Coverage Pointers - Volume VIII, No. 3

Dear Coverage Pointers Subscribers:

 

Ten days ago, I was honored to assume the position of President of the Federation of Defense & Corporate Counsel while at our Annual Meeting. For more information. Why is that important to you?  It places our firm among the forefront of those in the nation fighting for a level playing field in civil justice, serving the insurance industry and our corporate clients on a national level and making certain that we are constantly at the top of our game. Our goal is to provide you the highest quality representation, always at the cutting edge, working with great lawyers and claims professionals throughout the United State, Canada and the world.

 

Why else is it important?

 

Please remember that through our contacts in organizations such as the FDCC, Harmonie, the DRI and others, our office has the capability of helping you find competent, vetted and able counsel anywhere in the United States, Canada and through most of the world.  So, if you need a lawyer anywhere, from California to Calgary, from Texas to Toledo, from London to Las Vegas, just call us and ask for a referral and we'll help you find who and what you need.

 

One of our loyal readers asked us to add page numbers to our bi-weekly offering, and we're happy to do so.  This being an August issue, with the Court of Appeals on summer recess and other appellate courts working a lighter schedule, this week's issue offers fewer cases than many of the issues during the year. 

 

But that request did get me thinking, and made me feel quite wealthy. 

 

As you know, these issues are sent out electronically.  We don't send anyone, anywhere, a paper copy of this publication, although we do know that many are printed by the subscribers and passed around.

 

It did get me thinking - how many pages of material have we sent to our subscribers in the past twelve months?  I went back and ran some statistics, using a scientific method known as "educated guessing" (only one small step above speculation and surmise), and determined that our average issue of Coverage Pointers runs about 40 pages in length (this one is about 25).  Had we sent those issues out last year, by mail, to our subscribers, we would have mailed out 1,404,000 sheets of paper. The paper cost would have been $9,912.24 and postage for the year would have totaled $26,208.  We won't count the cost of ink and envelopes and staff time.  However, I do feel wealthy with all the money I've saved.

 

This week's attached issue includes NY appellate court cases on the following topics as well as Audrey's Angles on No Fault and our Cross-Borders column:

 

·        Where Auto Exclusion in CGL Policy Excludes Coverage, It Makes No Different That Another Exclusion Does Not
 

·        Failure to Preserve Vehicle for Inspection Leads to Denial of Motion for Summary Judgment
 

·        Property Carrier Burned in Fire Case.  When Insured Lost Lawsuit Against Entity it Claimed Caused Fire, Subrogation Action Making Same Claims Goes Up in Smoke
 

·        IME Deficiencies Coupled with Plaintiff's Testimony of Disability Sufficient to Withstand Motion
 

·        Accident-Prone Plaintiff Does Not Prove Serious Injury.  Four Plaintiff's Doctors, Only One Mentions her Substantial Prior Medical History
 

·        Tuna Claim is Fishy.  Treating Physician's Affirmation 19 Months After Last Treatment Cannot Carry the Day
 

·        Cut off at the Knees, Defendants Fail to Meet their Burden

 

All the best.

 

Dan

Dan D. Kohane
E-Mail:  [email protected]

8/8/06             Ruge v. Utica First Insurance Company

Appellate Division, Second Department

Where Auto Exclusion in CGL Policy Excludes Coverage, It Makes No Different That Another Exclusion Does Not

Auto exclusion in contractor's policy was operative to deny coverage under that policy for van accident with bus.  The van was carrying piping material in roof rack and pipe entered bus, causing death of driver.  The fact that there was a "loading and unloading" exception to the "transportation of property" excusion in products-completed operation hazard, doesn't alter the fact that the auto exclusion removed coverage for the claim. "Exclusions in policies of insurance must be read seriatim, not cumulatively, and if any one exclusion applies there can be no coverage since no one exclusion can be regarded as inconsistent with another"

 

8/8/06              Scherer v. North Shore Car Wash Corp.,

Appellate Division, Second Department

Failure to Preserve Vehicle for Inspection Leads to Denial of Motion for Summary Judgment

