm or deformity in the cervical or lumbar spine.  The EIP had a straight leg raise of 90 degrees bilaterally.  There was no muscle weakness of the upper or lower extremities.  There was no change in the circumference of either the forearms or the calves.

 

Dr. Hallac further indicated that in his opinion the EIP sustained dorsal and lumbar spine strain in a subsided form.  He further recommended over-the-counter analgesics for pain.  Dr. Hallac also commented that the abnormal cervical spine MRI was pre-existing and not causally related to the accident.  He attributed the condition to two read-end collisions wherein the automobile was totaled.

 

Arbitrator O’Connor held that the insurer’s denial of neurosurgical treatment based upon Dr. Hallac’s report was improper.  She found that Dr. Hallac’s report not only failed to provide adequate support for the conclusions made but also that the conclusion of the cervical spine condition relating to two prior motor vehicle accidents lacking support.  Dr. Hallac’s report indicated that although the EIP was involved in two prior motor vehicle accidents the EIP reported no injuries.  Also, Arbitrator O’Connor noted that Dr. Hallac was not provided with a copy of the MRI studies after he indicated in his report that a review of them may alter his opinion.

 

Litigation

 

4/2/07  Mega Supply & Billing, Inc. a/a/o Ali Zahlan v. AIU Ins. Co., 2007 NYSlipOp 50687(U) (2d Dept. App. Term)

Administrative Assistant’s Affidavit Insufficient on Issue that EUO Notice Mailed as No Statement that Letters were Mailed and What Was the Insurer’s Mailing Practice and Procedure.

The Appellate Term reversed the Kings County Civil Court denial of plaintiff’s motion for summary judgment as defendant, insurer, failed to establish by proof in admissible form that the EUO scheduling letters were mailed.  The defendant submitted an affidavit from an administrative assistant who attested to forwarding the first and second request for an EUO to plaintiff’s assignor.  The court held that the affidavit was insufficient because the assistant failed to state that the letters were actually mailed as well as the defendant’s practice and procedure for properly addressing and mailing letters.

 

3/30/07            Fair Price Med. Supply Corp. v. Clarendon Nat’l Ins. Co., 2007 NYSlipOp 50639(U) (2d Dept. App. Term)

Insurer Successfully Establishes It Mailed a Timely Verification Request, Follow-Up Verification Request, and Denial of Claim!

The Appellate Term upheld the Kings County Civil Court denial of plaintiff’s motion for summary judgment as defendant, insurer, established a timely mailing of the verification request and denial of claim form.  The Court held that the insurer submitted affidavits that sufficiently established the timely initially mailing and follow up verification requests.  Also, the insurer submitted an affidavit that sufficiently established that it timely issued a denial of claim.  The Court noted that the insurer’s affidavits described in detail the standard office practice and procedure for ensuring the addressing and mailing of verification requests and denial of claim forms.

 

The Court found no merit in plaintiff’s allegation that the insurer’s denial was defective since the independent insurance adjuster that mailed the verification requests, scheduled a peer review, and mailed a denial of claim form at the insurer’s request was acting without a license.  In sum, the plaintiff failed to set forth any evidence to establish this allegation.

 

3/27/07            Montefiore Med. Ctr. v. Nationwide Ins. Co., 2007 NYSlipOp 02724 (2d Dept.)
Insurer’s Submission of Hospital Records Sufficient to Raise Issue of Fact Regarding Causal Relationship Between Accident and Treatment.

Plaintiff’s summary judgment motion regarding its fire cause of action was properly denied as the insurer submitted hospital records raising an issue of fact as to whether the patient’s condition was unrelated to the motor vehicle accident.  

 

 

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. \

 

 

4/03/2007        WEISS v. FIRST UNUM LIFE INSURANCE COMPANY
Federal RICO Cause of Action Available Against Insurers for Bad Faith Refusal to Pay Claims
Third Circuit Court of Appeals
Richard Weiss brought suit under RICO against his insurer, First Unum Life Insurance Co., claiming that First Unum discontinued payment of his disability benefits as part of First Unum’s racketeering scheme involving an intentional and illegal policy of rejecting expensive payouts to disabled insureds. The District Court dismissed his claim, believing that the allowance of such a RICO claim would interfere with New Jersey’s statutory regulation of insurers, and thus run afoul of the McCarran-Ferguson Act. On appeal, the court discussed various statutory and common law remedies available for bad faith refusal to pay insurance claims and declined to read New Jersey’s insurance regulatory scheme as intended to be exclusive. Furthermore, the court held that RICO’s provisions supplement the statutory and common-law claims for relief available under New Jersey law and thus RICO does not interfere with the regulatory scheme. For these reasons, the court concluded that RICO does not run afoul of the McCarran-Ferguson Act and reversed the district court's ruling.

Submitted by: Steve Farrar and Rebecca Zabel (Leatherwood Walker Todd & Mann, P.C.)

 

4/03/2007        ROCHOW v. LIFE INSURANCE CO. OF NORTH AMERICA
Insurance Company's Denial of Disability Benefits Was Arbitrary and Capricious When Evidence Showed Continued Cognitive Deterioration
Court of Appeals for the Sixth Circuit

Daniel Rochow, the former President of Arthur J. Gallagher & Co., currently suffers from HSV-Encephalitis, a rare and severely debilitating disease. The question in this case is whether or not the insurer, Life Insurance Company of North America acted arbitrarily and capriciously when it concluded that Rochow was not disabled on the date that he left his job, therefore denying his claim for disability benefits. The district court held that LINA’s determination was arbitrary and capricious and unsupported by the administrative record. Rochow began experiencing symptoms in 2001 and was eventually terminated as a result of his inability to perform his job. He was not diagnosed with HSV-Encephalitis until February 2002, when he was no longer working for Gallagher. On appeal, the court noted that Rochow did not have to prove that he was disabled in 2001 due to HSV-Encephalitis; only that in 2001 he was unable to perform his duties due to injury or sickness. The court further found that evidence of Rochow’s cognitive deterioration and his inability to perform his job-related duties was before LINA and that that LINA’s denial of benefits was therefore arbitrary and capricious and unsupported by substantial evidence. The court thus affirmed the district court's ruling.

Submitted by: Steve Farrar and Rebecca Zabel (Leatherwood Walker Todd & Mann, P.C.)

 

3/30/2007        MASPERO V. SAFECO LLOYDS INSURANCE COMPANY
Insured Has Burden to Present All Elements of Underinsured Motorist Claim
Texas Court of Appeals, 12th District
Elaine Maspero was involved in an automobile accident caused by the negligent conduct of another driver. At the time of the accident, Maspero was covered by an underinsured motorist policy issued by Safeco Lloyds Insurance Company (“Safeco”). After reaching a settlement with the other driver, Maspero sued Safeco for underinsured motorist benefits. The jury found that Maspero had suffered $17,128.00 in damages as a result of the collision. Because this amount was less than the amount Maspero received in settlement from the other driver, Safeco moved for, and the trial court entered, a take nothing judgment. On appeal, Maspero argued that Safeco was not entitled to an offset because it allegedly failed to properly plead and prove it was entitled to one. Safeco asserted that Maspero failed to present evidence that the tortfeasor who caused the accident was actually underinsured, a required element of an underinsured motorist claim, and was therefore not entitled to any damages under the law. Of the five elements required to prove an underinsured motorist claim, Safeco stipulated that (1) the underinsured motorist policy was in force at the time of the accident, and (2) the negligent acts of the other driver proximately caused the collision. Maspero presented evidence on the third element linking her damages to the incident. However, Maspero failed to present evidence on the fourth and fifth elements: that the negligent driver was underinsured and that all other applicable policy provisions were satisfied. Because Maspero failed to present evidence addressing two essential elements of her case, the Court of Appeals affirmed the trial court’s judgment.
Submitted by: Bruce D. Celebrezze & Erin J. Volkmar (Sedgwick, Detert, Moran & Arnold LLP)

 

 

 

 

Full Text of Cases

 

 

North American Van Lines, Inc. v, American International Companies


French & Rafter, LLP, New York (Barry Meade of counsel),
for appellants.
Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow &
Schefer, P.C., New York (Jeffrey J. Imeri of counsel), for AIG
respondents.
Dechert LLP, New York (Rodney M. Zerbe of counsel), for Aon
respondents.

