Coverage Pointers - Volume VIII, No. 21

Dear Cover Pointers Subscribers:

 

Greetings from sunny San Diego (the hour hand hasn't hit 6:00 AM), where the Association of Defense Trial Attorneys annual meeting is in full swing.  It's nice to be away from home where the ice on Lake Erie is slowly heading up the river to Niagara Falls and spring promises to arrive before July.

 

Another blockbuster issue of Coverage Pointers comes your way with over 25 mouth-watering New York insurance coverage decisions having been rendered by our appellate courts since our most recent issue two weeks ago.

 

The two most significant cases in this edition are surely worth reading and each involves late notice.  The Ace Packing case is a well-reasoned (a term meaning we agree with it) decision holding that an insurer is allowed to conduct an investigation before it denies coverage for late notice.  The liability carrier took many months before it denied coverage, because the insured refused to cooperate.  Like the child who kills his parents and cries about being an orphan, the insured complained that insurer should not be allowed to disclaim months later, even though the insured was to blame for the delay.  The court, wisely, sided with the insurer.

 

In the New York Central case, there was yet another expansion of the "carrier must show prejudice to deny SUM coverage rule" established by the Court of Appeals in Rekemeyer a couple of years back.  Rekemeyer, as so many will recall, held that an underinsured motorists carrier that handled a no fault claim had to demonstrate prejudice before walking away from a late claim for underinsured benefits (since the carrier had knowledge of the injuries and claim from the no fault file).  In the decision reported in this issue, the Second Department held that the rule applies not only to underinsured benefit claims but to uninsured motorist benefit claims as well.

 

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

 

I hope everyone on the East Coast survived the Nor'easter without any bodily injury or property damage.  Our receptionist's husband braved the conditions and finished the Boston Marathon.  I was thrilled to return to my home on Monday, April 17th, from work to find at least six inches of fresh snow in my driveway.  Yeah!  Did I mention it was Monday, April 17th???   However, my spirits were lifted later in the week when the Sabres won yet another game in the series against the New York Islanders.

 

All is VERY quiet in the litigation world.  After last edition, with so many decisions from the Appellate Term of the Second Department on the issue of plaintiff's prima facie case I thought for sure there would be just as many in this edition.  Yet, I could not find one that was reported.  As always though the arbitration world is alive and active. 

 

Again, please keep us in mind for some Spring Training.  Perhaps you and/or your department could use some updates on drafting a denial of claim or what the current case law provides regarding the sufficiency of an IME or peer review report.  As always, we tailor our training sessions to your needs and requests. 

 

There is an interesting collection of SUM (uninsured and underinsured) opinions in this batch including a rare NY bad faith/extra-contractual liability case and a trilogy of opinions where insured's counsel unsuccessful tries to allege that someone should be responsible for his failure to purchase the right coverage. 

 

• Grave Injury:  How Much Loss of Use of the Index Finger is a Loss of an Index Finger? 
• Where Liability Policy of Injured and Liability Policy of Tortfeasor are Equal, SUM Policy Not Triggered for Underinsurance Coverage.  In Any Event, Receipt of $50,000 in Liability Limits from Tortfeasor Would Reduce SUM Coverage (in This Case) to Zero
• Listing of Father in Renewal Notice as "Only Authorized Driver" Does Not Make Father Named Insured Under Policy.  Since Father was Not a Resident of the Named Insured's Household, Son Who Lives With Father (and Not Named Insured) Cannot Secure UM Coverage Under Named Insured's Policy
• Insured May Seek "Foreseeable" Extra-Contractual Damages for a Breach of Duty to Handle Files in "Good Faith"
• Even Though Insurance Fraud Claim Against Insured Eventually Dismissed, Insurer Not Liable for Malicious Prosecution
• Case Within the Case: Legal Malpractice Established for Failing to Commence First Party Action within Shortened Time Period in Policy
• Carrier Who is Handling No Fault Claim Must Demonstrate Prejudice to Deny Coverage to Same Uninsured Motorist Claimant Who Fails to Advise of Potential UM Claim
• Carrier had No Duty to Advise Insured to Buy Other Coverage
• OK, If Not Carrier, How About Broker?  Can it be Held Liable for Not Securing Additional Insurance Coverage?
• Good Things Come in Three.  Let's Try This ONE More Time
• Disclaim Now and Investigate Later?  Hogwash.
• Carrier of Non-resident Insured Subject to NY Arbitration Requirements for Uninsured Motorists Coverage, Even Though Policy Doesn't Say So - First Department Splits with Second
• Texas Rehabilitation Order Honored in NY Courts

 

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

 

• No Notaries, No Worries: Affidavits Still Valid With Notary Signature on Separate Page
• Errors in Jury Charges Lead to Reversal of Verdict in Rear-End Accident Case
• Address Plaintiff's Allegations or Else: Defendants' Summary Judgment Motion is Denied
• To the Point: Plaintiff Survives Summary Judgment by Raising Triable Issue of Fact
• Another Reversal: This Time Defendant Prevails on Appeal
• 5-Year Treatment Gap and Mere Existence of Herniated Discs Sinks Plaintiffs' Case
• A Fracture is a Serious Injury but Plaintiff Must Allow Defendants an Examination
• Second Bite at the Apple: Plaintiff Gets New Trial By Showing Jury Verdict was Against the Weight of the Evidence
• Failure to Note Any Range of Motion Limitations Dooms Plaintiff's Chances for Success 

 

Audrey's Angle on No-Fault

Audrey Seeley

[email protected]

           

·        Peer Review Not Required to Be Attached as Denial Wording Included Peer Review

·        Chiropractic Care Not Warranted with Evidence of Prior Active Treatment for Same Injury at Time of Accident

·        Multiple Independent Medical Examinations Conducted on the Same Day, Nearly One Year Post Accident Persuasive on Issue of Medical Necessity.

 

 

Be well and root for warm weather.  If it doesn't come, I'm staying in San Diego.

 

Dan

 

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

 

4/17/07            Castillo v. 711 Group, Inc

Appellate Division, Second Department

Grave Injury:  How Much Loss of Use of the Index Finger is a Loss of an Index Finger? 
Under New York law, an injured worker’s employer cannot become a party in a lawsuit, as a third party defendant, unless one of two situations is presented: (a) the employer is contractually (or otherwise) bound to indemnify another party or (b) the injured worker has suffered a “grave injury.”  One of the categories of “grave injury” is “loss of an index finger” and this case considered a matter involving loss use of most of the index finger is “loss of an index finger” so as to constitute a “grave injury.”  This court has previously held hat loss of half the index finger is insufficient to establish "grave injury”. In that case, the plaintiff's index finger was amputated at the base of the middle phalanx, leaving him with a proximal interphalangeal joint. In another previous case, this court held that a partial amputation of the index finger to the level of the proximal interphalangeal joint did not constitute loss of the index finger. In the instant case, the plaintiff has lost both interphalangeal joints of the index finger. The court concluded that loss of use of that much of the index finger is, in fact loss of his index finger.

 

4/17/07            In the Matter of Government Employees Insurance Company v. Young

Appellate Division, Second Department
Where Liability Policy of Injured and Liability Policy of Tortfeasor are Equal, SUM Policy Not Triggered for Underinsurance Coverage.  In Any Event, Receipt of $50,000 in Liability Limits from Tortfeasor Would Reduce SUM Coverage (in This Case) to Zero

On June 25, 2000, the injured party was involved in a car accident with a vehicle insured by Infinity Insurance.  The injured party settled with Infinity for $50,000, the limits of the Infinity policy and then made a demand for SUM (underinsurance) benefits to GEICO under a policy issued to non-party Young. The SUM endorsement of the GEICO policy was written with a single policy limit for uninsured/underinsured motorist of $25,000/$50,000 for each person/each occurrence. The GEICO policy limits for bodily injury liability were also in those amounts.

The SUM endorsement had the regulatory “offset” provisions under which GEICO properly offset the $50,000 received from Infinity thereby not entitling the injured party to recover any SUM coverage.  Moreover, there was no trigger of coverage (which should be examined first) because the liability policy issued by Infinity was equal to the liability limits of the GEICO policy.

4/17/07            In the Matter of State Farm Mutual Insurance Company v. Russell
Appellate Division, Second Department
List of Father in Renewal Notice as “Only Authorized Driver” Does Not Make Father Named Insured Under Policy.  Since Father was Not a Resident of the Named Insured’s Household, Son Who Lives With Father (and Not Named Insured) Cannot Secure UM Coverage Under Named Insured’s Policy
State Farm issued an auto policy to Esmie Robinson, with an Miller Avenue address in Brooklyn.  The policy’s declaration page covers Donovan Russell, Esmie’s brother for “death, dismemberment and loss of sight.”  Donovan is Keon Russell’s father and the Russell’s live in Brooklyn, but not with Robinson. A renewal letter issued to Robinson indicated that Donovan was only licensed driver reported to State Farm.

The policy also contained a New York State uninsured motorist endorsement (hereinafter the UM coverage), which defined an insured as:

"1. You, as the named insured and, while residents of the same household, your spouse and the relatives of either you or your spouse; (2) Any other person while occupying: (i) A motor vehicle owned by the named insured or, if the named insured is an individual, such spouse . . . or (ii) Any other motor vehicle while being operated by the named insured or such spouse."

Question in the case is whether Keon is considered an insured for purposes of making a claim under the policy for uninsured motorist benefits as Keon was injured in an accident with an uninsured car driven by one Authurs. While the renewal notice listed Donovan as the only licensed driver reported to it, the policy itself did not. It listed Robinson as the only insured and since neither Keon nor Donovan resided with Robinson, they were not eligible to secure UM benefits from the policy. That Donovan was concededly an insured for the death and dismemberment benefits doesn’t change the paradigm.

4/17/07            Panasia Estates, Inc. v. Hudson Insurance Company

Appellate Division, First Department
Insured May Seek “Foreseeable” Extra-Contractual Damages for a Breach of Duty to Handle Files in “Good Faith”

An insured may recover foreseeable damages, beyond the limits of its policy, for breach of a duty to investigate, bargain for and settle claims in good faith and the complaint was properly before the court.  No clue here what specific “bad faith” conduct was alleged or suggested by Court refused to strike the claim in the complaint.

 

4/17/07            Arzeno v. Mack and Travelers Casualty Company

Appellate Division, First Department
Even Though Insurance Fraud Claim Against Insured Eventually Dismissed, Insurer Not Liable for Malicious Prosecution

This is an action for false arrest and malicious prosecution. Although an indictment charging plaintiffs with insurance fraud and offering false instruments for filing was ultimately dismissed, probable cause existed for their arrest and prosecution based on extensive investigation, including forensic tests of the vehicle's ignition cylinder. Probable cause and a lack of evidence of malice. constituted a complete defense to a claim of false arrest, under both state and federal standards

 

4/12/07            Bergin v. Grace

Appellate Division, Third Department

Case Within the Case: Legal Malpractice Established for Failing to Commence First Party Action within Shortened Time Period in Policy

After insurer was successful in getting first party action against it dismissed for failure to timely sue the company, plaintiff was successful in suing the attorney for failure to bring a timely lawsuit on its behalf.  The lawyer did not dispute that the insurance policy contained a provision limiting the time to commence suit to one year and that the provision was properly construed to conform to the two-year statutory minimum period.  He believed that the six-year limitations period for contractual claims applied (see CPLR 213), was not aware of the potential for a contractual statute of limitations being incorporated within the policy itself and learned of the two-year contractual limitations period only upon service of the insurer's answer. That excuse did not provide a defense to a legal malpractice suit.

 

4/10/07            In the Matter of New York Central Mutual Ins. Co. v. Davalos and Allstate

Appellate Division, Second Department
Carrier Who is Handling No Fault Claim Must Demonstrate Prejudice to Deny Coverage to Same Uninsured Motorist Claimant Who Fails to Advise of Potential UM Claim
Appeal of reargument of an application to permanently stay uninsured motorist arbitration.  The lower court property concluded that the failure of the insured to give notice of his claim for SUM benefits “as soon as practicable” as required by the SUM endorsement will not lead to a loss of coverage unless the insurer is prejudiced (where the same insured has a pending no-fault claim with the same carrier).  The Court of Appeals has previously so held in Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468.  Carrier argued that Rekemeyer should only apply to underinsured motorist claims but court found it equally applicable to claims for uninsured motorists benefits. However, the court should have added the insurer of the offending vehicle as a party respondent.  That carrier, identified in the police report, should be given the opportunity to establish that it validly denied coverage.

 

4/10/07            Fremont Realty, Inc., v. P & N Iron Works, Inc. and Zurich  
Appellate Division, Second Department
Carrier had No Duty to Advise Insured to Buy Other Coverage
Zurich issued a particular insurance policy to the insured and is then sued for failing to advise the insured to obtain other coverage.  Insurer has no such duty to advise an insured plaintiff to obtain certain additional insurance coverage so judgment granted in favor of insurer.