Interesting case.  Car owner brings car into car wash.  Employee of car wash strikes pedestrian with car.  Action brought against owner who is responsible because he is an owner and Section 388 of the Vehicle & Traffic Law imposes vicarious liability on him.  Then the owner brought an action against the car wash employee and the car wash, suggesting that they must indemnify him because he is only vicariously liable as absentee owner.  Turn out that insurer for car wash had made several demands that car be preserved for an inspection because driver/employee claimed that there was a problem with the brakes on the car.  Insurer for car owner refused to preserve the car for inspection and refused to allow car wash insurer to inspect it before it was repaired.  Because of those refusals, motion by owner of car for summary judgment against driver and car wash was denied.  Basically, car owner and its insurer were being sanction for failing to preserve the evidence when duly demanded and thus precluding the car wash insurer for conducting an effective investigation into its defense.

 

7/27/06            Lumbermens Mutual Casualty Company v. 606 Restaurant, Inc.

Appellate Division, First Department

Property Carrier Burned in Fire Case. When Insured Lost Lawsuit Against Entity it Claimed Caused Fire, Subrogation Action Making Same Claims Goes Up in Smoke

Lumberman’s insured, MicFib’s and 606 Restaurant were defendants in a fire loss case.  In the underlying action, the jury found that 606 Restaurant was not liable for the fire.  In the subrogation action, 606 amended its answer to include a collateral estoppel defense as to Lumberman’s subrogation claim againt it.

The Court finds that Lumbermens was clearly in privity with its insured, MicFab's, and was basically seeking to try the same case again, albeit with different damages, against 606 Restaurant. Lumbermens certainly had a full and fair opportunity to contest the issue of 606 Restaurant's liability before the jury in the underlying action, but declined to do so. Although MicFab's had settled with Inwood Security months before the trial, codefendant 606 Restaurant had not settled, and thus there were active cross claims against MicFab's during the trial. Despite the fact that Lumbermens filed its complaint in the subrogation action about 18 months before the Inwood Security trial, Lumbermens never moved to intervene in the Inwood Security actions, and it never moved to consolidate the subrogation action with those other actions, despite the fact that it could have done so and then argued its theories of liability before the jury. It chose instead to stand on the sidelines and permit the other defendants to be “its stalking horses”, thus making a strategic choice not to join the actions and to conduct little or no discovery in this subrogation action prior to trial.

The doctrine of collateral estoppel should have been applied to bar Lumbermens' present subrogation claim against 606 Restaurant.

 

The Serious (Injury) Side of New York No-Fault

 

8/3/06              Horton v. Warden

Appellate Division, Third Department

IME Deficiencies Coupled with Plaintiff’s Testimony of Disability Sufficient to Withstand Motion

Defendant's principal argument on appeal -that plaintiff's prior accident and preexisting degenerative condition raised issues of fact concerning causation and serious injury- were found to be meritless. The Court finds that the IME report did not contain a numerical quantitative assessment and it did not contain the doctor's findings on his neurological examination that "[s]pinal and truncal motion markedly limited because of pain and the expected restriction imparted by the anterior and posterior lumbar fusion instrumentation. Moreover, the record contained plaintiff's testimony that, prior to the accident, she was employed as a licensed practical nurse in a nursing home and that, since the accident, she was on disability and was still unable to return to her employment. The Court holds that the record “amply demonstrates that plaintiff has suffered a medically significant injury as a result of this accident and that her limitations are not so "minor, mild or slight" as to be considered not serious within the meaning of Insurance Law § 5102 (d).

 

8/3/06              Style v. Joseph

Appellate Division, First Department

Accident-Prone Plaintiff Does Not Prove Serious Injury.  Four Plaintiff’s Doctors, Only One Mentions her Substantial Prior Medical History

Defendant bore the initial burden of setting forth a prima facie case that the injuries sustained by plaintiff are not "serious”. Based upon multiple objective tests performed during his examination of plaintiff, defendant's expert affirmed that plaintiff has normal range of motion in her cervical and lumbar spine and both shoulders. This expert also affirmed that plaintiff suffered no disabilities as a result of the subject accident. Therefore, defendant satisfied his initial burden on the motion, notwithstanding the existence of MRI reports indicating that plaintiff had herniated or bulging discs.
 