Judgment, Supreme Court, New York County (Bernard J. Fried, J.), entered February 16, 2005, dismissing Action No. 1, and order, same court and Justice, entered April 10, 2006, which granted defendants' motions to dismiss Action No. 2, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered December 13, 2004, which granted defendants' motions to dismiss Action No. 1, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

In Action No. 1 for breach of contract, plaintiffs allege that broker Aon did not procure the promised insurance, which, as reflected in the binder, covered legal expenses and pre- and post-judgment interest in addition to a per occurrence retention of $5 million, and that insurer AIG issued only a draft policy that plaintiffs did not accept, thereby entitling plaintiffs to sue on the binder. This action was correctly dismissed on the ground that the binder was superseded by the policy (Springer v Allstate Life Ins. Co. of N.Y., 94 NY2d 645, 649 [2000]; ITT Indus. v Factory Mut. Ins. Co., 303 AD2d 177 [2003]). Plaintiffs' claim that the policy was just a draft or temporary policy that they rejected is contradicted by documentary evidence, including plaintiffs' admissions in the complaint and in a declaratory action concerning coverage before the Texas courts acknowledging the existence, validity and limits of the policy and receipt of payment thereunder. Nor does the correspondence referred to by plaintiffs indicate that the policy was rejected or just a draft (see Indian Country Inc. v Pennsylvania Lumbermans Mut. Ins. Co., 284 AD2d 712, 714). Action No. 2, which was filed after the dismissal with prejudice of Action No. 1, seeks to recover on theories of fraud and equitable estoppel based on allegations that defendants misled plaintiffs into buying inadequate coverage, and arises out of the same transaction and demands the same damages as Action No. 1, was correctly dismissed on the ground of res judicata (see Matter of Hunter, 4 NY3d 260, 269 [2005]; Dorsey v Medical Socy. of State of New York, 294 AD2d 129, 129-130 [2002]). We have considered plaintiffs' other arguments and find them unavailing.

State Farm Ins. Co. v. Pennsylvania Manufacturers' Assoc. Ins. Co.


Smith Mazure Director Wilkins Young & Yagerman, P.C.,
New York (Louis H. Klein of counsel), for appellant.
Picciano & Scahill, P.C., Westbury (Francis J. Scahill of
counsel), for respondent.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about March 24, 2006, which granted the petition to vacate an arbitration award entered in favor of respondent in the amount of $25,000, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered on or about May 17, 2006, which denied respondent's motion to reargue, unanimously dismissed, without costs, as no appeal lies from the denial of reargument.

The underlying personal injury action involved an automobile accident in which the plaintiffs were passengers in a vehicle owned and operated by petitioner's insured, which collided with a truck that was owned and operated by the respondent's insureds. The plaintiffs sued respondent's insureds and a third-party action was later commenced against petitioner's insured. Following the completion of discovery and after a jury had been selected, respondent, without the consent of petitioner, settled with the plaintiffs for a total of $100,000 and announced on the record that the action and third-party action were discontinued. The plaintiffs, in connection with the settlement, executed releases listing all relevant parties, including petitioner and respondent, as releasees. Respondent then commenced an arbitration proceeding seeking contribution from petitioner, which resulted in the award of $25,000.

The court properly granted the petition and vacated the award as irrational and violative of public policy. The court correctly determined that in light of the settlement and accompanying releases, General Obligations Law § 15-108 prohibited respondent from seeking contribution and there was no arbitrable controversy to decide (see CPLR 7511(b)(1)(iii); Matter of Spear, Leeds & Kellogg v Bullseye Securities, Inc., 291 AD2d 255 [2002]; cf. Matter of State Farm Fire & Cas. Co. v Assurance Co. of Am./Zurich, U.S., 276 AD2d 704 [2000]).

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

Litz v. F.J. Gray & Co.


Mintzer Sarowitz Zeris Ledva & Meyers, New York, N.Y. (Mayya
S. Gotlib of counsel), for appellants.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Grays, J.), entered November 28, 2005, which 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, without costs or disbursements.

Contrary to the defendants' assertions, they 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 (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350; Gaddy v Eyler, 79 NY2d 955, 956-957). The affirmed medical report of the defendants' examining neurologist conceded the existence of limitations of motion of the plaintiff's cervical and lumbar spine (see McDonald v Pookie Hacking Corp., AD3d [2d Dept, Feb. 6, 2007]; Quinones v E & L Transp., Inc., 35 AD3d 577; Museau v New York City Tr. Auth., 34 AD3d 772, 772-773; Smith v Delcore, 29 AD3d 890; Sano v Gorelick, 24 AD3d 747; Spuhler v Khan, 14 AD3d 693, 694; Omar v Bello, 13 AD3d 430; Scotti v Boutureira, 8 AD3d 652), and stated "[s]ymptoms are causally related to the incident by history." Since the defendants failed to meet their initial burden of establishing prima facie entitlement to summary judgment, it is unnecessary to consider whether the plaintiff's papers in opposition to the defendants' motion were sufficient to raise a triable issue of fact (see McDonald v Pookie Hacking Corp., supra; Iles v Jonat, 35 AD3d 537; Coscia v 938 Trading Corp., 283 AD2d 538). CRANE, J.P., SANTUCCI, FLORIO, DILLON and BALKIN, JJ., concur.

 

Ochs v. Vaul Trust



Leahey & Johnson, P.C., New York, N.Y. (Peter James Johnson,
Jr., James P. Tenney, and Joanne Filiberti of counsel), for appellants.
Asher & Associates, P.C., New York, N.Y. (Ryan H. Asher of counsel), for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Frank Mannino and Philip M. Licitra appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated May 2, 2006, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that Dinusha P. Ratnayake did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and denied their cross motion for leave to amend their answer to assert the affirmative defense of lack of capacity to sue and to cap the amount of the plaintiff's damages at $7,500.

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

By submitting the affirmed reports of their orthopedic surgeon and radiologist, the defendants Frank Mannino and Philip M. Licitra (hereinafter the defendants) established, prima facie, that the injuries sustained by Dinusha P. Ratnayake were not serious within the meaning of Insurance Law § 5102(d) (see Gaddy v Eyler, 79 NY2d 955, 956-957). However, the affidavit prepared by Ratnayake's treating chiropractor raised a triable issue of fact as to whether he sustained a "significant limitation of use of a body function or system" as a result of the accident (see Insurance Law 5102[d]; Kraemer v Henning, 237 AD2d 492). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.

The Supreme Court also properly denied the defendants' separate cross motion for leave to amend their answer to assert the affirmative defense of lack of capacity to sue and to cap the amount of the plaintiff's damages at $7,500. Unlike Sartori v Met Life (11 AD3d 597), and Whelan v Longo (23 AD3d 459, affd 7 NY3d 821), relied upon by the defendants, this personal injury action was commenced before the filing of Ratnayake's bankruptcy petition, and thus, is considered property of the debtor under the U.S. Bankruptcy Code (see 11 USC § 541[a][1]; Martinez v Desai, 273 AD2d 447, 448-449). Where a trustee is appointed, as here, the personal injury claim then vests in the bankruptcy trustee (see Dynamics Corp. of Am. v Marine Midland Bank of N.Y., 69 NY2d 191, 195; Mehlenbacher v Swartout, 289 AD2d 651, 652; DeLarco v DeWitt, 136 AD2d 406, 408). The bankruptcy trustee properly listed Ratnayake's personal injury action as an unliquidated contingent claim on Schedule B of the bankruptcy petition, which had the effect of preserving the claim for administration through the bankruptcy court. The value of Ratnayake's interest in the personal injury claim was listed as the full $7,500 personal exemption permitted under 11 USC § 522(b)(2). The bankruptcy trustee therefore established his capacity to pursue the personal injury action as property of the debtor and, contrary to the defendants' contention, the trustee was not required to also list on Schedule B categories of potential damages to preserve the right to any recovery beyond the $7,500 personal exemption. Because the theory upon which the defendants based their cross motion for leave to amend their answer was clearly without merit, it was properly denied (see City of New York v Zurich-American Ins. Group, 27 AD3d 609, 611).
SANTUCCI, J.P., KRAUSMAN, LIFSON and DILLON, JJ., concur.

Osgood v. Martes



Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Holly E. Peck of counsel), for appellants.
Maggiano, DiGirolamo, Lizzi & Roberts, New York, N.Y.
(Michael Lizzi of counsel), for respondents.

 

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Schack, J.), dated April 25, 2005, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff James W. Osgood 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 defendants' motion for summary judgment dismissing the complaint is granted.