 

But, read on …

 

4/10/07            Fremont Realty, Inc. v. P & N Iron Works, Inc., and USI Securities, Inc.
Appellate Division, Second Department
OK, If Not Carrier, How About Broker?  Can it be Held Liable for Not Securing Additional Insurance Coverage?
Same battle as previous case except now the defendant is the insured’s insurance broker, USI.  USI wins as well.  It demonstrated that insured did not specifically request that it secure additional insurance coverage and that it did not have the kind of “special relationship” with the insured that would have required it to advise the plaintiff to obtain that coverage.

 

But, read on …

 

4/10/07            JKT Construction, Inc. v. United States Liability Insurance Group
Appellate Division, Second Department
Good Things Come in Three.  Let’s Try This ONE More Time
An insurance agent or broker has a common-law duty to obtain requested coverage for a client within a reasonable amount of time or to inform the client of the inability to do so. Without a specific request for coverage, and in the absence of a “special relationship” with the insured, agent or broker has no continuing duty to advise, guide, or direct a client to obtain additional coverage. Here, broker obtained coverage insured requested and an exclusionary clause insured wanted was not available at the time, anyway.

 

Editors Note:  As Kurt Vonnegut (who passed away on Wednesday, April 11) said so often in Slaughterhouse-Five:  “And so it goes.”

 

4/10/07            Ace Packing Co. Inc. v. Campbell Solberg Associates, Inc.
Appellate Division, First Department
Disclaim Now and Investigate Later?  Hogwash.
When insurer received notice of incident and lawsuit, it attempted to contact the insured to conduct an investigation.  Insured refused to cooperate for several weeks.  When reminded of its obligation to do so under the cooperation clause of the policy, insurer promptly completed its investigation and then denied coverage.  “Aha,” cried the insured.  “You didn’t disclaim right away, so it’s too late.”  “Wrongo,” says the wise court.  The fact that this inquiry took 38 instead of 8 days to complete was due entirely to plaintiff's refusal to cooperate with the adjuster in its investigation. A carrier is entitled to conduct an investigation and is not obligated (and should not) engage in knee-jerk denials of coverage without completing an investigation.  Here, the insured refused to sign a non-waive.

 

4/10/07            In re National Grange Mutual Insurance Company v. Hing Wa Louie

Appellate Division, First Department
Carrier of Non-resident Insured Subject to NY Arbitration Requirements for Uninsured Motorists Coverage, Even Though Policy Doesn’t Say So – First Department Splits with Second
Connecticut resident driving Connecticut-registered and insured car, involved in Bronx accident with an uninsured car registered to, owned and operated by a New Jersey resident. Since the accident occurred in New York State and resident notified National Grange of his intention to pursue arbitration in connection with his uninsured motorist benefits (see Insurance Law § 5106[b]). Carrier sought to stay arbitration on ground that policy and Connecticut law. Petitioner thereupon commenced this proceeding to stay arbitration on the ground that respondent is not entitled to such arbitration under the relevant policy and Connecticut law.

Court finds that NY arbitration requirement, compelled by statute, is imposed on auto carriers when their non-resident insureds are driving cars in NY.  Court disagrees with Second Department which ruled otherwise several years ago. State Farm Mut. Auto. Ins. Co. v Torcivia, 277 AD2d 321 [2000].

4/10/07            A.J. Pegno Construction Corp. v. Highlands Insurance Company 

Appellate Division, First Department
Texas Rehabilitation Order Honored in NY Courts

The New York courts will honor a Texas insurance rehabilitation order that required any claim against an insolvent carrier to be prosecuted through receiver in Texas, where carrier does work in all 50 states.  That order also restrained other litigation against insurer from going forward.  That’s what “full faith and credit” is all about.

 

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

 

4/19/07            Engles v. Claude

Appellate Division, First Department

No Notaries, No Worries: Affidavits Still Valid with Notary Signature on Separate Page

Appellate Division continues recent trend of reversing orders which had granted defendants’ summary judgment motions. Here, the affidavits of plaintiff’s experts are not defective simply because the notary’s signature and seal appear on a separate page following the deponents’ respective signatures (cf. Collins v AA Trucking Renting Corp., 209 AD2d 363 [1994]), and the positive MRI findings should have been considered, although unsworn, because they were reviewed by defendants’ expert orthopedist in reaching his opinion (see Thompson v Abbasi, 15 AD3d 95, 97 [2005]). Issues of fact as to whether plaintiff sustained serious injuries within the meaning of Insurance Law § 5102(d) are raised by her experts’ opinions that, as a result of the accident, she sustained a torn meniscus of the right knee that will require arthroscopic surgery, tendinosis of the right shoulder, and has been unable to return to work as a traffic control officer because of an inability to stand for long periods of time or lift her right arm above the head.  

 

 

4/19/07            Anderson v Dainack

Appellate Division, Third Department

Errors in Jury Charges Lead to Reversal of Verdict in Rear-End Accident Case

In a lengthy opinion the Third Department reversed a judgment involving a rear-end motor vehicle accident case. Summary judgment was awarded on the issue of liability, requiring a trial on the issues of injury and damages. The jury had determined that plaintiff had not sustained a significant limitation of use of a body function or system, but had suffered a permanent consequential limitation of the use of a body organ or member, resulting in an award for both past and future pain and suffering in the amount of $85,000. Defendant appealed and Judgment was reversed.

 

At issue was the Supreme Court’s preclusion of photographs and testimony concerning the condition of the vehicles after the accident due to possible prejudice by the jury against plaintiff was within its discretionary authority (see Saulpaugh v Krafte, 5 AD3d 934, 934-935 [2004], lv denied 3 NY3d 610 [2004]). However, we have stated that even when liability is not at issue, “proof as to the happening of an accident is probative and admissible as it describes the force of an impact or other incident that would help in determining the nature or extent of injuries and thus relate to the question of damages.” While we would encourage a trial court to allow such photographs and testimony and then instruct the jury that the absence of damage would not preclude the possibility that plaintiff sustained an injury, where, as here, defendants were permitted to elicit testimony that the vehicles were a very short distance apart between one and eight feet and that defendant’s car slowly rolled into plaintiff's car, we find no error.

 

Further, while the Appellate Division fail to find any merit to defendants’ contention that plaintiff did not prove that she sustained a serious injury under Insurance Law § 5102 (see Pommells v Perez, 4 NY3d 566, 567 [2005]) to support both the expert testimony and the jury’s verdict (see Toure v Avis Rent a Car Sys., 98 NY2d 345, 350-358 [2002]; Pianka v Pereira, 24 AD3d 1084, 1085-1086 [2005]; Martin v Fitzpatrick, 19 AD3d 954, 956-957 [2005]), “we are constrained to reverse based upon errors in Supreme Court’s charge to the jury. Supreme Court charged the jury regarding the aggravation of a preexisting injury and the increased susceptibility to injury based upon testimony that plaintiff suffered from spinal stenosis before the accident. It is settled that damages may be recovered if such theories are ‘specially pleaded and proved.’ Here, however, plaintiff neither asserted an aggravation of a preexisting injury or an increased susceptibility to injury in her complaint, bill of particulars, or amended bill of particulars.”

 

 

4/17/07            Chicas v. Catalano

Appellate Division, Second Department

Address Plaintiff’s Allegations or Else: Defendants’ Summary Judgment Motion is Denied

Here, plaintiffs appeal from an order which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d). However, the Appellate Division held the defendant failed to make a prima facie showing that neither of the plaintiffs sustained a serious injury. The defendant’s moving papers failed to address the allegations made by each of the plaintiffs, as contained in their bill of particulars, that as a result of the accident they each sustained an injury which prevented them from performing substantially all of the material acts which constituted their usual and customary daily activity for a period of not less than 90 days during the 180 days immediately following the accident. Since the defendant failed to establish her prima facie entitlement to judgment as a matter of law in the first instance, it became unnecessary to reach the question of whether the plaintiffs’ papers were sufficient to raise a triable issue of fact.

 

4/17/07            Braun v Melia

Appellate Division, Second Department

To the Point: Plaintiff Survives Summary Judgment by Raising Triable Issue of Fact

Here, the plaintiff appeals from an order which granted the defendants’ cross motion 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). Appellate Davison held that the defendants established prima facie that the plaintiff did not sustain a serious injury from the subject accident. However, in opposition, the plaintiff raised an issue of fact. Accordingly, the Supreme Court should have denied the defendants’ cross motion for summary judgment dismissing the complaint.

 

4/17/07            Phillips v. Zilinsky

Appellate Division, Second Department

Another Reversal: This Time Defendant Prevails on Appeal

Defendant appealed order denying its motion for summary judgment. The defendant made 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. In opposition, the affirmed medical reports of the plaintiff’s treating orthopedic surgeon did not raise a triable issue of fact.

 

Initially, in her most recent examination of the plaintiff, the orthopedic surgeon concluded that the limitations noted in cervical and lumbar spine range of motion, as well as the disc bulges noted in the plaintiff’s MRI reports, were caused by the subject accident. However, these conclusions were speculative as she did not address in her most recent report the findings contained in the report of the defendant’s examining radiologist that the disc bulges in the plaintiff's cervical and lumbar spine were the result of pre-existing degenerative processes and not the subject accident. Moreover, it is clear that she improperly relied upon unsworn MRI reports of the plaintiff’s cervical and lumbar spine in coming to her diagnosis in her most recent report.

 

4/17/07            Waring v. Guirguis

Appellate Division, Second Department

5-Year Treatment Gap and Mere Existence of Herniated Discs Sinks Plaintiffs’ Case Defendants appeal order denying their motion for summary judgment dismissing the complaint. Upon appeal, the motion for summary judgment is granted. In the underlying action, plaintiffs allege that certain medical records demonstrate that they both suffered from bulging and/or herniated discs and that as a result, their ranges of motion are so substantially impaired as to constitute serious injuries.

However, the mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration. The defendants made a prima facie showing that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident. In opposition, the plaintiffs failed to raise a triable issue of fact. Neither the affidavit of the plaintiffs’ examining chiropractor nor the plaintiffs’ affidavits adequately explain the five-year gap in medical treatment.

4/10/07            Grande v. Peteroy

Appellate Division, Second Department

A Fracture is a Serious Injury but Plaintiff Must Allow Defendants an Examination

In a lengthy opinion the Second Department modified a lower court order which had previously granted plaintiff summary judgment on the threshold issue of serious injury on the ground that a fracture constitutes a serious injury. Defendants had previously filed motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

In response, the plaintiff cross-moved for leave to amend her bill of particulars to add a tibial fracture of the leg as one of the injuries she sustained in the accident and for summary judgment.

 

The Court held that leave to amend a bill of particulars is freely given absent prejudice or surprise, unless the amendment is sought on the eve of trial. In the instant case, there is no evidence that the amendment was sought on the eve of trial. Thus, that branch was granted by the lower court. However, plaintiff’s cross motion for summary judgment was filed more than the 60 days after the filing of the note of issue, which was in violation of the scheduling order. Yet an untimely motion or cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds. In such circumstances, the issues raised by the untimely motion or cross motion are already properly before the court and thus, the nearly identical nature of the grounds may provide the requisite good cause (see CPLR 3212[a]) to review the untimely motion or cross motion on the merits.

 

However, the Court held: “summary judgment should have been denied to the plaintiff since the defendants had no opportunity to examine the plaintiff and determine for themselves whether a fracture indeed was present (see CPLR 3212[f]), causally related to the accident, and had no opportunity to submit an affidavit in opposition to that branch of the plaintiff’s cross motion which was for summary judgment on the issue of serious injury.”

 

4/10/07            Scudera v Mahbubur

Appellate Division, Second Department

Second Bite at the Apple: Plaintiff Gets New Trial By Showing Jury Verdict was Against the Weight of the Evidence

Here, plaintiff appeals jury verdict which stated he did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and upon the denial of his motion pursuant to CPLR 4404 to set aside the jury verdict as against the weight of the evidence. The judgment was reversed, on the law, the complaint was reinstated, the motion was granted, and a new trial was granted.

 

To set aside a jury verdict as against the weight of the evidence, it must be concluded that the evidence so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence. At trial, the plaintiff's treating neurologist testified that the plaintiff sustained a herniated disc at the L5-S1 level. The herniated disc was repeatedly documented by three MRI studies taken over a period of more than four years. The defendant’s examining neurologist acknowledged the presence of the disc herniation too. According to plaintiff's treating neurologist, further objective evidence of the plaintiff's nerve damage as a result of compression on the nerve root included sensory loss, decreased ankle jerk and weakness, and atrophy of the left leg. She also testified that plaintiff’s range of motion was significantly limited. Thus, the Court held the plaintiff provided the requisite objective evidence of the extent or degree of limitation and its duration. Under these circumstances, the verdict in favor of the defendants could not have been reached on any fair interpretation of the evidence.