The defendants satisfied their prima facie burden of demonstrating that the plaintiff James W. Osgood (hereinafter 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, 956-957). In opposition, the plaintiffs failed to raise a triable issue of fact warranting the denial of summary judgment. The affirmed medical reports of the plaintiff's treating physician failed to compare the range of motion of the plaintiff's lumbar spine to what is considered the normal range of motion (see Caracci v Miller, 34 AD3d 515, Nagbe v Minigreen Hacking Group, 22 AD3d 326, 327; Bent v Jackson, 15 AD3d 46, 49). Moreover, the plaintiff failed to offer an adequate explanation for the almost three-year gap in his treatment (see Pommells v Perez, 4 NY3d 566, 574; Hasner v Budnik, 35 AD3d 366, 368; Connors v Flaherty, 32 AD3d 891, 893; Caracci v Miller, supra; Batista v Olivo, 17 AD3d 494). The MRI reports submitted by the plaintiffs were unaffirmed, and thus were without probative value in opposing the motion for summary judgment (see Grasso v Angerami, 79 NY2d 813, 814-815; Hernandez v Taub, 19 AD3d 368; Pagano v Kingsbury, 182 AD2d 268, 270).

Accordingly, the defendant's motion for summary judgment dismissing the complaint should have been granted.
CRANE, J.P., SANTUCCI, FLORIO, DILLON and BALKIN, JJ., concur.

Passaretti v. Ping Kwok Yung



Edelman, Krasin & Jaye, PLLC, Carle Place, N.Y. (Stuart Kitchner of counsel), for appellant.
Cheven, Keely & Hatzis, New York, N.Y. (Mayu Miyashita of counsel), for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Dorsa, J.), dated February 28, 2006, as granted the defendant's motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury with the meaning of Insurance Law § 5102(d).

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

The defendant 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 Gaddy v Eyler, 79 NY2d 955, 956-957). The affirmed medical reports of the defendant's physician established that the plaintiff's spinal injuries were not causally related to the subject motor vehicle accident, were degenerative and osteoarthritic in nature, and existed prior to the subject accident (see Fryar v First Student, Inc., 21 AD3d 525, 526; Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456). The MRI reports prepared by the plaintiff's radiologist upon which the defendant's physician relied (see Kearse v New York City Tr. Auth., 16 AD3d 45, 47, n1; Meely v 4G's Truck Renting Co., 16 AD3d 26, 29; Pagano v Kingsbury, 182 AD2d 268, 271) provided support for these conclusions (cf. Beyel v Console, 25 AD3d 636).

In opposition, the plaintiff's evidence failed to raise a triable issue of fact. The plaintiff's physicians failed to address the findings of degenerative and osteoarthritic changes noted in the MRI reports (see Khan v Finchler, 33 AD3d 966, 967). Under these circumstances, their opinions that the plaintiff's injuries were causally related to the subject accident were speculative (see Tudisco v James, 28 AD3d 536, 537; Giraldo v Mandanici, 24 AD3d 419, 420).

Accordingly, the Supreme Court properly granted the defendant's 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).
CRANE, J.P., SANTUCCI, FLORIO, DILLON and BALKIN, JJ., concur.

Sookoo v. Paredes


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellants.
Jeffrey Hirsch, Cedarhurst, N.Y., for respondent.

 

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 (Ambrosio, J.), dated July 17, 2006, which 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, with costs.

The defendants made a prima facie showing that the plaintiff did not sustain a serious injury as a result of the subject accident (see Insurance Law § 5102[d]; Baez v Rahamatali, 6 NY3d 868, 869; Cervino v Gladysz-Steliga, 36 AD3d 744). However, in opposition to the motion, the plaintiff submitted sufficient medical and other evidence to raise triable issues of fact, thereby warranting the denial of the defendants' motion for summary judgment (see e.g. Gonzalez v Baik, 36 AD3d 854; Cenatus v Rosen, 3 AD3d 546).
MASTRO, J.P., RITTER, SKELOS, CARNI and McCARTHY, JJ., concur.

 

Umanzor v. Pineda



Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C.,
Mineola, N.Y. (Mark R. Bernstein of counsel), for appellant.
Kelly, Rode & Kelly, LLP, Riverhead, N.Y. (Paul Loumeau of counsel),

 for respondents Martha A. Zelada and Jose J. Trejo.


 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Weber, J.), dated February 28, 2006, which granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants, who relied on the same evidentiary submissions, satisfied their respective prima facie burdens 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 (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. The affidavit of the plaintiff's treating chiropractor failed to proffer objective medical evidence that was 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; Ranzie v Abdul-Massih, 28 AD3d 447, 448; Li v Woo Sung Yun, 27 AD3d 624, 625), and did not indicate that he reviewed the actual MRI films from 2002 (see Friedman v U-Haul Truck Rental, 216 AD2d 266). The affirmation of the plaintiff's examining radiologist merely acknowledged the existence of herniated discs in the plaintiff's cervical spine and failed to address the affirmed medical report of the examining radiologist of the defendants Martha A. Zelada and Jose J. Trejo, which noted the existence of a long-standing degenerative disc disease. 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 Whitfield-Forbes v Pazmino, 36 AD3d 901; Mejia v DeRose, 35 AD3d 407; Yakubov v CG Trans. Corp., 30 AD3d 509; Cerisier v Thibiu, 29 AD3d 507; Bravo v Rehman, 28 AD3d 694; Kearse v New York City Tr. Auth., 16 AD3d 45; Diaz v Turner, 306 AD2d 241). Since the plaintiff relied on no other objective medical evidence, the mere existence of herniated discs did not raise a triable issue as to whether she suffered a serious injury.
SCHMIDT, J.P., KRAUSMAN, GOLDSTEIN, COVELLO and ANGIOLILLO, JJ., concur.

 

 

Williams v. Hassan



Picciano & Scahill, P.C., Westbury, N.Y. (Robin Mary Heaney and
Francis J. Scahill of counsel), for appellant.
DeSimone, Aviles, Shorter & Oxamendi, LLP, New York, N.Y.
(Cheryl Masselli of counsel), for respondents.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Dabiri, J.), dated February 27, 2006, as granted the defendants' cross 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 insofar as appealed from, on the law, with costs, and the defendants' cross 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) is denied.

The Supreme Court erred in granting the defendants' cross motion for summary judgment dismissing the complaint. The defendants failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). The defendants' moving papers did not address the allegations made by the plaintiff, as contained in the plaintiff's bill of particulars which was submitted in support of the cross motion, that as a result of the accident she sustained an injury which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activity for a period of not less than 90 days during the 180 days immediately following the accident (see Insurance Law § 5102[d]; Nakanishi v Sadaqat, 35 AD3d 416; Sayers v Hot, 23 AD3d 453, 454; Nembhard v Delatorre, 16 AD3d 390, 391; Kawasaki v Hertz Corp., 199 AD2d 46). Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, it is unnecessary to reach the question of whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538).
RIVERA, J.P., SPOLZINO, FISHER, LIFSON and DICKERSON, JJ., concur.

 

 

Cedillo v. Rivera



Michael A. Cervini, Jackson Heights, N.Y. (Jonathan B. Seplowe of counsel), for appellant.
Abrams, Gorelick, Friedman & Jacobson, P.C., New York, N.Y.
(Barry Jacobs 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, Kings County (Bayne, J.), dated March 8, 2006, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he 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 denied.

The defendants failed to make a prima facie showing 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). The defendants' examining neurologist, in his affirmed report, merely determined that the plaintiff had full range of motion of the neck but did not set forth what objective testing was done to support that determination, thus rendering it conclusory (see Schacker v County of Orange, 33 AD3d 903, 904; 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). As to the lumbar spine, he merely noted that the plaintiff complained of pain with 90 degrees of flexion and failed to compare that finding to normal, again rendering the finding conclusory (see Harman v Busch, AD3d [2d Dept, Feb. 13, 2007]; Iles v Jonat, 35 AD3d 537, 538; Mirochnik v Ostrovskiy, 35 AD3d 413; Kavanagh v Singh, 34 AD3d 744, 745-746; Caracci v Miller, 34 AD3d 515; Agathe v Tun Chen Wang, 33 AD3d 737, 738; Mondi v Keahon, 32 AD3d 506; Benitez v Mileski, 31 AD3d 473, 474). The defendants' examining orthopedic surgeon, in his affirmed report, set forth range of motion findings as to the plaintiff's cervical spine, lumbar spine, and knees, but failed to compare those findings to the normal ranges of motion for those regions of the plaintiff's body, rendering the determination conclusory (see Harman v Busch, supra; Iles v Jonat, supra). Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the submissions by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Ayotte v Gervasjo, 81 NY2d 1062, 1063; Coscia v 938 Trading Corp., 283 AD2d 538).
RIVERA, J.P., SPOLZINO, FISHER, LIFSON and DICKERSON, JJ., concur.

 

Bluth v. WorldOmni Financial Corp.



Marcel Weisman, New York, N.Y. (Ephrem Wertenteil of counsel),
for appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y.

(Joseph A. H. McGovern and
John D. Morio of counsel), for respondent WorldOmni Financial Corp.
Irwen C. Abrams, Brooklyn, N.Y. (Boeggeman, George, Hodges
& Corde, P.C. [Cynthia Dolan] of counsel), for respondent Edouard Melnikov.

 

DECISION & ORDER

In a consolidated action to recover damages for personal injuries, the plaintiff Mark Bluth appeals from so much of an order of the Supreme Court, Kings County (Hurkin-Torres, J.), dated January 3, 2006, as granted those branches of the separate motions of the defendant WorldOmni Financial Corp. and the defendant Edouard Melnikov which were for summary judgment dismissing the complaint insofar as asserted by him on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, and those branches of the separate motions of the defendant WorldOmni Financial Corp. and the defendant Edouard Melnikov which were for summary judgment dismissing the complaint insofar as asserted by the plaintiff Mark Bluth are denied.

The defendants WorldOmni Financial Corp. and Edouard Melnikov failed to make prima facie showings that the appellant 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, 350; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their separate motions, they relied upon, inter alia, the affirmed medical report of Dr. Edward Toriello, an examining orthopedic surgeon. In his report, he set forth the results of the appellant's various magnetic resonance imaging reports, including those of the appellant's lumbar spine, which revealed that the appellant had, inter alia, bulging discs at L3 through S1. When setting forth his range of motion findings concerning the appellant's lumbar spine, he noted "decreased flexion of 70 degrees," yet did not compare that finding to the normal range of motion (see Harman v Busch, AD3d [2d Dept, Feb. 13, 2007]; Iles v Jonat, 35 AD3d 537, 538; Mirochnik v Ostrovskiy, 35 AD3d 413; Kavanagh v Singh, 34 AD3d 744, 745-746; Agathe v Tun Chen Wang, 33 AD3d 737, 738; Mondi v Keahon, 32 AD3d 506, 506-507; Benitez v Mileski, 31 AD3d 473, 474). Moreover, while he indicated that there was a limitation in the range of motion, absent a comparative quantification of that limitation to what is deemed normal, it cannot be concluded that the decreased range of motion is mild, minor, or slight so as to be considered insignificant within the meaning of the no-fault statute (see Harman v Busch, supra; Iles v Jonat, supra at 538; McCrary v Street, 34 AD3d 768, 769; Whittaker v Webster Trucking Corp., 33 AD3d 613; Yashayev v Rodriguez, 28 AD3d 651, 652; Kaminsky v Waldner, 19 AD3d 370, 371; see also Gaddy v Eyler, supra at 957; Licari v Elliott, 57 NY2d 230, 236).

Since the defendants failed to meet their respective burdens, it is unnecessary to consider whether the papers submitted by the appellant in opposition were sufficient to raise a triable issue of fact (see Harman v Busch, supra; Iles v Jonat, supra at 538; McCary v Street, supra at 769; Whittaker v Webster Trucking Corp., supra at 613).
SCHMIDT, J.P., KRAUSMAN, GOLDSTEIN, COVELLO and ANGIOLILLO, JJ., concur.

Buchanan v. Celis



John P. Gianfortune, P.C., Rockville Centre, N.Y. (Michelle S.
Russo, P.C., of counsel), for appellant.
Theodore A. Stamas (Sweetbaum & Sweetbaum, Lake Success,
N.Y. [Joel A. Sweetbaum] of counsel), for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered February 1, 2006, which granted that branch of the defendant's cross motion which was for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and denied, as academic, her motion for summary judgment on the issue of liability, and (2), as limited by her brief, from so much of an order of the same court dated May 31, 2006, as denied that branch of her motion which was for leave to renew her opposition to the defendant's cross motion.

ORDERED that the order entered February 1, 2006, is reversed, on the law, with costs, that branch of the defendant's cross motion which was for summary judgment dismissing the complaint is denied, and the matter is remitted to the Supreme Court, Nassau County, for a determination of the plaintiff's motion for summary judgment on the issue of liability on the merits; and it is further,

ORDERED that the appeal from the order dated May 31, 2006, is dismissed as academic in light of our determination on the appeal from the order entered February 1, 2006.

With respect to the order entered February 1, 2006, the defendant failed, on his cross motion, 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, 956-957). The defendant relied on the affirmed medical report of his examining orthopedist, which noted limitations in the plaintiff's lumbar spine range of motion, specifically during sitting and supine straight leg raising testing, that were not adequately quantified or qualified so as to establish the absence of a significant limitation of motion (see Dzaferovic v Polonia, 36 AD3d 652; McCrary v Street, 34 AD3d 768, 769; Iles v Jonat, 35 AD3d 537, 538; Whittaker v Webster Trucking Corp., 33 AD3d 613; Kaminsky v Waldner, 19 AD3d 370). Since the defendant failed to satisfy his prima facie burden on his cross motion, it is unnecessary to consider whether the papers submitted by the plaintiff in opposition to the defendant's cross motion raised a triable issue of fact (see Dzaferovic v Polonia, supra; Coscia v 938 Trading Corp., 283 AD2d 538). In light of this determination, the plaintiff's appeal from the order dated May 31, 2006, has been rendered academic.

The Supreme Court, having granted the defendants' cross motion, denied, as academic, the plaintiff's motion for summary judgment on the issue of the defendant's liability for the happening of the subject accident. Therefore, we remit the matter to the Supreme Court, Nassau County, to determine the plaintiff's motion on the merits (see Torres v Performance Auto Group, Inc., 36 AD3d 894; Campbell v Vakili, 30 AD3d 457; Korpalski v Lau, 17 AD3d 536, 538).
SCHMIDT, J.P., KRAUSMAN, GOLDSTEIN, COVELLO and ANGIOLILLO, JJ., concur.

 

Diaz v. Kanuteh


Marylyn P. Lipman, Brooklyn, for appellant.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Holly E. Peck of counsel), for Bengally Kanuteh and Ceesay's Express Inc., respondents.
Anita Nissan Yehuda, Roslyn Heights, for Roland K. Michely and Glen Boles, respondents.
Acito, Klein & Candiloros, P.C., New York (Lisa M. Comeau of counsel),

for H Im Kwang and J Im Sung, respondents.

 

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered February 3, 2006, which granted the motion by defendants Kanuteh and Ceesay's Express, and the cross motions by defendants Michely, Boles, H Im Kwang and J Im Sung, for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 

Each pair of movants established a prima facie case that plaintiff's injuries were not serious, by non-conclusory affidavits from medical experts who examined plaintiff and found no injury from the 1999 accident that satisfied the statutory threshold (Insurance Law § 5102[d]). When the burden then shifted to plaintiff, his medical expert could offer only a conclusory opinion as to causation (see Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]).

 

 

Hyun Jun Kim v. Collazo



Sim & Park, LLP, New York, N.Y. (Sang J. Sim of counsel), for appellant.
Saretsky Katz Dranoff & Glass, LLP, New York, N.Y. (Robert B. Weissman of counsel),

 for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Dorsa, J.), entered March 6, 2006, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that he 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 denied.

The defendant established, prima facie, his entitlement to judgment as a matter of law on his motion by showing, via his submissions, 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, 350-353; Gaddy v Eyler, 79 NY2d 955, 956-957).

Contrary to the Supreme Court's determination, however, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury within the meaning of the Insurance Law as a result of the accident. The plaintiff submitted, inter alia, the affidavit of his treating chiropractor and the affirmation of his examining orthopedist, both specifying the decreased range of motion in his cervical and lumbar regions as evidenced by objective findings, along with evidence of herniated and bulging discs in the cervical and lumbar spine as confirmed by magnetic resonance imaging tests. The plaintiff's treating chiropractor, as well as his examining orthopedist, also asserted, in their respective submissions, that the plaintiff's injuries and limitations in his cervical and lumbar spine were permanent, and causally related to the accident. These submissions were sufficient to raise a triable issue of fact as to whether the plaintiff sustained a permanent consequential or significant limitation of use of his cervical and/or lumbar spine as a result of the subject accident (see Lim v Tiburzi, 36 AD3d 671; Shpakovskaya v Etienne, 23 AD3d 368, 369; Clervoix v Edwards, 10 AD3d 626, 627).
CRANE, J.P., SANTUCCI, FLORIO, DILLON and BALKIN, JJ., concur.

 

Kaplun v. Septama



Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Michael I. Josephs of counsel), for appellant.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Douglass, J.), dated May 3, 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 affirmed, without costs or disbursements.