 

4/10/07            Porto v Blum

Appellate Division, Second Department

Failure to Note Any Range of Motion Limitations Dooms Plaintiff’s Chances for Success

Appellate Division modified lower court order which had previously dismissed defendants’ summary judgment motion. Upon review, the defendants’ evidence was sufficient to establish, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). In reply, the plaintiff failed to raise a triable issue of fact as to whether he sustained a serious injury. The affidavit of his treating physician failed to note any range of motion limitations in the plaintiff's left shoulder and lumbar spine. Further, the plaintiff's physician improperly relied upon the unsworn MRI report of another physician and failed to set forth the objective medical tests utilized at his most recent examination of the plaintiff that led him to determine that the plaintiff sustained limitations of motion in his left shoulder.

 

 

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

 

 

4/16/07            In the Matter of the Arbitration between the Applicant and Respondent

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

Peer Review Not Required to Be Attached as Denial Wording Included Peer Review.

 

Here is the Angle:  The Applicant, using downstate case law, could not successfully argue that the insurer’s denial was insufficient since the peer review report, upon which the denial was based, was not attached.  Rather, the denial itself contained almost word for word the entire peer review report which the Arbitrator held could not be said to have been devoid of a factual basis for the denial.  Accordingly, the fact that the peer review report was not attached did not make the denial ineffective.

 

The Analysis:  Here, the Applicant sought reimbursement for a digital motion x-ray and MRI.  The insurer denied the claims based upon peer reviews conducted by Robert Costello, D.C. on the basis that they were not medically necessary. 

  

Mr. Costello opined that there was no documentation of a differential diagnosis and no indication of a diagnostic dilemma to warrant the digital motion x-ray.  Further, with respect to the MRI, Mr. Costello opined that these studies are normally reserved for patients who have a markedly abnormal physical examination or unrelenting symptoms, as well as are recommended surgical intervention.  Arbitrator McCorry notes that in prior cases he has found those same arguments Mr. Costello set for to be persuasive.

 

Here, the Applicant argued that the insurer failed to provide a copy of Mr. Costello’s peer review even though requested which equated to failure to establish the testing was not medically necessary.  Also, Applicant, relying upon Alliance Med. Office v. Allstate Ins. Co., 196 Misc2d 268, argued that “the treating physician’s decision as to what tests were appropriate should not be subject to a ‘second guess’ by a Peer Review Doctor, who never actually saw the patient.”

 

Arbitrator McCorry rejected these arguments.  Initially, he pointed out that in this case a chiropractor was ordering expensive, questionable diagnostic tests for a soft tissue spinal injury.  He further notes that had a physician, such as an orthopedic surgeon ordered the testing perhaps this argument would have merit.

 

Finally, Arbitrator McCorry, while recognizing a number of recent cases (we note downstate decisions) which held that a peer review must be attached to the denial, held here that the denial wording was sufficient since it included almost word for word the entire peer review report. 

 

4/16/07            In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator MaryAnne Theiss, Esq. (Onondaga County)                

Chiropractic Care Not Warranted with Evidence of Prior Active Treatment for Same Injury at Time of Accident.

 

Here is the Angle:  The Applicant was involved in a 1997 motor vehicle accident and actively treatment with a chiropractor for his neck up until the time of his 1999 motor vehicle accident, which was the subject of this arbitration.  Not surprisingly, the Applicant sustained a neck injury and continued his chiropractic treatment.  The insurer learned this information during an independent medical examination and promptly denied the claim.  Unfortunately, the insurer decided to make the denial retroactive.  Accordingly, Arbitrator Theiss made the insurer pay for the service dates that were improperly retroactively denied but upheld the remainder of the denial.

 

The Analysis:  The issue here was whether the insurer’s denial of chiropractic benefits based upon an independent medical examination was justified.  Arbitrator Theiss held that the denial was justified.

 

On January 13, 1999, the Applicant, eligible injured person, was struck by a small pickup truck while walking on the shoulder of the road.  The truck’s passenger mirror struck Applicant in the back allegedly throwing him 20 feet into the ditch.  Surprisingly, the Applicant only sustained scratches to his face but did commence a course of chiropractic treatment for his neck twice a week.  The Applicant also treated with a massage therapist in the same office.

 

Interestingly, it was discovered that Applicant was involved in a 1997 motor vehicle accident wherein he sustained a neck injury warranting chiropractic treatment, which Applicant’s current chiropractor.  Furthermore, the Applicant had been actively treating with his current chiropractor for neck pain right up until the 1999 motor vehicle accident.

 

It is noted that the insurer here retroactively denied the Applicant chiropractic treatment which Arbitrator Theiss found to be completely inappropriate and awarded those treatment dates.  However, Arbitrator Thiess held that from the time of the retroactive denial period forward the denial of chiropractic treatment was appropriate and justified. 

 

 

4/13/07            In the Matter of the Arbitration between the Applicant and Respondent

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

Multiple Independent Medical Examinations Conducted on the Same Day, Nearly One Year Post Accident Persuasive on Issue of Medical Necessity.

 

Here is the Angle:  This was an interesting arbitration that I argued where the insurer conducted three independent medical examinations on the same day with an orthopedist, neurologist, and chiropractor.  The physicians and chiropractor can to same conclusion – resolved cervical and lumbar spine sprain with no disability from working or performing daily activities.

 

The Analysis:  On November 5, 2005, the Applicant, eligible injured person, was involved in a taxicab – deer accident.  A few days after the accident, the Applicant sought treatment at a health center.  Thereafter, she began chiropractic care and eventually came under the care of Physiatrist, Andrew Matteliano, M.D.  Dr. Matteliano diagnosed Applicant with neck and back flexion/extension injury.

 

On July 26, 2006, Applicant under three independent medical examinations – an orthopedic, neurological, and chiropractic.  With respect to every specialty the physicians and chiropractor concluded that Applicant had a resolved cervical and lumbar spine sprain.  Further, the Applicant was not disabled from working and could return to her activities of daily living without restriction.

 

Arbitrator McCorry found all three evaluations to be persuasive and denied Applicant’s claim. 

 

 

 

 

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 serves as the FDCC’s President and Website Editor Emeritus.

 

4/10/2007        Wade v. Emcasco Ins. Co.
Tenth Circuit Court of Appeals

Insurer Not Liable for Bad Faith for Delay in Accepting Settlement Offer When Delay was Due to Actions of Plaintiff and his Attorney
 Appellant and insured Jerry L. Wade (“Wade”) was involved in an automobile accident wherein appellant Ninh Nguyen (“Nguyen”) was severely injured. Nguyen’s attorney contacted Wade’s insurer, Emcasco Insurance Company (“Emcasco”), in March 2001 and notified it that Nguyen’s damages would exceed the $100,000 policy limits. Emcasco then received Nguyen’s medical records from Nguyen’s attorney, with an offer to “settle all claims against [the] insured for prompt payment of [the] insured’s policy limits.” Nguyen’s attorney further promised to send additional medical records when received, and did so on May 12, 2001, when he also advised that the policy limits settlement offer would be withdrawn on June 15, 2001. At this time, however, records from Nguyen’s initial two-week hospital stay were not included with the records sent to Emcasco. Although Nguyen’s attorney received the records on June 28, 2001, he did not forward them to Emcasco until four months later. In October 2001, Wade’s attorney sent Nguyen’s attorney medical releases to obtain the missing medical records in an attempt to confirm the cause of Nguyen’s injuries. Nguyen’s attorney returned the releases to Wade’s attorney. However, he, and not Nguyen, had signed them and the hospital would not accept them as lawful releases. Nguyen’s attorney then informed Wade’s attorney that he had the missing medical records, which he would send. Once the missing records were received, Emcasco immediately authorized a settlement offer for the policy limit. Nguyen’s attorney rejected the offer, however, and stated that he would instead seek extra-contractual damages for Emcasco’s alleged bad faith. Wade then confessed judgment in the amount of $3,150,000 and assigned his rights for any bad faith claim to Nguyen. Nguyen then sued Emcasco for breach of the duty of good faith owed to Wade, and Wade joined as real party in interest. The district court granted Emcasco’s motion for summary judgment and the Tenth Circuit affirmed. Noting that plaintiff was alleging delay, and not refusal, in accepting a settlement offer, the court reasoned it should be cautious to “avoid creating the incentive to manufacture bad faith claims by shortening the length of the settlement offer, which starving the insurer of the information needed to make a fair appraisal of the case.” The court further noted that plaintiff bore the brunt of the responsibility for Emcasco’s lack of information regarding Nguyen’s injuries because Nguyen’s attorney promised to provide records, yet provided only some of the records. “[I]n light of the Plaintiff’s manipulation of the settlement offer deadline, the Kansas Supreme Court would hold that no reasonable jury could find Emcasco’s delay was responsible for the parties’ failure to reach a policy-limits settlement.”

Submitted by: Bruce D. Celebrezze & Erin A. Cornell (Sedgwick, Detert, Moran & Arnold LLP)

 

4/10/07            Wells v. Gulf Insurance Company
Fifth Circuit Court of Appeals

Insolvency of primary auto carrier did not require excess insurer in Texas case to “drop down” over amount of MCS 90 endorsement
In a case where a trucking company was self-insured for the first million dollars in exposure and then had insolvent first layer excess coverage with Reliance for the next $2.7 million, the Fifth Circuit has ruled that a Texas court erred in holding that an MCS 90 endorsement in the second layer excess policy issued by Gulf required it to pay a $418,000 personal injury judgment against the insured. The plaintiff argued that the MCS 90 endorsement, which bound Gulf to pay $1 million for losses in effect made it the surety of the insured’s self-insurance for this amount, since it was the first available layer of solvent coverage. The Fifth Circuit rejected this argument, however, holding that the federal public policy underlying the Motor Carrier Act of 1980, which mandated the inclusion of such endorsements, had nothing to do with whether insurance was solvent or not. Turning to the endorsement itself, the Fifth Circuit found that its obligations were specific to the layer of coverage of the policy to which it was appended and therefore did not require Gulf to “drop down” to pay the underlying judgment.

Submitted by: Michael F. Aylward (Morrison Mahoney LLP)

 

4/09/2007        Golden Eagle Ins. Corp. v. Cen-Fed,  Ltd.

California Court of Appeal

Supplementary Payment obligations are not triggered if insurer has no duty to defend.
The Second Appellate District of the California Court of Appeal has ruled a trial court erred in holding that a liability insurer had an obligation pursuant to the Supplementary Payments provisions in its policy to reimburse the insured for an award of attorney’s fees to the underlying claimant notwithstanding the court’s independent determination that the insurer had no obligation to provide a defense to or otherwise indemnify its policyholder against such claims. The Second Appellate District agreed with the Superior Court that the underlying claims, which sought damages under a lease for the insured’s failure to maintain the premises in accordance with certain warranty provisions, failed to seek recovery for “property damage.” Nor was the insured’s failure to comply with the provisions of the lease an “accident.” However, the Court of Appeal ruled that the Superior Court had erred in interpreting the Supplementary Payments provision in the policy, which required the insurer to also pay all “costs taxed against the insured” in any suit that the insurer had defended as creating an independent obligation to indemnify the insured for the underlying award of attorney’s fees. Rather, the court held that the Supplementary Payments coverage was coextensive with the duty to defend and as it had determined that there was no duty to defend, there could be no obligation to pay taxed costs. Otherwise, insurers that chose to provide a defense to their policyholders would be exposed to an “unfair and prejudicial burden.”

Submitted by: Michael F. Aylward (Morrison Mahoney LLP)

 

4/10/07            Mt. Mansfield Insurance Group v. American International Group

Oregon Court of Appeals
Even intentional discharges of waste may be viewed as “accidental” if the insured did not expect or intended the pollutants to escape from an enclosed area and enter the groundwater
While holding that a trial court erred in holding that an insurer had the burden of proof with respect to the “sudden and accidental’ exception to a pollution exclusion, the Oregon Court of Appeals has otherwise held in Employers Ins. of Wausau v. Tektronix, Inc., A123664 (Ore. App. March 28, 2007), that a jury might find that leaching from unlined pits was a sudden and accidental event. Even though the insured had intentionally placed sludge on the ground in the expectation that water would evaporate, the court ruled that the release might still be ‘accidental,” inasmuch as the insured’s liability was based on the escape of pollutants from the bermed area into the groundwater, which was unexpected and unintended” by the insured. The court also rejected Wausau’s argument that sums paid to the insured’s employees to investigate or remediate contamination fell outside the meaning of “damages”

Submitted by: Michael F. Aylward (Morrison Mahoney LLP

 

 

Full Text of Cases

 

Ace Packing Co. Inc. v. Campbell Solberg Associates, Inc.,

 

Cross appeals from an order of the Supreme Court, New York County (Walter B. Tolub, J.), entered August 15, 2006, which, inter alia, granted plaintiff's motion and defendant Campbell Solberg's cross motion for summary judgment to the extent of declaring that defendant Utica First is obligated to defend and indemnify plaintiff in the underlying action.

KAVANAGH, J.