The defendant met his burden of establishing prima facie that the plaintiff did not sustain a serious injury from the subject accident (see Insurance Law § 5102[d]; Baez v Rahamatali, 6 NY3d 868, 869; Cervino v Gladysz-Steliga, 36 AD3d 744; Wright v Peralta, 26 AD3d 489). In opposition, the plaintiff raised a triable issue of fact by presenting medical evidence contemporaneous with the subject accident that she sustained a possible fracture from the subject accident (see Bonner v Hill, 302 AD2d 544). Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.
SCHMIDT, J.P., KRAUSMAN, GOLDSTEIN, COVELLO and ANGIOLILLO, JJ., concur.

 

 

McLaughlin v. Rizzo



Russo, Fox & Karl, Hauppauge, N.Y. (Kevin M. Fox of counsel), for appellant.
Catalano, Gallardo & Petropoulos, LLP, Jericho, N.Y.
(Domingo R. Gallardo and Michael R. Levin 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, Suffolk County (Doyle, J.), entered February 14, 2006, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he 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 denied.

Contrary to the Supreme Court's determination, 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, 956-957). In support of the defendants' motion, the defendants relied upon, inter alia, the affirmed medical report of their examining orthopedic surgeon, who examined the plaintiff on March 25, 2005. In his affirmed report, the orthopedic surgeon set forth the findings in a prior X-ray report of the plaintiff's cervical spine, as well as the evidence of acromioclavicular osteoarthritis in the plaintiff's right shoulder as set forth in a prior magnetic resonance imaging report. He deemed those findings to be degenerative in nature, pre-existing the subject accident. The orthopedic surgeon also set forth range of motion findings based on his examination of the plaintiff's cervical spine and shoulders. In doing so, he failed to compare any of those numeric findings to what is deemed normal ranges of motion for those regions of the plaintiff's body (see Harman v Busch, AD3d [2d Dept, Feb. 13, 2007]; Iles v Jonat, 35 AD3d 537, 538; Mirochnik v Ostrovskiy, 35 AD3d 413; Kavanagh v Singh, 34 AD3d 744, 745-746). While he admitted that the numeric findings concerning the plaintiff's cervical spine amounted to a "mild" limitation and were consistent with the degenerative changes noted in the plaintiff's cervical X-ray report, he made no such claim with respect to the numeric findings concerning the plaintiff's bilateral shoulder range of motion. In fact, he admitted that the plaintiff appeared to suffer from traumatic aggravation of right shoulder acromioclavicular osteoarthritis as a result of the subject accident, which was alleged by the plaintiff in his amended bill of particulars. When reviewed, the numeric findings regarding bilateral shoulder range of motion, as set forth in the orthopedist's report, evinced apparent limitations when compared to one another. Absent a comparative quantification of those findings observed in his report as to what is normal, it cannot be concluded that the range of motion in the plaintiff's right shoulder was normal, or that any limitations were mild, minor, or slight so as to be considered insignificant within the meaning of the no-fault statute (see Harman v Busch, supra; Iles v Jonat, supra; 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; see also Gaddy v Eyler, supra at 957; Licari v Elliott, 57 NY2d 230, 236).

Moreover, the defendants also relied on the affirmed medical report of another orthopedic surgeon, who examined the plaintiff on May 16, 2003. In his report, concerning the plaintiff's cervical spine range of motion, he merely noted that the plaintiff was able to move his neck "in all directions without any deficits." However, he failed to set forth the objective testing that he performed in order to arrive at this conclusion (see Schacker v County of Orange, 33 AD3d 903, 904; 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). This orthopedic surgeon further conceded the existence of limitations in the plaintiff's right shoulder range of motion, especially in forward flexion and abduction. However, he never compared those findings to what is deemed normal ranges of motion for such tests (see Harman v Busch, supra; Iles v Jonat, supra; Mirochnik v Ostrovskiy, supra; Kavanagh v Singh, supra; Caracci v Miller, 34 AD3d 515; Agathe v Tun Chen Wang, 33 AD3d 737, 738; Mondi v Keahon, 32 AD3d 506, 507; Benitez v Mileski, 31 AD3d 473, 474). He further noted that the medical reports of the plaintiff, which he reviewed, showed a prior degenerative process in the plaintiff's right shoulder. However, he still concluded that the plaintiff sustained an aggravation of that prior condition as a result of the subject accident. With that, he set forth the numeric limitations in the range of motion of the plaintiff's right shoulder based on his examination of the plaintiff. His report evinced that the traumatic aggravation to the pre-existing condition in the plaintiff's right shoulder, as caused by the subject accident, resulted in the limitations in right shoulder range of motion observed by him and noted in his report. Absent a comparative quantification of those numeric limitations observed in his report as to what is normal, it cannot be concluded that the decreased range of motion in the plaintiff's right shoulder, as conceded by this orthopedic surgeon, is mild, minor, or slight so as to be considered insignificant within the meaning of the no-fault statute (see Harman v Busch, supra; Iles v Jonat, supra; McCrary v Street, supra; Whittaker v Webster Trucking Corp., supra; Yashayev v Rodriguez, supra; Kaminsky v Waldner, supra; see also Gaddy v Eyler, supra; Licari v Elliott, supra).

Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, it is unnecessary to consider whether the plaintiff's papers submitted in opposition raised a triable issue of fact (see Harman v Busch, supra; Coscia v 938 Trading Corp., 283 AD2d 538).
MASTRO, J.P., RITTER, SKELOS, CARNI and McCARTHY, JJ., concur.

 

Phillips  v. Stephan Hacking Corp.



Michael Siegel, P.C., Jackson Heights, N.Y., for appellants.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for respondents.

 

DECISION & ORDER

In an action to recover damages for personal injuries and property damage, the plaintiffs appeal from an order of the Supreme Court, Queens County (Polizzi, J.), dated February 22, 2006, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Peter Phillips did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and denied, as academic, their cross motion for summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, the defendants' motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Supreme Court for a determination of the plaintiffs' cross motion on the merits.

The defendants made a prima facie showing that the plaintiff Peter Phillips did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Baez v Rahamatali, 6 NY3d 868, 869; Ranzie v Abdul-Massih, 28 AD3d 447, 448; Wright v Peralta, 26 AD3d 489). The plaintiffs, however, raised a triable issue of fact as to whether the plaintiff Peter Phillips sustained a serious injury (see Pommells v Perez, 4 NY3d 566, 577). Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.

In addition, the Supreme Court should have determined the plaintiffs' cross motion on the issue of liability both as it relates to the serious injury claim and to the plaintiffs' claim for property damage. Therefore, we remit the matter to the Supreme Court for a determination of the plaintiffs' cross motion on the merits.
MASTRO, J.P., RITTER, SKELOS, CARNI and McCARTHY, JJ., concur.

 

 

 

Ryan v. Preferred Mut. Ins. Co.


Carter, Conboy, Case, Blackmore, Maloney & Laird,
P.C., Albany (Louis V. Gasparini of counsel), for appellant.
Bosman, Jeffers & Associates, P.L.L.C., Albany (T.
Padric Moore of counsel), for respondents.

MEMORANDUM AND ORDER


Crew III, J.P.

Appeal from that part of an order of the Supreme Court (Ceresia Jr., J.), entered July 26, 2006 in Rensselaer County, which partially denied the motion of defendant H.R. Talmon Claim Associates to dismiss the complaint against it.

In January 2004, plaintiffs contacted defendant William J. Fagan & Sons, Inc., an insurance broker, to procure a homeowner's insurance policy for their residence in the Town of Cropseyville, Rensselaer County. Fagan, in turn, obtained a policy from defendant Preferred Mutual Insurance Company (hereinafter the insurer) covering the period from February 2, 2004 to February 2, 2005. Thereafter, in April 2004, the radiant heating system in plaintiffs' home malfunctioned, allegedly resulting in substantial damage to the property. Plaintiffs provided notice of the loss to Fagan, which, in turn, notified the insurer.

In response thereto, the insurer sent an engineer and, ultimately, defendant H.R. Talmon Claim Associates, an insurance claims adjuster, to inspect the property and assess the damage to plaintiffs' home. Following such inspection, Talmon purportedly assured plaintiffs that the insurer would cover the loss and provide full compensation for all damages related thereto provided that plaintiffs replace their defective radiant heating system with a similarly expensive system. According to plaintiffs, Talmon further encouraged them to proceed with the replacement of the heating system and the other related repairs to their home before Talmon submitted a formal claim to the insurer. As a result, plaintiffs undertook such work at their own expense believing that reimbursement by the insurer would be forthcoming. After the heating system had been replaced and the necessary repairs completed, the insurer informed plaintiffs that the damages sought were subject to a policy exclusion and, therefore, they would not be reimbursed for the costs and expenses they incurred.