Defendant insurer Utica First disclaimed coverage, claiming that plaintiff insured failed to satisfy the requirements of the governing insurance policy by providing timely notice of the claim to the insurer. Supreme Court found that the insurer's disclaimer was untimely as a matter of law, concluding that the grounds for disclaiming were readily apparent to the insurer based upon the documents submitted, and thus the insurer had no need to investigate the insured's delay in providing notice of the claim. The court's conclusion that there was no need for the insurer to conduct an investigation before determining whether to disclaim, and that the 38-day delay - which was in large measure not of the insurer's making - was unreasonable as a matter of law, must be reversed.

Without question, an insurer is obligated, under Insurance Law § 3420(d) to disclaim coverage without delay when the grounds for disclaiming are readily apparent based upon the documents delivered to the insurer. Citing prior cases from this Court (2833 Third Ave. Realty Assoc. v Marcus, 12 AD3d 329 [2004]; West 16th St. Tenants Corp. v Public Serv. Mut. Ins. Co., 290 AD2d 278 [2002], lv denied 98 NY2d 605 [2002]), plaintiff suggests that when an insurer disclaims solely upon an insured's failure to provide timely notice of an underlying claim, the insurer is required to disclaim immediately upon learning of the delay, and that any attempt by the insurer to investigate the circumstances behind the delay is unnecessary and unreasonable as a matter of law. In my view, such a position carries with it draconian, and I believe unintended, consequences.

Here, the issue could not be more clearly drawn: did the insurer need to investigate to determine if in fact it had the right under its policy to disclaim any liability when it first learned of the accident and the subsequent litigation? The facts as they relate to this issue are not in dispute. The underlying accident occurred on December 19, 2001. The first notice plaintiff had that a lawsuit would be commenced came in the form of a notice of claim it received from an attorney on December 6, 2002. Another notice followed on January 24, 2003, and shortly thereafter, plaintiff received a copy of the verified complaint filed in the underlying personal injury action. All of these documents were forwarded at some point to a representative of Campbell Solberg ^[FN1]. The insurer was not notified about either the accident or the underlying claim until June 7, 2004. Upon receiving that notification, the insurer immediately retained an adjuster to investigate the claim, and more importantly, the issue regarding late notice. The adjuster sought to interview plaintiff about the circumstances surrounding the accident and what plaintiff did when it first received notice of the claim and the resulting lawsuit. Plaintiff refused to cooperate with the adjuster and persisted in that refusal for 30 days ^[FN2]. Only after being reminded of its obligation under the policy to cooperate in such an inquiry did it relent, and on July 7, 2004, for the first time, plaintiff provided crucial information to the adjuster regarding the accident and what it did when it learned of the lawsuit. Upon receipt of this information, the adjuster promptly completed its investigation, and eight days later filed its final report with the insurer with appropriate findings. On that same date, July 15, 2004, the insurer notified plaintiff in writing that it was disclaiming any obligation under the policy to provide coverage.

The timeliness of an insurer's disclaimer is measured from the date it first receives information that would disqualify the claim (Matter of Allcity Ins. Co. v Jimenez, 78 NY2d 1054 [1991]). Here, the operative date is June 7, 2004, and the questions that must be asked are: (1) what did the insurer know on that date about the accident and the resulting claim, and (2) did that information make it readily apparent at that time that it had the right to disclaim coverage under the policy?

 

On June 7, 2004, the insurer knew that an accident had occurred and that a year later a lawsuit was commenced. It did not know on that date when plaintiff first learned of either the accident or the lawsuit, facts essential to the insurer in determining whether to disclaim. More importantly, it did not know what plaintiff did with that information when it was received, and could not have known if plaintiff would subsequently claim that it had ever notified the insurer about either event. Only an investigation of the type ordered by the insurer would yield answers to those questions, answers which the insurer needed in order to make a good faith decision regarding disclaimer ^[FN3]. The fact that this inquiry took 38 instead of 8 days to complete was due entirely to plaintiff's refusal to cooperate with the adjuster in its investigation (see Farmbrew Realty Corp. v Tower Ins. Co. of N.Y., 289 AD2d 284 [2001], lv denied 98 NY2d 601 [2002]; Norfolk & Dedham Mut. Fire Ins. Co. v Petrizzi, 121 AD2d 276 [1986], lv denied 68 NY2d 611 [1986]).In short, merely because the insurer knew on June 7, 2004 that the claim involved an accident that occurred on December 19, 2001 did not make it "readily apparent" that it had the right to disclaim coverage. It needed to know more, and its investigation provided the additional information that was required for the insurer in good faith to disclaim coverage under this policy.
Furthermore, the insurer's decision to conduct an investigation on those facts was imminently reasonable, and no one involved in this litigation has claimed that it did so to gain a tactical advantage or had in any way acted in bad faith. In fact, if any party to this transaction was guilty of unreasonable conduct, it was the insured; its refusal to honor its contractual obligation and cooperate in the adjuster's inquiry was the primary reason why it took more than a month to complete this investigation.

Finally, the position advocated by plaintiff would simply invite insurers to adopt a policy to "disclaim now and investigate later". Such an approach cannot be said to be in anyone's interest, and if implemented would only serve to promote uncertainty and anxiety amongst insureds.

Accordingly, the order of Supreme Court, New York County (Walter B. Tolub, J.), entered August 15, 2006, which, inter alia, granted plaintiff's motion and defendant Campbell Solberg's cross motion for summary judgment to the extent of declaring that defendant Utica First is obligated to defend and indemnify plaintiff in the underlying action, should be modified, on the law, plaintiff's motion and defendant Campbell Solberg's cross motion for summary judgment denied in their entirety, the proceeding remanded to Supreme Court for a de novo determination of defendant Utica's motion for summary judgment, and otherwise affirmed, without costs.

All concur.

Footnotes

Footnote 1:Campbell Solberg is an independent broker that placed plaintiff's liability policy with the insurer. All agree that Campbell is not the insurer's agent (see generally Brown v Poritzky, 30 NY2d 289 [1972]).

Footnote 2:Plaintiff refused to sign a form agreeing that the insurer, by conducting this investigation, was not waiving any rights it might otherwise have with regard to its legal obligation to provide coverage under the policy.

Footnote 3:The adjuster, in its report, informed the insurer that plaintiff knew of the accident at or about the time it happened, but did not report it because the party involved did not appear to be injured. Only a year later, when it received letters from the party's attorney notifying it that a claim would be made, did plaintiff contact its insurance broker, an employee of Campbell. Plaintiff never notified the insurer or its designated agent about either the claim or the lawsuit.

In re National Grange Mutual Insurance Company v. Hing Wa Louie

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered March 14, 2006, which granted a temporary stay of arbitration pending a referee's hearing and report on the insurance status of the alleged offending vehicle in the accident, and denied petitioner additional discovery, unanimously affirmed, with costs.

The automobile driven by respondent, a Connecticut resident whose insurance policy was issued by petitioner in that state, was involved in an accident in the Bronx with an apparently uninsured vehicle registered to, owned and operated by a New Jersey resident. Since the accident occurred in New York State and petitioner does business here, respondent notified petitioner of his intention to pursue arbitration in connection with his uninsured motorist benefits (see Insurance Law § 5106[b]). Petitioner thereupon commenced this proceeding to stay arbitration on the ground that respondent is not entitled to such arbitration under the relevant policy and Connecticut law.

Petitioner's appeal from the temporary stay is based in part on the argument that Connecticut law governs Louie's demand for arbitration. However, we have long held that where the obligation to arbitrate is not found in the policy but is instead imposed on that agreement by the New York State Insurance Law, it "is imposed not only upon New York policies but also upon policies written for nonresidents when their automobiles are operated in this State and the insurer is authorized to transact business here" (Ohio Cas. Group v Avellini, 54 AD2d 632 [1976], affd on our memorandum 43 NY2d 701 [1977]). To the extent the Second Department has more recently held otherwise (Matter of State Farm Mut. Auto. Ins. Co. v Torcivia, 277 AD2d 321 [2000]), we decline to follow that ruling.

The court did not improvidently exercise its discretion in denying the request for disclosure in aid of arbitration (CPLR 3102[c]), in view of petitioner's failure to set forth the kind of information it expected to find through that discovery.

A.J. Pegno Construction Corp. v. Highlands Insurance Company

Judgment, Supreme Court, New York County (Faviola A. Soto, J.), entered June 28, 2006, which, to the extent appealable, granted plaintiff declaratory relief, and bringing up for review an order, same court and Justice, entered January 23, 2006, which denied defendant Highland Insurance Company's motion for a stay, unanimously reversed, on the law, with costs, the judgment vacated, and the motion for a stay granted. Appeal from the January 23, 2006 order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The judgment declared that "the Highlands primary liability insurance policy and the Highlands umbrella liability insurance policy . . . issued to Budco Enterprises, Inc. afford liability insurance coverage to Pegno for the claims against Pegno in the underlying Power action." Highlands, a Texas-based insurer that writes policies in all 50 states, moved to stay this declaratory judgment action on the ground that in November 2003, the District Court of Travis County, Texas, appointed the Texas Commissioner of Insurance as Receiver of Highlands for purposes of conserving its assets and rehabilitating its business. Any and all claims against Highlands were to be submitted exclusively to that Receiver. The Texas order further restrained and permanently enjoined all litigation against Highlands. In May 2004, Highlands filed this Texas order in Supreme Court, Westchester County, pursuant to the Uniform Enforcement of Foreign Judgments Act (CPLR art 54). "In accordance with the Full Faith and Credit Clause, a judgment of a state court should have the same credit, validity, and effect, in every other court of the United States, which it had in the state where it was pronounced'" (O'Connell v Cocoran, 1 NY3d 179, 184 [2003], quoting Hampton v McConnell,  3 Wheat [16 US] 234, 235 [1818] [Marshall, J.]). Plaintiff improperly commenced this declaratory judgment action, and the court should have granted the motion by Highlands for a stay.

Bergin v. Grace

Calendar Date: February 22, 2007
Before: Mercure, J.P., Spain, Carpinello, Rose and Lahtinen, JJ. 

MEMORANDUM AND ORDER

Mercure, J.P.

Appeal from an order of the Supreme Court (Lebous, J.), entered October 5, 2006 in Broome County, which denied plaintiff's motion for partial summary judgment.

In September 1996, plaintiff retained defendant to represent her in connection with a hazard insurance claim for damages caused to her residence and place of business in a December 1995 fire. The parties were unable to reach a settlement and defendant commenced an action on plaintiff's behalf against the insurer, among others, in February 2000. Supreme Court (Rumsey, J.) granted the insurer's motion to dismiss on the ground that the action had not been commenced within the insurance policy's two-year statute of limitations, and this Court affirmed (Bergin v Quincy Mut. Fire Ins. Co., 289 AD2d 661 [2001]). In this action, plaintiff claims that defendant's failure to timely commence the underlying action against the insurer constituted legal malpractice. She appeals from the denial of her motion for partial summary judgment on the issue of defendant's negligence, and we now reverse.

It is well settled that "[i]n order to obtain summary judgment on a legal malpractice claim, the movant must demonstrate, through the submission of evidentiary proof in admissible form, that the attorney did not exercise that degree of care, skill and diligence commonly possessed and exercised by a member of the legal profession" (Deitz v Kelleher & Flink, 232 AD2d 943, 944 [1996]). Defendant does not dispute that the insurance policy contained a provision limiting the time to commence suit to one year and that the provision was properly construed to conform to the two-year statutory minimum period (see Insurance Law § 3103 [a]; § 3404 [e]). Rather, he asserts that he believed that the six-year limitations period for contractual claims applied (see CPLR 213), was not aware of the potential for a contractual statute of limitations being incorporated within the policy itself and learned of the two-year contractual limitations period only upon service of the insurer's answer. In our view, however, inasmuch as the insurance policy indisputably set forth a shortened statute of limitations and defendant admittedly failed to commence an action within the applicable time frame provided by statute, his conduct "fell below the ordinary and reasonable skill and knowledge commonly possessed in the legal profession," and constituted negligence as a matter of law (A.H. Harris & Sons v Burke, Cavalier, Lindy & Engel, 202 AD2d 929, 930 [1994]; see Deitz v Kelleher & Flink, supra at 945; see also Logalbo v Plishkin, Rubano & Baum, 163 AD2d 511, 514 [1990], lv dismissed 77 NY2d 940 [1991]; Shaughnessy v Baron, 151 AD2d 561, 562 [1989]; see generally Jones Lang Wootton USA v LeBoeuf, Lamb, Greene & MacRae, 243 AD2d 168, 175 [1998], lv dismissed 92 NY2d 962 [1998]). Accordingly, we reject defendant's argument that there is a question of fact under these circumstances and conclude that plaintiff is entitled to summary judgment on the issue of whether defendant was negligent in failing to properly commence her action against the insurer (see Williams v Kublick, 302 AD2d 961, 961-962 [2003]; Stanksi v Ezersky, 210 AD2d 186, 186 [1994]).

Fremont Realty, Inc., v. P & N Iron Works, Inc. (and Zurich American)  

 

DECISION & ORDER

In an action, inter alia, to recover damages for negligence and breach of contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Colabella, J.), entered December 9, 2005, as granted that branch of the motion of the defendant Zurich American Insurance Co. which was for summary judgment dismissing the complaint insofar as asserted against it.

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

On its motion for summary judgment dismissing the complaint insofar as asserted against it, the defendant Zurich American Insurance Co. (hereinafter Zurich), which had issued a particular insurance policy to the plaintiff, demonstrated its entitlement to judgment as a matter of law by submitting evidence establishing, inter alia, that it had no duty to advise the plaintiff to obtain certain additional insurance coverage (see Chaim v Benedict, 216 AD2d 347; Erwig v Cook Agency, 173 AD2d 439). Since, in response to this showing, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324), the Supreme Court correctly granted that branch of Zurich's motion which was for summary judgment dismissing the complaint insofar as asserted against it.

Fremont Realty, Inc. v. P & N Iron Works, Inc., and USI Securities, Inc.

 

Oxman Tulis Kirkpatrick Whyatt & Geiger, LLP, White Plains,
N.Y. (Gregory J. Spaun of counsel), for appellant.
Traub Eglin Lieberman Straus LLP, Hawthorne, N.Y. (Jonathan
R. Harwood of counsel), for
respondent.

 

DECISION & ORDER

In an action, inter alia, to recover damages for negligence in the procurement of insurance coverage and breach of contract, the plaintiff appeals from an order of the Supreme Court, Westchester County (Colabella, J.), entered December 20, 2005, which granted the motion of the defendant USI Securities, Inc., for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

On its motion for summary judgment dismissing the complaint insofar as asserted against it, the defendant USI Securities, Inc. (hereinafter USI), which was the plaintiff's insurance broker, demonstrated its entitlement to judgment as a matter of law by submitting evidence establishing that the plaintiff did not specifically request that it procure certain additional insurance coverage, and that it did not have a "special relationship" with the plaintiff that would have required it to advise the plaintiff to obtain that coverage (see Murphy v Kuhn, 90 NY2d 266, 270; Loevner v Sullivan & Strauss Agency, Inc., 35 AD3d 392, 393, lv denied NY3d [March 27, 2007]; Curiel v State Farm Fire & Cas. Co., 35 AD3d 343; Tappan Wire & Cable v County of Rockland, 305 AD2d 665, 666; Storybook Farms v Ruchman Assoc., 284 AD2d 450, 451; M & E Mfg. Co. v Frank H. Reis, Inc., 258 AD2d 9, 11). Since, in opposition to that showing, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324), the Supreme Court correctly granted USI's motion for summary judgment dismissing the complaint insofar as asserted against it.

JKT Construction, Inc. v. United States Liability Insurance Group

Marshall, Conway & Wright, P.C., New York, N.Y. (John L.
Tarnowski of counsel), for appellant.
Marianne N. Candito, Oakdale, N.Y., for respondent.

 

DECISION & ORDER

In an action for a judgment declaring that the defendant United States Liability Insurance Group has a duty to defend and indemnify the plaintiff in an underlying personal injury action entitled Sullivan v G & L Building Corp., et al., pending in the Supreme Court, Suffolk County, under Index No. 13922/02, or alternatively, to recover damages against the defendant Dingegar-Schneider Reaccuglia Agency, Inc., for negligence and/or breach of contract, the defendant Dingegar-Schneider Reaccuglia Agency, Inc., appeals, as limited by its brief, from so much of an order and judgment (one paper) of the Supreme Court, Nassau County (Martin, J.), entered January 13, 2006, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order and judgment is reversed insofar as appealed from, on the law, with costs, and the motion for summary judgment dismissing the complaint insofar as asserted against the defendant Dingegar-Schneider Reaccuglia Agency, Inc., is granted.

An insurance agent or broker has a common-law duty to obtain requested coverage for a client within a reasonable amount of time or to inform the client of the inability to do so (see Murphy v Kuhn, 90 NY2d 266, 270; Loevnar v Sullivan & Strauss Agency, Inc., 35 AD3d 392, 393, iv denied NY3d [March 27, 2007]; Reilly v Progressive Ins. Co., 288 AD2d 365; Chaim v Benedict, 216 AD2d 347). Absent a specific request for coverage not already in a client's policy, or the existence of a special relationship with the client, an insurance agent or broker has no continuing duty to advise, guide, or direct a client to obtain additional coverage (see Murphy v Kuhn, supra at 270-271; Lovener v Sullivan & Strauss Agency, Inc., 35 AD3d 392, 393; Reilly v Progressive Ins. Co., supra at 366).

Here, the appellant demonstrated its prima facie entitlement to summary judgment by presenting evidence that it procured the specific insurance coverage the plaintiff requested, namely, a general liability policy (see Empire Indus. Corp. v Ins. Cos. of N. Am., 226 AD2d 580, 581). Moreover, the appellant also demonstrated that a specific exclusionary clause later sought by the plaintiff was not available at the time the policy was procured (see Mott v NY Prop. Ins. Underwriting Assn., 209 AD2d 981; Hjemdahl-Monsen v Faulkner, 204 AD2d 516, 517; Rodriguez v Investors Ins. Co. of Am., 201 AD2d 355, 356; MacDonald v Carpenter & Pelton, 31 AD2d 952, 954). Furthermore, there is no evidence that the appellant breached any duty to advise the plaintiff as to the insurance coverage (see Murphy v Kuhn, supra at 270-271; cf. Reilly v Progressive Ins. Co., supra at 366). The plaintiff failed to raise a triable issue of fact in opposition to the appellant's showing of its prima facie entitlement to judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557, 562-563; Gershman v Habib, 37 AD3d 530).

In the Matter of New York Central Mutual Insurance Co. v. Davalos and Allstate

 

Russo, Keane & Toner, LLP, New York, N.Y. (David S. Gould of
counsel), for appellant.

 

DECISION & ORDER

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated January 5, 2006, which granted that branch of the motion of the respondent Daniel Davalos which was for reargument of the petition, which had been granted in an order of the same court dated August 15, 2005, and upon reargument, denied that branch of the petition which was to permanently stay arbitration, and, in effect, denied that branch of the petition which was, in effect, to add Allstate Insurance, Sebastian Gutierrez Meza, and Daniel Ashley as additional respondents.

ORDERED that the order is modified, on the law, by deleting the provisions thereof which, upon reargument, denied that branch of the petition which was to permanently stay arbitration, and, in effect, denied that branch of the petition which was, in effect, to add Allstate Insurance, Sebastian Gutierrez Meza, and Daniel Ashley as additional respondents, and substituting therefor a provision granting that branch of the petition which was, in effect, to add Allstate Insurance, Sebastian Gutierrez Meza, and Daniel Ashley as additional respondents; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for an evidentiary hearing on the issue of whether Allstate Insurance validly disclaimed coverage of the offending vehicle for the subject accident and for a new determination thereafter of that branch of the petition which was to permanently stay arbitration.

"Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision" (E.W. Howell Co., Inc. v S.A.F. La Sala Corp., 36 AD3d 653; see Marini v Lombardo, 17 AD3d 545; Carrillo v PM Realty Group, 16 AD3d 611; Viola v City of New York, 13 AD3d 439). Contrary to the petitioner's contention, the Supreme Court providently exercised its discretion in granting reargument to consider whether its original determination to permanently stay arbitration was proper in light of a recent Court of Appeals decision that had been overlooked.

Furthermore, upon granting reargument, the court properly concluded that the petitioner was not entitled to a stay of arbitration based upon the failure of the respondent Daniel Davalos to provide notice of his claim for uninsured motorist benefits "as soon as practicable" as required by the supplementary uninsured/underinsured motorist (hereinafter SUM) endorsement of the subject insurance policy. Where, as here, timely notice of an accident has been given and the injured claimant has applied for no-fault benefits, an insurer cannot disclaim coverage under a SUM endorsement unless it establishes that it has been prejudiced by late notice of the SUM claim (see Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468; Matter of Nationwide Mut. Ins. Co. v Perlmutter, 32 AD3d 947; Matter of State Farm Mut. Auto. Ins. Co. v Rinaldi, 27 AD3d 476). Timely notice of the accident is "sufficient to promote the valid policy objective of curbing fraud or collusion" underlying notice requirements (see Rekemeyer v State Farm Mut. Auto. Ins. Co., supra at 475). Although the petitioner argues that the rationale of the Court of Appeals in Rekemyer v State Farm Mut. Auto. Ins. Co. (supra), should be limited to claims for underinsured motorist benefits, we find it equally applicable to claims for uninsured motorist benefits made pursuant to a SUM endorsement. Since the petitioner has not claimed any prejudice arising from the late notice of the SUM claim, the court correctly determined that it is not entitled to a stay of arbitration on this ground.

However, the court should have added Allstate Insurance (hereinafter Allstate) and the owner and operator of the offending vehicle as additional respondents. In support of its petition, inter alia, to permanently stay arbitration of Davalos's claim for uninsured motorist benefits, the petitioner submitted the police accident report which contained the offending vehicle's insurance code designation, and Allstate's letter disclaiming coverage to the owner of the offending vehicle based upon his alleged noncooperation. This proof raised a question of fact as to whether Allstate validly disclaimed coverage of the offending vehicle (see Matter of New York Cent. Mut. Fire Ins. Co. v Hall, 7 AD3d 629; Matter of Eagle Ins. Co. v Villegas v State Farm Mut. Auto. Ins. Co., 307 AD2d 879; Matter of Allstate Ins. Co. v Anderson, 303 AD2d 496; Matter of Lumbermens Mut. Cas. Co. v Beliard, 256 AD2d 579). Accordingly, we remit the matter to the Supreme Court, Kings County, for an evidentiary hearing on the issue of whether Allstate validly disclaimed coverage of the offending vehicle for the subject acccident (see Matter of New York Cent. Mut. Fire Ins. Co. v Hall, supra; Matter of Lumbermens Mut. Cas. Co. v Beliard, supra).

Engles v.  Claude

Michael C. Marcus, Long Beach, for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for respondents.

 

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered March 17, 2006, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

 

The affidavits of plaintiff's experts are not defective simply because the notary's signature and seal appear on a separate page following the deponents' respective signatures (cf. Collins v AA Trucking Renting Corp., 209 AD2d 363 [1994]), and the positive MRI findings should have been considered, although unsworn, because they were reviewed by defendants' expert orthopedist in reaching his opinion (see Thompson v Abbasi, 15 AD3d 95, 97 [2005]). Issues of fact as to whether plaintiff sustained serious injuries within the meaning of Insurance Law
§ 5102(d) are raised by her experts' opinions that, as a result of the accident, she sustained a torn meniscus of the right knee that will require arthroscopic surgery (see Noriega v Sauerhaft, 5 AD3d 121 [2004]), tendinosis of the right shoulder (see Jones v Norwich City School Dist., 283 AD2d 809 [2001]), and has been unable to return to work as a traffic control officer because of an inability to stand for long periods of time or lift her right arm above the head (cf. DeAraujo v Stem Cab Corp., 207 AD2d 823 [1994], lv denied 84 NY2d 813 [1995]). Plaintiff's other claimed injuries were not serious within the meaning of the statute.

 

 

Anderson v. Dainack

Calendar Date: February 15, 2007
Before: Peters, J.P., Mugglin, Rose and Lahtinen, JJ.

James R. McCarl & Associates, Montgomery (James
R. McCarl of counsel), for appellants.
Norman M. Block, P.C., Hawthorne (Norman M.
Block of counsel), for respondent.

MEMORANDUM AND ORDER


Peters, J.P.

Appeal from a judgment of the Supreme Court (Sackett, J.), entered January 24, 2006 in Sullivan County, upon a verdict rendered in favor of plaintiff.

 

In December 2001, plaintiff was at the end of an exit ramp from Route 17 in Sullivan County when she was struck from behind by a vehicle driven by defendant Denise Dainack. Plaintiff experienced pain in her lower back and neck the following day, and reported first to the emergency room and then to her family physician. Over the course of the next few months, the pain continued, warranting her referral to physical therapy and a pain center. When plaintiff's pain persisted, she treated with a neurologist in January and February 2003 and with Paul Sinew, a chiropractor, between May 2003 and December 2003.

 

Plaintiff commenced this action in October 2004, claiming a serious injury under Insurance Law § 5102 (d). Summary judgment was awarded to her on the issue of liability, warranting a trial on the issues of injury and damages. The jury determined that plaintiff had not sustained a significant limitation of use of a body function or system, but had suffered a permanent consequential limitation of the use of a body organ or member, resulting in an award for both past and future pain and suffering in the amount of $85,000. Defendant appeals.