Plaintiffs thereafter commenced this action against Fagan, Talmon and the insurer alleging fraud, negligence and negligent misrepresentation. Following joinder of issue by Fagan and the insurer, Talmon moved to dismiss the complaint for failure to state a cause of action. Supreme Court granted the motion in part, dismissing plaintiffs' claims sounding in negligence and fraud, but denied the motion as to plaintiffs' claim for negligent misrepresentation. Talmon now appeals contending that Supreme Court erred in failing to dismiss the complaint against it in its entirety.

We affirm. As a general rule, an insurance adjuster, acting as an agent of a disclosed principal and whose actions were undertaken at the behest and direction of the insurer, cannot be held personally liable to an injured plaintiff (see Bardi v Farmers Fire Ins. Co., 260 AD2d 783, 787 [1999], lv denied 93 NY2d 815 [1999]). However, as Supreme Court aptly observed, recovery may be had for a "pecuniary loss sustained as a result of another's negligent misrepresentations [if] . . . there was either actual privity of contract between the parties or a relationship so close as to approach that of privity" (Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377, 382 [1992]). "Therefore, before liability may attach, the evidence must demonstrate '(1) an awareness by the maker of the statement that it is to be used for a particular purpose; (2) reliance by a known party on the statement in furtherance of that purpose; and (3) some conduct by the maker of the statement linking it to the relying party and evincing its understanding of that reliance'" (Parrott v Coopers & Lybrand, 95 NY2d 479, 484 [2000], quoting Prudential Ins. Co. v Dewey, Ballantine, Bushby, Palmer & Wood, supra at 384).

Applying these principles to the matter before us and accepting, as we must on a motion to dismiss pursuant to CPLR 3211 (a) (7), the facts alleged in plaintiffs' complaint as true (see Griffin v Anslow, 17 AD3d 889, 891 [2005]), it is readily apparent that plaintiffs have established the existence of a relationship with Talmon approaching that of privity. As previously discussed, plaintiffs have alleged/averred that they relied upon Talmon's expertise in recommending not only that their heating system be replaced, but that it be replaced with an equally expensive model, notwithstanding the availability of a less expensive system, in representing that the costs associated therewith would be fully covered by the insured and, finally, in proceeding with such replacement and the corresponding repairs prior to the submission of a formal claim to the insured. From such allegations, it may reasonably be inferred that Talmon was aware that plaintiffs would use such representations "for a particular purpose" and would rely upon them in proceeding with the recommended course of action. Accordingly, we agree with Supreme Court that the requisite three-part test was met and, therefore, Talmon's motion to dismiss plaintiffs' cause of action for negligent misrepresentation was properly denied.

In the Matter of New York Central Mutual Fire Insurance Company v. Ward


Siben & Siben, LLP, Bay Shore, N.Y. (Shayne, Dachs, Stanisci,
Corker & Sauer [Jonathan A. Dachs] of counsel), for appellant.
Cullen and Dykman, LLP, Brooklyn, N.Y. (Joseph Miller of
counsel), for respondent.

 

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to stay arbitration of a claim for underinsured motorist benefits, Mark W. Ward appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (Henry, J.), dated March 31, 2005, which granted the petition and permanently stayed the arbitration.

ORDERED that the order and judgment is reversed, on the law, without costs or disbursements, the petition is denied, and the proceeding is dismissed.  The appellant was injured in an automobile accident, at which time the appellant's vehicle was insured under a policy issued by New York Central Mutual Fire Insurance Company (hereinafter the petitioner). The policy provided, inter alia,

"II. Damages for Bodily Injury Caused by Uninsured Motor Vehicles

We will pay all sums that the insured or the insured's legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by an accident arising out of such uninsured motor vehicle's ownership, maintenance or use, subject to the Exclusions, Conditions, Limits and other provisions of this SUM endorsement."

* * *

 

"V. Part E - DUTIES AFTER AN ACCIDENT OR LOSS, Part E is replaced by the following: DUTIES AFTER AN ACCIDENT OR LOSS, We have no duty to provide coverage under this policy if the failure to comply with the following duties is prejudicial to us: A: We must be notified as soon as reasonably possible of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses."

It is well settled that a contract of insurance is no different from any other contract and must be construed in a fair and reasonable manner, having regard to the risk and subject matter of the policy, and that special rules such as liberal construction in favor of the insured and against the insurer who drew the contract apply (see Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321; Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390; General Assur. Co. v Schmitt, 265 AD2d 299 ["The law is clear that if an insurance policy is written in such language as to be doubtful or uncertain in its meaning, all ambiguity must be resolved in favor of the insured against the insurer"]).

In the present case, the petitioner clearly assumed a contractual obligation to provide coverage for the appellant unless the appellant's failure to comply with his contractual duties is prejudicial to it. Here, the appellant substantially complied with the policy's notice and proof of claim conditions insofar as he supplied the petitioner with prompt written notice of the accident, an application for no fault benefits, a sworn police accident report, and authorizations to obtain medical records. The petioner demonstrated no prejudice in this matter stemming from the appellant's failure to submit the proffered proof of claim form (see Matter of Nationwide Mut. Ins. Co. [Mackey], 25 AD3d 905 [the insured's attorney supplied prompt written notice of the accident, made a claim for no-fault benefits, and indicated that SUM coverage was implicated. Written notice regarding a SUM claim was repeated at least twice over the ensuing six months. The insured forwarded to the insurer the police accident report as well as the pertinent medical records. The insurer did not deny receiving any of these various letters and documents from the insured. The insurer failed to show any prejudice and, under the circumstances, was not permitted to disclaim SUM coverage]).

This court has held that where an insurance policy is conditioned upon the insured's timely completion and return of proof of claim forms, the insured's failure to do so, or to have a reasonable excuse for the failure, is a breach of a condition precedent that vitiates coverage and justifies a permanent stay of arbitration (see Matter of New York Cent. Mut. Fire Ins. Co. v Daley, 273 AD2d 315; Matter of New York Cent. Mut. Fire Ins. Co. v Shepard, 249 AD2d 549).

For many years, New York has followed the rule that an insured's failure to provide timely notice of an accident relieves the carrier of its obligation to perform, regardless of whether it can demonstrate prejudice (see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 442-443). This has been known as the no-prejudice rule.

Recently, there has been a shift away from the no-prejudice rule. In Matter of Brandon Nationwide Mut. Ins. Co., (97 NY2d 491), the court required a Supplementary Uninsured/ Underinsured Motorists (hereinafter SUM) insurer to demonstrate prejudice when seeking to disclaim coverage based upon untimely notice of legal action. The court stated that, "under these circumstances, and given the protection SUM insurers already enjoy by virtue of the notice of claim requirement and the clauses governing settlement, insurers relying on the late notice of legal action defense should be required to demonstrate prejudice. We place the burden of proving prejudice on the insurer because it has the relevant information about its own claims-handling procedures and because the alternative approach would saddle the policyholder with the task of proving a negative" (id. at 498).

Since the issuance of the order and judgment appealed from, the Court of Appeals has reaffirmed this shift away from the no-prejudice rule. In Rekemeyer v State Farm Mut. Auto. Ins. Co. (4 NY3d 468, 474-476), the court stated,

"Plaintiff also urges this Court to relax its application of the no-prejudice rule in SUM cases where the carrier has been timely put on notice of the accident. This argument is persuasive. The rule in New York has been for years that an insured's failure to provide timely notice of an accident relieves the carrier of its obligation to perform regardless of whether it can demonstrate prejudice (see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 442-443 [1972]). This rule is known as the no-prejudice rule. Although this rule has sometimes been characterized as the traditional rule,' it is actually a limited exception to two established contract principles; (1) that ordinarily one seeking to escape the obligation to perform under a contract must demonstrate a material breach or prejudice; and (2) that a contractual duty [requiring strict compliance] ordinarily will not be construed as a condition precedent absent clear language showing that the parties intended to make it a condition' (Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576, 581 [citations omitted]). The idea behind strict compliance with the notice provision in an insurance contract was to protect the carrier against fraud or collusion (see id.)."

* * *

"The facts of the current case, while different from Brandon, also warrant a showing of prejudice by the carrier. Here, plaintiff gave timely notice of the accident and made a claim for no-fault benefits soon thereafter. That notice was sufficient to promote the valid policy objective of curbing fraud or collusion. Moreover, the record indicates that State Farm undertook an investigation of the accident. It also required plaintiff to undergo medical exams in December 1998 and February 2000. Under these circumstances, application of a rule that contravenes general contract principles is not justified. Absent a showing of prejudice, State Farm should not be entitled to a windfall (Brandon, 97 NY2d at 496 n. 3, citing Clementi v Nationwide Mut. Fire Ins. Co., 16 P3d 223, 230 [Colo. 2001]). Additionally, State Farm should bear the burden of establishing prejudice because it has the relevant information about its own claims-handling procedures and because the alternative approach would saddle the policyholder with the task of proving a negative' (id. at 498; see also Unigard, 79 NY2d at 584 [placing the burden of showing prejudice on the reinsurer])"

Recently, this court followed the Rekemeyer decision in Matter of State Farm Mut. Auto. Ins. Co. v Rinaldi (27 AD3d 476) and reversed an order granting the insurer's petition for a stay on the basis that the insurer had received timely notice of the accident and therefore was required to demonstrate prejudice. "Where, as here, an insured previously gives timely notice of the accident, the carrier must establish that it is prejudiced by a late notice of SUM claim before it may properly disclaim coverage' (Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 476). No such showing of prejudice was made by the carrier in this case" (Matter of State Farm Mut. Auto. Ins. Co. v. Rinaldi, supra at 476).