 

Supreme Court's preclusion of photographs and testimony concerning the condition of the vehicles after the accident due to possible prejudice by the jury against plaintiff was within its discretionary authority (see Saulpaugh v Krafte, 5 AD3d 934, 934-935 [2004], lv denied 3 NY3d 610 [2004]). However, we have stated that even when liability is not at issue, "proof as to the happening of an accident is probative and admissible as it describes the force of an impact or other incident that would help in determining the nature or extent of injuries and thus relate to the question of damages" (Rodriguez v Zampella, 42 AD2d 805, 806 [1973]; see also Homsey v Castellana, 289 AD2d 201, 201 [2001]). While we would encourage a trial court to allow such photographs and testimony and then instruct the jury that the absence of damage would not preclude the possibility that plaintiff sustained an injury, where, as here, defendants were permitted to elicit testimony that the vehicles were a very short distance apart between one and eight feet and that defendant's car slowly rolled into plaintiff's car, we find no error (see CPLR 2002; Brown v County of Albany, 271 AD2d 819, 820 [2000], lv denied 95 NY2d 767 [2000]; Khan v Galvin, 206 AD2d 776, 777 [1994]).

 

Next addressing Supreme Court's ruling that prevented defendant's expert from testifying about an independent medical exam (hereinafter IME) report completed by a physician hired by plaintiff who was not going to testify at trial, it has been held that such expert may be permitted to rely upon otherwise inadmissible hearsay evidence (see People v Goldstein, 6 NY3d 119, 124-125 [2005], cert denied US , 126 S Ct 2293 [2006]; Hambsch v New York City Tr. Auth., 63 NY2d 723, 725-726 [1984]) if the evidence is deemed reliable "as a basis for [such] expert opinion in the given field" (People v Wlasiuk, 32 AD3d 674, 681 [2006], lv dismissed 7 NY3d 871 [2006]). Yet, such evidence "may not be the 'principal basis' for an opinion on the ultimate issue in the case, and may only form a link in the chain of data which led the expert to his or her opinion" (id. at 681, quoting Borden v Brady, 92 AD2d 983, 984 [1983]; see Hinlicky v Dreyfuss, 6 NY3d 636, 645-646 [2006]).

Here, defendants' expert conducted his own examination of plaintiff and reviewed a number of plaintiff's medical records beyond the disputed IME. For this reason, he had a sufficient basis for his opinion of which the disputed IME was but "a link in the chain of data upon which [he could have] relied" (Borden v Brady, supra at 984; see Ciocca v Park, 21 AD3d 671, 672-673 [2005], affd 5 NY3d 835 [2005]). Finding that this error would not have substantially influenced the outcome of the trial (see CPLR 2002; Braunsdorf v Haywood, 295 AD2d 731, 733 [2002]; Brown v County of Albany, supra at 820; Khan v Galvin, supra at 777), we next review whether the jury's determination was amply supported by the evidence.

 

While we fail to find any merit to defendants' contention that plaintiff did not prove that she sustained a serious injury under Insurance Law § 5102 (d)^[FN1] since there was sufficient objective evidence, including range of motion tests quantitatively demonstrating the severity of plaintiff's injuries (see Pommells v Perez, 4 NY3d 566, 567 [2005]) to support both the expert testimony and the jury's verdict (see Toure v Avis Rent a Car Sys., 98 NY2d 345, 350-358 [2002]; Pianka v Pereira, 24 AD3d 1084, 1085-1086 [2005]; Martin v Fitzpatrick, 19 AD3d 954, 956-957 [2005]), we are constrained to reverse based upon errors in Supreme Court's charge to the jury. Supreme Court charged the jury regarding the aggravation of a preexisting injury and the increased susceptibility to injury based upon testimony that plaintiff suffered from spinal stenosis before the accident. It is settled that damages may be recovered if such theories are "specially pleaded and proved" (De Mento v Nehi Beverages, 55 AD2d 794, 795 [1976]; see Ogunti v Hellman, 281 AD2d 404, 405 [2001]; Ruggiero v Banner Glass & Mirror Corp., 232 AD2d 395, 396 [1996]; Behan v Data Probe Intl., 213 AD2d 439, 440 [1995])^[FN2]. Here, however, plaintiff neither asserted an aggravation of a preexisting injury or an increased susceptibility to injury in her complaint, bill of particulars, or amended bill of particulars.

 

We recognize that "a variance between the pleadings and the proof 'may be disregarded unless it can be said to have misled an adversary and occasioned prejudice'" (Hummel v Vicaretti, 152 AD2d 779, 780 [1989], lv dismissed 75 NY2d 809 [1990], quoting Sharkey v Locust Val. Mar., 96 AD2d 1093, 1094 [1983], appeal dismissed 61 NY2d 669 [1983]). Here, however, only defendants raised the issue in their cross-examination of plaintiff's expert for the purpose of undermining plaintiff's theory of the accident. While this approach has been permitted by the Fourth Department (see Mazurek v Home Depot U.S.A., 303 AD2d 960, 961 [2003]; Martin v Volvo Cars of N. Am., 241 AD2d 941, 943 [1997]), we have not adopted it when there is a wholesale failure by the plaintiff to plead and prove that theory. For this reason, it was error for Supreme Court to have instructed the jury on these theories. Finding such error to have prejudiced a substantial right of defendants (see CPLR 2002), we reverse.

 

Mugglin, Rose and Lahtinen, JJ., concur.

ORDERED that the judgment is reversed, on the law, and matter remitted to the Supreme Court for a new trial on the issue of injury and damages, with costs to abide the event.

 

Chicas v. Catalano

Steven Siegel, P.C., Kew Gardens, N.Y. (Wendy Bishop of counsel), for appellants.
Abamont & Associates, Uniondale, N.Y. (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger [Gregory Cascino] of counsel), for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Brennan, J.), dated January 10, 2006, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

 

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

 

The Supreme Court erred in granting the defendant's motion. The defendant failed to make a prima facie showing that neither of the plaintiffs sustained 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 defendant's moving papers failed to address the allegations made by each of the plaintiffs, as contained in their bill of particulars, that as a result of the accident they each sustained an injury which prevented them from performing substantially all of the material acts which constituted their 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; Nembhard v Delatorre, 16 AD3d 390; Kawasaki v Hertz Corp., 199 AD2d 46). Since the defendant failed to establish her prima facie entitlement to judgment as a matter of law in the first instance, it is unnecessary to reach the question of whether the plaintiffs' papers were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538).
SCHMIDT, J.P., KRAUSMAN, GOLDSTEIN, COVELLO and ANGIOLILLO, JJ., concur.

 

Braun v. Melia

Kujawski & DelliCarpini, Deer Park, N.Y. (Mark C. Kujawski of counsel), for appellant.
Huenke & Rodriguez, Melville, N.Y. (Glen P. Rodriguez 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 (Weber, J.), dated May 2, 2006, which granted the defendants' cross motion 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, in effect, denied, as academic, her motion for summary judgment on the issue of liability.

 

 

 

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting the defendant's 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), and substituting therefor a provision denying the cross motion; and (2) by deleting the provision thereof which, in effect, denied, as academic, the plaintiff's motion for summary judgment on the issue of liability; as so modified, the order is affirmed, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Suffolk County, for a determination of the plaintiff's motion on the merits.

 

The defendants established prima facie that the plaintiff did not sustain a serious injury from the subject accident (see Insurance Law § 5102[d]; Toure v Avis Rent A Car Sys., 98 NY2d 345, 353). However, in opposition, the plaintiff raised an issue of fact. Accordingly, the Supreme Court should have denied the defendants' cross motion for summary judgment dismissing the complaint.
SCHMIDT, J.P., KRAUSMAN, GOLDSTEIN, COVELLO and ANGIOLILLO, JJ., concur.

 

Phillips v. Zilinsky

James P. Nunemaker, Jr., & Associates, Uniondale, N.Y. (Gene W. Wiggins of counsel),

for appellant.
Michael T. Ridge, Port Washington, N.Y. (Michelle S. Russo, P.C., of counsel), for respondent.

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Gregory DaVola appeals from so much of an order of the Supreme Court, Kings County (Partnow, J.), dated March 21, 2006, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him 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 motion for summary judgment dismissing the complaint insofar as asserted against the appellant is granted.

 

The appellant made 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; Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456; Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50).

 

In opposition, the affirmed medical reports of the plaintiff's treating orthopedic surgeon did not raise a triable issue of fact. Initially, in her most recent examination of the plaintiff performed on February 13, 2006, the orthopedic surgeon concluded that the limitations noted in cervical and lumbar spine range of motion, as well as the disc bulges noted in the plaintiff's magnetic resonance imaging (hereinafter MRI) reports, were caused by the subject accident. However, these conclusions were speculative as she did not address in her most recent report the findings contained in the report of the appellant's examining radiologist that the disc bulges in the plaintiff's cervical and lumbar spine were the result of pre-existing degenerative processes and not the subject accident (see Giraldo v Mandanici, 24 AD3d 419, 420; Lorthe v Adeyeye, 306 AD2d 252, 253; Pajda v Pedone, 303 AD2d 729, 730; Ginty v MacNamara, 300 AD2d 624, 625). Moreover, it is clear that she improperly relied upon unsworn MRI reports of the plaintiff's cervical and lumbar spine in coming to her diagnosis in her most recent report (see Brobeck v Jolloh, 32 AD3d 526; Vallejo v Builders For Family Youth, Diocese of Brooklyn, Inc., 18 AD3d 741, 742; Friedman v U-Haul Truck Rental, 216 AD2d 266, 267). Furthermore, neither the plaintiff nor her treating orthopedic surgeon adequately explained the 15-month gap between the date when the plaintiff, by her own admission in her deposition testimony, stopped treatment, and the date on which she was examined in February 2006 (see Pommells v Perez, 4 NY3d 566, 574; Hasner v Budnik, 35 AD3d 366, 368; Caracci v Miller, 34 AD3d 515; Bycinthe v Kombos, 29 AD3d 845, 846). The MRI reports of the plaintiff's cervical and lumbar spine dated October 25, 2004, were without probative value in opposing the appellant's motion since they were unaffirmed (see Grasso v Angerami, 79 NY2d 813, 814; Parente v Kang, AD3d [2d Dept, Feb. 20, 2007]; Nkhereanye v Hillaire, 35 AD3d 419, 420). The remaining submissions of the plaintiff did not amount to medical evidence sufficient to raise a triable issue of fact.
CRANE, J.P., SANTUCCI, FLORIO, DILLON and BALKIN, JJ., concur.

 

Waring v. Guirguis

Timothy M. Sullivan, New York, N.Y., for appellants.
Seidemann & Mermelstein, Brooklyn, N.Y. (David J. Seidemann of counsel), for respondents

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Jacobson, J.), dated May 8, 2006, which denied their motion for summary judgment dismissing the complaint on the ground that neither plaintiff sustained 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 plaintiffs were involved in automobile accident on December 17, 2000. They allege that certain medical records demonstrate that they both suffered from bulging and/or herniated discs and that as a result, their ranges of motion are so substantially impaired as to constitute serious injuries.

However, 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 De Rose, 35 AD3d 407; Yakubov v CG Trans. Corp., 30 AD3d 509, 510; Cerisier v Thibiu, 29 AD3d 507, 508; Bravo v Rehman, 28 AD3d 694, 695; Kearse v New York City Tr. Auth., 16 AD3d 45, 50; Diaz v Turner, 306 AD2d 241).

The defendants made a prima facie showing that neither of the plaintiffs sustained 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; Kearse v New York City Tr. Auth., supra). In opposition, the plaintiffs failed to raise a triable issue of fact. Neither the affidavit of the plaintiffs' examining chiropractor nor the plaintiffs' affidavits adequately explain the five-year gap in medical treatment (see Pommells v Perez, 4 NY3d 566; Cervino v Gladyzs-Steliga, 36 AD3d 744; Chan v Casiano, 36 AD3d 580; Farozes v Kamran, 22 AD3d 458).
RIVERA, J.P., SPOLZINO, FISHER, LIFSON and DICKERSON, JJ., concur.

 

Grande v. Peteroy

Stockschlaeder, McDonald & Sules, P.C., New York, N.Y. (Robert Seigal of counsel),

for appellants Alfred Peteroy and Louis Peteroy.
Kelly, Rode & Kelly, LLP (Rivkin Radler, LLP, Uniondale, N.Y.

[Evan H. Krinick, Harris J. Zakarin, and Cheryl F. Korman] of counsel),
for appellant Toyota Motor Credit Corp.
Orin J. Cohen, Staten Island, N.Y., for respondent.

 

DECISION & ORDER

In a consolidated action to recover damages for personal injuries, the defendants Alfred Peteroy and Louis Peteroy appeal, and the defendant Toyota Motor Credit Corp. separately appeals, as limited by their briefs, from so much of an order of the Supreme Court, Richmond County (Gigante, J.), dated January 11, 2006, as denied their respective motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and granted the plaintiff's cross motion for leave to amend her bill of particulars and for summary judgment on the issue of serious injury.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's cross motion which was for summary judgment on the issue of serious injury and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

On September 30, 2003, the Supreme Court issued a preliminary conference order requiring that all motions be made within 60 days of the filing of the note of issue. The plaintiff filed the note of issue on or about May 19, 2005.

By notice of motion dated June 6, 2005, the defendant Toyota Motor Credit Corp. moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). By notice of motion dated July 17, 2005, the defendants Alfred Peteroy and Louis Peteroy also moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). By notice of cross motion dated September 30, 2005, the plaintiff cross-moved for leave to amend her bill of particulars to add a tibial fracture of the leg as one of the injuries she sustained in the accident and for summary judgment against the defendants on the threshold issue of serious injury on the ground that a fracture constitutes a serious injury as a matter of law. The Supreme Court denied the defendants' respective motions and granted the plaintiff's cross motion for leave to amend the bill of particulars and for summary judgment on the issue of serious injury.

Leave to amend a bill of particulars is freely given absent prejudice or surprise, unless the amendment is sought on the eve of trial (see Singh v Rosenberg, 32 AD3d 840, 842; Joachim v Munoz, 21 AD3d 349). In the instant case, there is no evidence that the amendment was sought on the eve of trial. We note that a note of issue had been recently filed and the defendants' motions for summary judgment were pending. To avoid any prejudice, the Supreme Court granted the defendants the right and opportunity to conduct a physical examination of the plaintiff. Accordingly, that branch of the plaintiff's cross motion which was for leave to amend the bill of particulars was properly granted.

That branch of the plaintiff's cross motion which was for summary judgment on the issue of serious injury was made more than 60 days after the note of issue was filed and therefore was untimely (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725; Brill v City of New York, 2 NY3d 648). However, an untimely motion or cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds (see Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496, 497; Boehme v A.P.P.L.E., 298 AD2d 540; Miranda v Devlin, 260 AD2d 451). In such circumstances, the issues raised by the untimely motion or cross motion are already properly before the court and thus, the nearly identical nature of the grounds may provide the requisite good cause (see CPLR 3212[a]) to review the untimely motion or cross motion on the merits. Notably, the court, in the course of deciding the timely motion, is, in any event, empowered to search the record and award summary judgment to a nonmoving party (see CPLR 3212[b]).

However, summary judgment should have been denied to the plaintiff since the defendants had no opportunity to examine the plaintiff and determine for themselves whether a fracture indeed was present (see CPLR 3212[f]), causally related to the accident, and had no opportunity to submit an affidavit in opposition to that branch of the plaintiff's cross motion which was for summary judgment on the issue of serious injury.

Scudera v. Mahbubur

Michael G. Lorusso, Syosset, N.Y. (Shayne, Dachs, Stanisci, Corker & Sauer

[Jonathan A. Dachs] of counsel), for appellant.
Callahan & Malone, Mineola, N.Y. (Anne V. Malone of counsel), for respondents.

 

DECISION & ORDER

 

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Mahon, J.), entered July 8, 2005, which, upon a jury verdict finding that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and upon the denial of his motion pursuant to CPLR 4404 to set aside the jury verdict as against the weight of the evidence, is in favor of the defendants and against him, dismissing the complaint.

 

ORDERED that the judgment is reversed, on the law, the complaint is reinstated, the motion is granted, and a new trial is granted, with costs to abide the event.

 

To set aside a jury verdict as against the weight of the evidence, it must be concluded that the evidence so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence (see Harris v Marlow, 18 AD3d 608, 610; Torres v Esaian, 5 AD3d 670, 671; Nicastro v Park, 113 AD2d 129, 134).

 

At trial, the plaintiff's treating neurologist, Dr. Jill Bressler, testified, inter alia, that the plaintiff sustained a herniated disc at the L5-S1 level. The herniated disc was repeatedly documented by three magnetic resonance imaging (hereinafter MRI) studies taken over a period of more than four years. The defendant's examining neurologist, Dr. Ravi Tikoo, acknowledged the presence of the disc herniation, its exacerbation over time, and that it was a permanent condition. Similarly, Dr. Eric Minkin, a neuroradiologist who examined the MRI films at the defendants' request, acknowledged the existence of the herniated disc and testified that the disc material was "extending out of its normal position . . . into the spinal canal" and "appeared to be contacting the nerve root."

 

According to Dr. Bressler, further objective evidence of the plaintiff's nerve damage as a result of compression on the nerve root included sensory loss, decreased ankle jerk and weakness, and a loss of muscle bulk, known as atrophy, of the left leg. Dr. Tikoo acknowledged that atrophy of the calf muscle was an indication of nerve damage emanating from damage to the L5-S1 disc, yet, inexplicably, he failed to measure the plaintiff's calf muscle. Although Dr. Tikoo testified that the MRI films did not "clearly show any nerve damage," he did not state that they did not show any nerve damage.

 

Dr. Bressler also testified that as a result of this injury, the plaintiff's range of motion in his lumbar spine was significantly limited in that his backwards extension tested at only two degrees as opposed to a normal extension (25 degrees) for someone of the plaintiff's age, the plaintiff's forward flexion measured at 45 degrees which was 50% less than a normal range of motion (90 degrees), and his lateral bending was limited to 10 degrees, also a significant limitation. Dr. Bressler further testified that these limitations persisted during the approximately 20 times she examined the plaintiff since 2001 through the most recent examination, which was two days before the trial. Thus, the plaintiff provided the requisite objective evidence of the extent or degree of limitation and its duration (see Crespo v Kramer, 295 AD2d 467, 468; Barbeito v Kesev Taxi, 281 AD2d 379, 380). Significantly, Dr. Tikoo failed to test the flexion and extension ranges of motion of the plaintiff's lumbar spine, and Dr. Minkin examined only the MRI films. Indeed, on cross examination, Dr. Tikoo testified that he was not surprised by the findings made by Dr. Bressler as to the plaintiff's loss of range of motion, which he acknowledged could be characterized as significant.

 

Under these circumstances, the verdict in favor of the defendants could not have been reached on any fair interpretation of the evidence (see Nicastro v Park, supra at 134). Accordingly, the Supreme Court should have granted the plaintiff's motion.

 

The plaintiff's contention that the trial court's charge to the jury was improper and confusing is unpreserved for appellate review (see generally Schlecter v Abbondadello, 5 AD3d 582, 583; O'Loughlin v Butler, 2 AD3d 605, 605-606). Nevertheless, in light of our determination granting a new trial, we note that the trial court erred in instructing the jury, in part, as follows: "the fact that a person sustained a herniation does not necessarily mean the person sustained a serious injury. A person may have sustained a herniation without sustaining a serious injury."

 

While the instruction given by the court is a correct statement of the law (see e.g. Pommells v Perez, 4 NY3d 566, 574; Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 n 4; Meely v 4 G's Truck Renting Co., Inc., 16 AD3d 26, 30-31), the court also should have instructed the jury that a herniation together with other objective clinical tests providing a quantitative and or qualitative assessment of the plaintiff's condition resulting from the accident may establish a serious injury (see e.g. Pommells v Perez, supra at 577; Toure v Avis Rent A Car Sys., supra at 350-351; Iacovazzo v Ahmad, 27 AD3d 421, 421-422; Shpakovskaya v Etienne, 23 AD3d 368, 369; Clervoix v Edwards, 10 AD3d 626, 627; Assael v Marth, 300 AD2d 329, 329-330). While neither instruction is required, the failure to instruct the latter tended to improperly focus the jury's attention on the former, i.e., that which is not a serious injury, as opposed to equally addressing that which may constitute a serious injury.
SCHMIDT, J.P., SPOLZINO, FLORIO and SKELOS, JJ., concur.

 

Porto v. Blum

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellants.
Jack Baum, P.C., Brooklyn, N.Y., for respondent.

 

DECISION & ORDER

 

In an action to recover damages for personal injuries and property damages, the defendants appeal from an order of the Supreme Court, Kings County (Rivera, J.), dated September 29, 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 modified, on the law, by deleting the provision thereof denying that branch of the motion which was for summary judgment dismissing the first cause of action, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the defendants.

 

The defendants' evidence, which consisted of the affirmed medical report of their examining neurologist and the plaintiff's bill of particulars, was sufficient to establish, prima facie, 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; Yakubov v CG Trans Corp., 30 AD3d 509; Bell v Rameau, 29 AD3d 839; Collins v Stone, 8 AD3d 321). In opposition, the plaintiff failed to raise a triable issue of fact as to whether he sustained a serious injury. The affidavit of his treating physician failed to note any range of motion limitations in the plaintiff's left shoulder and lumbar spine that resulted from the subject accident (see Ramirez v Parache, 31 AD3d 415, 416; Ranzie v Abdul-Massih, 28 AD3d 447, 448; Li v Woo Sung Yun, 27 AD3d 624, 625). Furthermore, the plaintiff's physician improperly relied upon the unsworn magnetic resonance imaging report of another physician (see Felix v New York City Tr. Auth., 32 AD3d 527, 528; Baksh v Shabi, 32 AD3d 525; Vishnevsky v Glassberg, 29 AD3d 680, 681), and failed to set forth the objective medical tests utilized at his most recent examination of the plaintiff that led him to determine that the plaintiff sustained limitations of motion in his left shoulder (see Cardillo v Xenakis, 31 AD3d 683, 684; Springer v Arthurs, 22 AD3d 829, 830; Nelson v Amicizia, 21 AD3d 1015, 1016). Although the plaintiff's bill of particulars does not raise this particular issue, we note that his complaint alleged that he had been unable to attend to his regular duties. Nevertheless, the plaintiff failed to raise a triable issue of fact as to whether he was prevented from performing substantially all of his usual activities for at least 90 of the first 180 days following the subject accident (see Ranzie v Abdul-Massih, supra at 448-449).

 

The Supreme Court, however, properly denied that branch of the defendants' motion which was for summary judgment dismissing the second cause of action to recover property damages (see Pajda v Pedone, 303 AD2d 729, 730; McCauley v Ross, 298 AD2d 506, 507; Yaraghi v Zeller, 286 AD2d 765).

CRANE, J.P., SANTUCCI, FLORIO, DILLON and BALKIN, JJ., concur.

 

Panasia Estates, Inc. v. Hudson Insurance Company

White Fleischner & Fino, LLP, New York (Nancy Davis
Lyness of counsel), for appellant.
Peckar & Abramson, P.C., New York (Michael S. Zicherman
of counsel), for respondent.

Order, Supreme Court, New York County (Karen S. Smith, J.), entered July 24, 2006, which granted defendant's motion for summary judgment only to the extent of precluding plaintiff from asserting any claims for legal fees incurred in the prosecution of this action, unanimously affirmed, with costs.

An insured may recover foreseeable damages, beyond the limits of its policy, for breach of a duty to investigate, bargain for and settle claims in good faith (Acquista v New York Life Ins. Co., 285 AD2d 73 [2001]). The court's denial of defendant's application to dismiss plaintiff's claims for consequential damages from the alleged breach of such a duty was proper. Defendant has not shown that the proffered exclusion for "consequential loss" was an applicable provision under this policy. "Consequential loss" and "consequential damages" are not synonymous, as suggested by defendant.

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

 

Arzeno v. Mack and Travelers Casualty Company

 
Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered February 21, 2006, which denied the motion of defendant Mack for summary judgment dismissing the complaint as against him, granted summary judgment and dismissed the complaint as against defendants Travelers Casualty, Pepe and Farnan, and denied plaintiffs' motion for summary judgment, unanimously modified, on the law, Mack's motion granted and the complaint dismissed as against him, and, upon a search of the record, summary judgment dismissing the complaint as against defendants Zelanka and Wanderman as well, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.

This is an action for, inter alia, false arrest and malicious prosecution. Although an indictment charging plaintiffs with insurance fraud and offering false instruments for filing was ultimately dismissed, probable cause existed for their arrest and prosecution based on extensive investigation, including forensic tests of the vehicle's ignition cylinder. Such probable cause constituted a complete defense to a claim of false arrest, under both state and federal standards (see Marrero v City of New York, 33 AD3d 556, 557 [2006] and Weyant v Okst, 101 F3d 845, 852 [2d Cir 1996]). The claim of malicious prosecution also fails because of the existence of probable cause as well as the absence of actual malice (see Smith-Hunter v Harvey, 95 NY2d 191, 195 [2000]). Mack investigated the underlying criminal case as an employee of the New York State Police at the White Plains office of the Bureau of Criminal Investigation Special Investigations Unit, Auto Theft. Since probable cause existed and Mack's actions were reasonably based, no bad faith was shown and he was entitled to qualified immunity (see Arteaga v State of New York, 72 NY2d 212, 216 [1988]; see also Weyant, 101 F3d at 857-858).

As this Court has the authority to grant summary judgment to defendants even in the absence of a cross appeal (Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110 [1984]), such relief should be granted, upon a search of the record, to Assistant District Attorneys Zelanka and Wanderman for the same reasons as set forth above. These prosecutors were also entitled absolute immunity, as they were acting "within the scope of [their] official duties in initiating and pursuing a criminal prosecution and in presenting the State's case" (Shapiro v Town of Clarkstown, 238 AD2d 498, 500 [1997], lv denied 90 NY2d 807 [1997]).

The court properly dismissed the complaint as against Travelers Casualty and its investigators, Pepe and Farnan, based on their showing of entitlement to summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

We have considered plaintiffs' arguments on cross appeal and find them without merit.