In the present case, the appellant argues that the notice of claim exception to the no-prejudice rule set forth by the court in Rekemeyer should now be extended to apply to proof of claim. We agree.

Here, the facts, as in Rekemeyer, warrant a showing of prejudice by the insurance carrier. The petitioner did not meet this burden of showing that the appellant's failure to comply with his contractual duties was prejudicial to it. Therefore, the petitioner was bound by its contractual duty to provide coverage for the appellant, and the court erred in granting the petition and permanently staying the arbitration.

The appellant's remaining contentions that the petitioner failed to timely disclaim coverage and that it waived its right to rely on the subject provision are improperly raised for the first time on appeal and we decline to consider them.

Natural Stone Industries, Inc., Utica National Assurance Company


Lustig & Brown, LLP, Buffalo, N.Y. (Jonathan Schapp of counsel),
for appellant.
Garcia & Stallone, Melville, N.Y. (Karl Zamurs of counsel), for
respondents.

 

DECISION & ORDER

In an action, inter alia, for a judgment declaring that the defendant Utica National Assurance Company is obligated to defend and indemnify the plaintiffs in two underlying personal injury actions entitled Karim v Natural Stone Indus., and Sattar v Natural Stone Indus., both pending in the Supreme Court, Queens County, under Index Nos. 6031/03 and 1241/02, respectively, the defendant Utica National Assurance Company appeals from an order of the Supreme Court, Queens County (Hart, J.), dated April 24, 2006, which denied its motion for summary judgment in its favor.

ORDERED that the order is reversed, on the law, with costs, the appellant's motion for summary judgment dismissing the complaint is granted, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the defendant Utica National Assurance Company is not obligated to defend and indemnify the plaintiffs in the two underlying personal injury actions entitled Karim v Natural Stone Indus. ,and Sattar v Natural Stone Indus., both pending in the Supreme Court, Queens County, under Index Nos. 6031/03 and 1241/02 respectively.

The defendant Utica National Assurance Company (hereinafter Utica) established its prima facie entitlement to summary judgment by demonstrating that it did not receive timely notice of the subject occurrence and properly disclaimed coverage (see Schoenig v North Sea Ins. Co., 28 AD3d 462, 463; Modern Cont. Constr. Co., Inc. v Giarola, 27 AD3d 431; Steinberg v Hermitage Ins. Co., 26 AD3d 426).

In response, the plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557). Contrary to the plaintiffs' contention, their notice of claim, made six months after the accident, was untimely as a matter of law (see Modern Cont. Constr. Co., Inc. v Giarola, supra at 433), and their belief that they could not legally be held liable for any damages sustained by the plaintiffs in the underlying personal injury actions was unreasonable as a matter of law (see Labor Law § 240; DiVincenzo v Plaza Farms Dev., 269 AD2d 842) despite an indication that they would not be sued (see E.B. Gen. Contr. v Nationwide Ins. Co., 189 AD2d 796; Platsky v Government Empls. Ins. Co., 181 AD2d 764). Accordingly, Utica's motion for summary should have been granted.

Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Queens County, for the entry of a judgment declaring that Utica is not obligated to defend and indemnify the plaintiffs in the underlying personal injury actions.

City of New York v. Zurich American Insurance Company



Melito & Adolfsen P.C., New York (S. Dwight Stephens of
counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Marta
Ross of counsel), for respondent.

 

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered July 22, 2005, which, to the extent appealed from as limited by the briefs, denied defendant's motion for renewal of its prior motion for summary judgment, and sua sponte declared defendant obligated to defend plaintiff in an underlying personal injury action as an additional insured under the subject policy and to reimburse plaintiff for litigation expenses, including reasonable attorneys' fees, affirmed, without costs.

The stipulation discontinuing the underlying personal injury claims against defendant's primary insured is not dispositive of defendant's duty to defend plaintiff as an additional insured under the policy. "[T]he duty of an insurer to defend is broader than its duty to indemnify" (Agoado Realty Corp. v United Intl. Ins. Co., 95 NY2d 141, 145 [2000]). While the stipulation upon which defendant relies precludes any further claim by the underlying plaintiffs against the insured contractor, it does not by its terms preclude a claim that plaintiff failed to properly inspect or supervise the work of the insured contractor. Nor does the stipulation or any other documentation submitted by defendant establish as a conceded or uncontested fact that the accident was unrelated to the contractor's work. Accordingly, defendant failed to establish a right to the relief it sought.

Based upon the submissions to the IAS court, the declaration that defendant is obligated to defend plaintiff in the underlying personal injury action was proper.

All concur except McGuire, J. who concurs in a separate memorandum as follows:
McGUIRE, J. (concurring)

I agree that the order appealed from should be affirmed but write separately to underscore that this appeal resolves only a narrow issue. Defendant insurer Zurich's sole argument on appeal is that the stipulation discontinuing with prejudice the underlying personal injury claims against its named insured, American Bridge Company, precludes any finding in the underlying action that plaintiff City's liability arose out of either American Bridge's work for the City or the City's supervision of that work. The City is an additional insured under the policy Zurich issued to American Bridge but only with respect to liability that so arises. Accordingly, maintaining that such a liability finding no longer can be made in the underlying action, by virtue of the stipulation, Zurich argues there can no longer be an indemnity obligation to the City under the policy. Thus, the issue that recently has divided this Court, whether a finding of liability in accordance with the terms of the additional insured endorsement in the underlying action is a condition precedent to the triggering of additional insured coverage (see BP Air Conditioning Corp. v One Beacon Ins. Group, 33 AD3d 116, 142 [Sullivan, J., dissenting] [2006], lv granted M-5078, 2006 NY Slip Op 82372[U] [Dec 21, 2006], 2006 NY App Div LEXIS 15960; Chelsea Assoc., LLC v Laquila-Pinnacle, 21 AD3d 739, 741 [Sullivan, J., dissenting] [2005], lv denied 6 NY3d 742 [2005]), is not before us.

As the City stresses, its answer in the underlying action asserted a cross claim for contribution and indemnification against American Bridge alleging that American Bridge was liable to the City if the City was liable to the plaintiffs. I agree that the stipulation of discontinuance does not bar either the plaintiff's direct claim against the City or the continued prosecution of the cross claim. In this regard, I note that Zurich does not raise any issue concerning the antisubrogation rule precluding an insured from seeking contribution or indemnification from another insured (see North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281, 294-296 [1993]).

Zurich's reliance on City of Niagara Falls v Merchants Ins.
Group
(34 AD3d 1263 [2006]), is misplaced. In that case, it appears that the order in the underlying action granting summary judgment to the named insured dismissed not only the complaint but also the cross claims asserted by the City, the party contending in the coverage action that it was an additional insured. Accordingly, that order was fatal to the City's position in the coverage action that it was an additional insured
(see Harriman Estates Dev. Corp. v General Acc. Ins. Co., 309 AD2d 575 [2003]).

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

 

 

Goncalves v. 515 Park Avenue Condominium



Mauro Goldberg & Lilling LLP, Great Neck (Richard J. Montes of counsel), for appellant.
Nicoletti Gonson Spinner & Owen LLP, New York (Edward S. Benson of counsel),

for respondent.

 

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered September 29, 2005, which, in an action for personal injuries sustained by a worker at a construction site, insofar as appealed from as limited by stipulation, granted second third-party defendant Woodworks Construction Company, Inc.'s motion for summary judgment dismissing second third-party plaintiff Hird Blaker, Inc.'s claim for contractual indemnification, unanimously affirmed, with costs.