Castillo v. 711 Group, Inc

 

APPEAL by the third-party defendant in an action to recover damages for personal injuries, from so much of an order of the Supreme Court (Ira B. Harkavy, J.), dated March 1, 2006, and entered in Kings County, which denied its motion for summary judgment dismissing the third-party complaint.


Baxter & Smith, P.C., Jericho, N.Y. (Sim R. Shapiro of counsel),
for third-party defendant-appellant.
Jones Hirsch Connors & Bull, P.C., New York, N.Y. (Miller &
Associates, P.C. [Scott E. Miller and
Mark D. Wellman] of counsel), for
defendant third-party plaintiff-
respondent.

OPINION & ORDER


GOLDSTEIN, J.At issue here is whether the plaintiff's injury constituted a grave injury as defined in Workers' Compensation Law § 11 under the category "loss of an index finger."

In August 2002, the plaintiff "sustained a traumatic amputation of his left index finger" while using a table saw at a construction site located at premises owned by the defendant 711 Group Inc., a New York Corporation (hereinafter 711 Group). In this action by the plaintiff against 711 Group to recover damages for his personal injuries, 711 Group commenced a third-party action against the plaintiff's employer, 3-D Laboratory, Inc., for common-law indemnification. After issue was joined in the third-party action, the third-party defendant moved for summary judgment alleging that the plaintiff did not suffer a "grave injury" pursuant to Workers' Compensation Law § 11.

In support of its motion for summary judgment, the third-party defendant submitted the plaintiff's medical records which stated that the amputation extended "through the proximal interphalangeal joint." The closest remaining joint is the metacarpophalangeal joint in the hand. The wound healed, leaving a "painful amputation stump" requiring two corrective surgeries. In the first surgery, the digital nerve was allowed to retract into the palm of the hand and nerve tissue was removed. The second surgery involved dissection and transection of nerve tissue.

The plaintiff's unrefuted deposition testimony was that he asked doctors treating his injury to reattach the finger, but the doctors refused on the ground that where he "had been cut, there was a lot of crossing of nerves," and if the finger was reattached "it was going to be stiff, straight and without any feeling." In the opinion of a physician retained by the defendant third-party plaintiff, the plaintiff suffered "100% loss of function of [the plaintiff's] left index finger."

In the order appealed from, the third-party defendant's motion for summary judgment was "denied in all respects," citing the opinion of 711 Group's physician that the plaintiff suffered a 100% loss of function of the left index finger.

The enumerated grave injury in issue is "loss of an index finger" (Workers' Compensation Law § 11). Whether the plaintiff suffered a "loss of use" of his index finger is not one of the statutory criteria (see Castro v United Container Mach. Group, 96 NY2d 398, 401).

The third-party defendant contends that since the plaintiff retains a "painful left index finger amputation stump" which required two surgeries to desensitize, he "sustained a partial, rather than a full" loss of index finger, citing Castro v United Container Mach. Group, supra. We disagree.

By chapter 635 of the Laws of 1996, Workers' Compensation Law § 11 was amended to limit a tortfeasor's right to common-law indemnity or contribution against the plaintiff's employer in a personal injury action to cases where the "the plaintiff seeks relief for a statutorily denominated and enumerated grave injury'" (1996 Legis Ann 460). The enumerated grave injuries were "deliberately both narrowly and completely described. The list is exhaustive, not illustrative" (id.).

The Court of Appeals stated that that statutory language should be "sensibly" read "without resort to forced or unnatural interpretations" (Castro v United Container Mach. Group, supra at 401). Further, in interpreting the statutory language, the "guiding principle is, of course, to implement the intent of the Legislature - in this case to narrow tort exposure for employers while also protecting the interest of injured workers - by considering both the language used and objects to be accomplished" (Rubeis v Aqua Club, Inc., 3 NY3d 408, 417).

Unfortunately, the statutory language contains no definitional provisions. The definitions set forth in Workers' Compensation Law § 15 are not applicable (see Castro v United Container Mach. Group, supra at 401, n 2).

The index finger consists of three phalanges: the proximal phalanx closest to the hand and the middle and distal phalanges. The joint between the proximal and middle phalanges is called the proximal interphalangeal or "PIP" joint, and the joint between the middle and distal phalanges is called the distal interphalangeal or "DIP" joint (see Stedman's Medical Dictionary 1176 [25th Ed 1990]).

Consistent with the analysis that the words should be afforded their plain meaning, the Court of Appeals found that "[a]s a matter of standard English usage, the word finger' means the whole finger, not just its tip" (Castro v United Container Mach. Group, supra at 401; see Meis Trust v ELO Org., 97 NY2d 714). However, the question here is whether the loss of both interphalangeal joints and the PIP joint, leaving a "painful amputation stump" constitutes loss of the finger.

This court has held that loss of half the index finger is insufficient to establish "grave injury" (see Blackburn v Wysong & Miles Co., 11 AD3d 421). In that case, the plaintiff's index finger was amputated at the base of the middle phalanx, leaving him with a proximal interphalangeal joint. Similarly, in Mentesana v Bernard Janowitz Constr. Corp. (36 AD3d 769), this court held that a partial amputation of the index finger to the level of the proximal interphalangeal joint did not constitute loss of the index finger.

In the instant case, the plaintiff has lost both interphalangeal joints of the index finger. In view of the foregoing, it is our determination that the plaintiff has suffered the loss of his index finger.

This interpretation is consistent with definitions in other jurisdictions which define loss of finger strictly as the loss of more than two phalanges (see Code of Alabama § 25-5-57[a][3][7]; Kansas Stat Ann § 44-510d[a][6]; Ohio Revised Code § 4123.57[B]; Louisiana Rev Stat § 23:1221[4][l]), as distinguished from the more liberal definition of loss of finger as loss of more than one phalange (see e.g. 33 USC § 908[c][14]; Workers' Compensation Law § 15[3][n]). The third-party defendant's contention that the "painful amputation stump" that remains precludes a finding that the plaintiff has suffered a loss of his index finger constitutes a forced and unnatural interpretation of the statutory language. The existence of the "painful amputation stump" underscores the seriousness of the plaintiff's disability (see Thibldeaux v W. Horace Williams Co., 14 So2d 320 [La][loss of index finger leaving "painful amputation stump" constitutes total disability]).

Thus, the order is affirmed, and upon searching the record, the plaintiff and 711 Group are awarded partial summary judgment on the issue of whether the plaintiff suffered a grave injury.
CRANE, J.P., LIFSON and CARNI, JJ., concur.

ORDERED that the order is affirmed, with costs, and upon searching the record, the plaintiff and the defendant third-party plaintiff are awarded partial summary judgment on the issue of whether the plaintiff suffered a grave injury.

In the Matter of Government Employees Insurance Company v. Young

DECISION & ORDER

 

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for underinsured motorist benefits, John Young, Gerard Rouse, Ken Rouse, and Bernard Jones appeal from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated May 24, 2006, which granted the petitioner's motion for leave to reargue, and upon reargument, in effect, granted the petition.

ORDERED that the order is affirmed, with costs.

On June 25, 2000, the appellants were involved in an automobile accident with a motor vehicle insured by the proposed additional respondent Infinity Insurance Company (hereinafter the tortfeasors' insurer). After the appellants reached a settlement with the tortfeasors' insurer and received the total sum of $50,000, representing the limits for bodily injury liability under the tortfeasors' policy, the appellants made a demand for arbitration under the endorsement for supplementary uninsured/underinsured motorist benefits (hereinafter SUM or the SUM endorsement) of a policy issued by the petitioner to nonparty Gail D. Young (hereinafter the GEICO policy). The SUM endorsement of the GEICO policy was written with a single policy limit for uninsured/underinsured motorist of $25,000/$50,000 for each person/each occurrence. The GEICO policy limits for bodily injury liability were also in those amounts.

Contrary to the appellants' contention, the SUM endorsement of the GEICO policy which incorporated the precise requirements for SUM coverage mandated by 11 NYCRR 60-2.3 including, but not limited to, the offset provision, i.e., condition number 6 of the standard form prescribed under 11 NYCRR 60-2.3(f), was not ambiguous and misleading (see Matter of Allstate Ins. Co. [Stolarz] New Jersey Mfrs./Ins. Co., 81 NY2d 219, 224; Matter of State Farm Mut. Auto. Ins. Co. v Bigler, 18 AD3d 878, 879; Matter of Graphic Arts Mut. Ins. Co. [Dunham], 303 AD2d 1038). Pursuant to the offset provision, the petitioner properly offset the $50,000 received by the appellants from the tortfeasors' insurer against the SUM limits under the GEICO policy, thereby precluding any recovery under the SUM endorsement (see 11 NYCRR 60-2.1[c]). Moreover, since the tortfeasors' policy limits for bodily injury liability were identical to the GEICO policy limits for bodily injury liability, the tortfeasors' vehicle was not underinsured (see Insurance Law § 3420[f][2][A]; Matter of Prudential Prop. and Cas. Co. v Szeli, 83 NY2d 681, 685; Matter of Allstate Ins. Co. v DeMorato, 262 AD2d 557; Matter of Automobile Ins. Co. of Hartford Conn. v Stillway, 165 AD2d 572, 575).

In the Matter of State Farm Mutual Automobile Insurance Company v. Russell

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an underinsured motorist claim, the petitioner appeals from a judgment of the Supreme Court, Queens County (Rios, J.), entered July 13, 2006, which, upon a decision of the same court dated April 20, 2006, made upon stipulated facts in lieu of a hearing, denied the petition and directed the parties to proceed to arbitration.

ORDERED that the judgment is reversed, on the law, with costs, the petition is granted, and the arbitration is permanently stayed.

The petitioner issued a New York State automobile insurance policy (hereinafter the policy) to Esmie Robinson. The policy's declarations page listed Robinson as the named insured, and her address as "452 Miller Avenue, Brooklyn NY." The petitioner concedes that the policy covers Donovan Russell (hereinafter Donovan) for purposes of "coverage S: death, dismemberment and loss of sight." Donovan is Robinson's brother and the father of the respondent, Keon Russell. It is undisputed that both Russells reside together in Brooklyn, but not with Robinson.

A renewal letter sent by the petitioner to Robinson indicated that Donovan was the only licensed driver reported to it. That letter also stated that the listing was "for informational purposes only and does not extend or expand coverage beyond that contained in this automobile policy."

The policy also contained a New York State uninsured motorist endorsement (hereinafter the UM coverage), which defined an insured as, inter alia:
"1. You, as the named insured and, while residents of the same household, your spouse and the relatives of either you or your spouse; (2) Any other person while occupying: (i) A motor vehicle owned by the named insured or, if the named insured is an individual, such spouse . . . or (ii) Any other motor vehicle while being operated by the named insured or such spouse."

On May 21, 2000, the respondent was involved in an automobile accident with an uninsured vehicle while driving a car owned by Philippia Authurs. Thereafter, the respondent made an uninsured motorist claim under the policy's UM coverage and subsequently demanded arbitration thereunder. In response to the petition seeking to stay the arbitration, the respondent asserted that Donovan, his father, was a named insured under the policy. Alternatively, he contended that the policy created an ambiguity as to his father's status, and that this ambiguity had to be resolved against the petitioner by rendering Donovan an additional insured under the policy. In either case, since he, the respondent, lived with his father, he was also entitled to full benefits under the policy.

Upon our remittal to the Supreme Court, Queen County, for a hearing (see Matter of State Farm Mut. Auto Ins. Co. v Russell, 1 AD3d 371), that court determined that the declarations page listed Donovan, the respondent's father, as " the only licensed driver reported to [the petitioner].'" Relying on Kennedy v Valley Forge Ins. Co. (203 AD2d 930, affd 84 NY2d 963), the Supreme Court concluded that that listing of Donovan as a licensed driver created a policy ambiguity as to his status, which had to be construed against the petitioner. The court reasoned that this rendered Donovan a named insured and, since the respondent lived with Donovan, the respondent also was a covered person for purposes of the UM coverage. The court denied the petition and directed the parties to proceed to arbitration. We reverse.

Contrary to the Supreme Court's determination, the policy's declarations page does not list Donovan as the only licensed driver reported to it; that is in the petitioner's renewal notice. Such a listing, as opposed to being named as the only licensed driver in the body of the policy itself, did not create any ambiguity in the policy which would render him an additional insured based upon that alone (cf. Kennedy v Valley Forge Ins. Co., supra).

Furthermore, the policy's declarations page clearly lists Robinson as the only insured. The policy itself proceeds to define who is an insured based upon the familial relationship with the named insured, and further conditions that status as an insured upon the relative's residing with the named insured.

Here, it is undisputed that neither Donovan nor the respondent resided with Robinson, the policy's sole named insured. That Donovan was also insured for "coverage S" under the policy did not, without more, provide him with the full panoply of benefits accorded a named or additional insured under the policy. Accordingly, since Donovan was not a named or additional insured, the respondent did not come within the definition of an insured in the UM coverage and is not entitled to uninsured motorist coverage (see Matter of Horowitz v State Farm Mut. Auto. Ins. Co., 248 AD2d 471). Therefore the petition to permanently stay arbitration should have been granted.