The unsigned contract, denominated a purchase order, between subcontractor Hird and sub-subcontractor Woodworks, plaintiff's employer, specifically requires Woodworks to "receive, distribute and install all work" in accordance with the terms of the attached "trade subcontract" between Hird and the general contractor. We hold that this language does not incorporate the provisions of the trade subcontract relating to indemnification. "[I]ncorporation clauses in a construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to the scope, quality, character and manner of the work to be performed by the subcontractor" (see Bussanich v 310 E. 55th St. Tenants, 282 AD2d 243 [2001]). Nor is such incorporation accomplished by the portion of the "scope of work" clause of the trade subcontract requiring second-tier subcontractors like Woodworks to "maintain insurance equal to that required by this [sub]contract and be bound by the same terms and conditions as those of th[is] subcontract." Consistent with this reference in the trade subcontract to second-tier contractors, and separate from the above reference in the purchase order to the trade subcontract's requirements relating to the receipt, distribution and installation of work, the purchase order obligates Woodworks "to comply with . . . insurance coverage required by [the general contractor]," but, as there is no mention of indemnification and no reference to the trade subcontract, we hold that such obligation to obtain insurance does not entail an obligation to indemnify. While the purchase order is ambiguous in not setting forth the general contractor's "insurance coverage require[ments]," any such requirements clearly cannot be construed so broadly as to require Woodworks to provide indemnification other than in the insurance context, i.e., obtaining insurance naming the owner and other contractors as additional insureds (see generally Hooper Assoc. v AGS Computers, 74 NY2d 487, 491-492 [1989] [promise to indemnify should not be found unless clear]). Hird appears to concede that Woodworks obtained the required insurance. We have considered Hird's other arguments and find them unavailing.

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

 

 

State of New York v. Dennin



Calendar Date: February 21, 2007
Before: Mercure, J.P., Peters, Mugglin and Kane, JJ.


Dennin & Dennin, Lake Placid (Gregory M. Dennin
of counsel), for defendants and third-party plaintiffs-appellants.
Hiscock & Barclay, Albany (Daniel W. Coffey of
counsel), for third-party defendant-respondent.

MEMORANDUM AND ORDER


Mugglin, J.

Appeal from an order of the Supreme Court (Teresi, J.), entered June 6, 2006 in Albany County, which, inter alia, granted a motion by third-party defendant Michigan Millers Mutual Insurance Company for summary judgment dismissing the third-party complaint against it. [*2]

In a prior decision in which the facts are fully set forth (17 AD3d 744 [2005], lv dismissed 5 NY3d 824 [2005]), we determined that defendant Frederick S. Dennin (hereinafter defendant), as the owner of record of real estate in the Town of St. Armand, Essex County, on which a convenience store and gasoline station were located, retained sufficient control over the use of the premises through the terms of a land contract by which he was selling the property to impose liability on him for cleanup costs following a petroleum spill. Defendant and his daughter-in-law, defendant Margaret E. Dennin, commenced a third-party action against Michigan Millers Mutual Insurance Company, among others, seeking indemnification for any judgment awarded to plaintiff in the underlying action. Their claims are made pursuant to two policies issued by Michigan a homeowner's policy for defendant's personal residence in the Village of Lake Placid, Essex County, and a personal umbrella liability policy which provides excess coverage above amounts payable under the homeowner's policy and defendant's automobile policy. Michigan disclaimed coverage for several reasons, including (1) the convenience store/gas station was not an insured premises under either policy, (2) the policies neither afforded coverage for business pursuits nor for premises rented to others, (3) the policies excluded liability for damages caused by pollutants and (4) defendant failed to give Michigan timely notice of the discharge and failed to timely turn over the papers in the lawsuit. Supreme Court, persuaded by Michigan's arguments, granted summary judgment dismissing the third-party complaint against Michigan, prompting this appeal.

Michigan's policy excludes from its personal liability coverage bodily injury or property damages "[a]rising out of a premises [o]wned by an 'insured' that is not an 'insured location.'" Exclusions are subject to strict, narrow interpretation, and an insurer must demonstrate that the allegations of the pleading fall solely and entirely within the policy exclusion and are subject to no other interpretation (see Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131, 137 [2006]). Despite our previous decision, defendant continues to argue that he is not the "owner" of the convenience store/gas station. Although the policy does not define "owned," giving the word its ordinary meaning (see United Food Serv. v Fidelity & Cas. Co. of N.Y., 189 AD2d 74, 78 [1993]) results in no other conclusion than that defendant was the owner of the convenience store/gas station. Moreover, the convenience store/gas station does not fall within any of the eight definitions of the "insured location" in defendant's policy. The declarations page of his homeowner's policy lists only his residence at 90 Victor Herbert Road in Lake Placid as an "insured location." Defendant never advised Michigan that he had purchased the convenience store/gas station nor did he pay an additional premium for coverage of it. Also significant is that the contract vendee obtained her own insurance policy from Hartford Fire Insurance Company covering this property. Accordingly, Supreme Court appropriately found that this policy provided no coverage.

Defendant's personal umbrella liability policy, contrary to his contention, as herein relevant, only provides excess coverage over and above the limits of an underlying policy. As the underlying policy provides no coverage, coverage under the umbrella policy is not triggered. Moreover, the umbrella policy contains an express exclusion for damages to property on which a business is conducted. In view of these conclusions, Michigan's other arguments concerning exclusionary provisions and lack of timely notice are academic (see Maroney v New York Cent. Mut. Fire Ins. Co., 5 NY3d 467, 471 [2005]; Zandri Constr. Co. v Firemen's Ins. Co. of Newark, 81 AD2d 106, 109 [1981], affd 54 NY2d 999 [1981]).

Korson v. Preferred Mutual Insurance Company


Jacobowitz and Gubits, LLP, Walden, N.Y. (Peter R. Eriksen of
counsel), for appellant.
Eisenberg & Kirsch, Liberty, N.Y. (Jeffrey L. Kirsch and Jeffrey
Waite of counsel), for respondent.

 

DECISION & ORDER

In an action, inter alia, for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff in an action entitled Powell v Korson, pending in the Supreme Court, Orange County, under Index No. 0785/05, the plaintiff appeals from an order of the Supreme Court, Orange County (McGuirk, J.), dated March 1, 2006, which denied his motion, inter alia, for summary judgment with leave to renew upon the completion of discovery.

ORDERED that the order is affirmed, with costs.

The defendant issued a homeowner's insurance policy to the plaintiff and his brother, Dean Korson, who owned a residential building in which they both lived, albeit, according to the plaintiff, in different dwellings. During the policy period, the plaintiff and Dean were sued for bodily injury due to lead poisoning allegedly sustained by Aaliyah Powell while residing with Dean. Aaliyah's mother, Crystal Wise, who commenced the action on behalf of her daughter, is the daughter of Dean's wife, Brenda. Crystal is not Dean's daughter. Aaliyah is Dean's step-granddaughter and the plaintiff's step-grandniece.

The policy excludes from coverage "bodily injury to you, and if residents of your household, your relatives, and persons under the age of 21 in your care or in the care of your resident relative." Relying upon this exclusion, the defendant declined coverage. This action for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff in the underlying action ensued. The Supreme Court denied the plaintiff's motion for summary judgment on the ground that an issue of fact exists as to whether she resided with the plaintiff. We affirm.

The term "relative" is not defined in the policy. As a result, it must be construed consistently with its ordinary meaning, to include persons related by "close affinity, if not consanguinity," such as a step-parent and step-child (see Smith v Pennsylvania Gen. Ins. Co., 27 NY2d 830; Randolph v Nationwide Mut. Fire Ins. Co., 242 AD2d 889, 889-90). Whether the plaintiff is bound by such bonds of affinity to his step-niece or step-grandniece, however, is an issue that we need not address, since the exclusion extends, by its terms, to persons under the age of 21 in the care of a resident relative. It is undisputed that Aaliyah was under the age of 21 and that the plaintiff's brother, Dean, is a relative of the plaintiff. Thus, in order to prevail on his motion for summary judgment, the plaintiff was required to establish either that Aaliyah was not in Dean's care, i.e, that Dean had not assumed any responsibility for her (see Pettengill v Welsh, 54 NY2d 917; New York Cent. Mut. Fire Ins. Co. v Sweet, 16 AD3d 1013, 1014), or that Dean did not reside with the plaintiff. The moving papers established neither.

Even if the plaintiff made a showing sufficient to establish his entitlement to judgment as a matter of law, however, the Supreme Court correctly concluded that the defendant was entitled to the opportunity to conduct discovery before summary judgment could be granted to the plaintiff, particularly since the defendant did not have a reasonable opportunity for disclosure prior to the making of the motion, despite its efforts to investigate (see CPLR 3212[f]; Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636, 637; Urcan v Cocarelli, 234 AD2d 537; Baron v Incorporated Vil. of Freeport, 143 AD2d 792, 792-793).
In light of our determination, we need not consider the parties' remaining contentions.
MILLER, J.P., SPOLZINO, RITTER and DILLON, JJ., concur.