Plaintiff was involved in two accidents prior to the accident that resulted in injuries relevant to this action. In 1991, plaintiff injured her back in a workplace accident that required her to stop working as a nurse's aide and led to her receipt of workers' compensation benefits. Plaintiff also injured her neck, back and right shoulder in a 1997 automobile accident. As a result of these preexisting injuries, plaintiff experienced pain in her back and neck, was no longer able to work and found her ability to perform many activities curtailed (e.g., walking, maintaining her home).

Where, as here, plaintiff sustained injuries as a result of accidents or incidents that preceded the accident giving rise to the litigation, plaintiff's expert must adequately address how plaintiff's current medical problems, in light of her past medical history, are causally related to the subject accident.  This she failed to do. Of the four experts whose affirmations plaintiff submitted in opposition to the motion, only one mentioned plaintiff's medical history.

 

8/3/06              Tuna v. Babendererde

Appellate Division, Third Department

Tuna Claim is Fishy. Treating Physician’s Affirmation 19 Months After Last Treatment Cannot Carry the Day

Defendant's submission adequately demonstrated that, although plaintiff sought medical attention for various complaints of pain in the months following the accident, there was no objective evidence of physical injury caused by the accident. X rays, MRIs, and bone scans performed at various times in the six months following the accident revealed no objective medical evidence of a traumatic injury to her neck, shoulder or hip, and electrodiagnostic tests yielded results within normal limits.

 

Plaintiff relied on a treating physician’s affirmation and her own affidavit. Her doctor’s affirmation was not sufficient to raise an issue of fact on the permanent consequential limitation category because he noted "some signs of improvement," and his opinion that she is permanently disabled was not rendered until approximately 19 months after his last examination of her, but he does not provide an explanation for the cessation of plaintiff's treatment. He also failed to set forth specific limitations to plaintiff's ranges of motion or tests that were not dependent upon plaintiff's subjective complaints.

 

8/1/06              Russo v. Ross

Appellate Division, Second Department

Cut off at the Knees, Defendants Fail to Meet their Burden
Defendants' examining orthopedist stated that there was "full range of motion," in the plaintiff’s knees and the defendants' examining neurologist, who examined, among other things, the plaintiff's cervical spine, merely stated in his affirmed medical report that the cervical spine had "full range of motion." These experts failed, however, to set forth the objective test or tests performed at arriving at the conclusions that the plaintiff had full range of motion of both knees and the cervical spine. Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law in the first instance on the threshold issue of serious injury, it is unnecessary to reach the question of whether the plaintiff's papers were sufficient to raise a triable issue of fact.

 

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. We kindly request that you omit the Applicant’s and Respondent’s name as well as counsel’s name upon submission to us.

 

8/7/06  In the Matter of the Arbitration between the Applicant and Respondent

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

30 Day Notice To Insurer Is Measured From Accident Date And Not Date Of Injury.

 

Here is the Angle:  The eligible injured person was involved in a motor vehicle accident in February 2004.  He contacted the insurer the same day of the accident to advise of the accident.  He did not feel he had any injuries and did not treat until August 2004.  The insurer denied all benefits based upon late notice since the eligible injured person did not provide notice of any injuries within 30 days of the accident.  The arbitrator held that the measurement whether notice is provided of the accident within 30 days from it occurring and not injuries.

 

The Analysis:  The insurer denied the eligible injured person (“EIP”) no-fault benefits on the basis that he failed to provide notice within 30 days from the accident as required by 11 NYCRR §65-1.

 

The EIP was involved in a February 22, 2004, motor vehicle accident in Florida.  The same day the EIP contacted the insurer and notified it of the accident.  The insurer sent the requisite no-fault forms two days later and acknowledged notice of the accident.

 

The EIP, believing he was not injured, never filed a claim or sought medical attention.  He did file a claim for health services his wife provided.

 

In August 2004, when the EIP returned to New York he first sought medical treatment with Dr. Suddaby.  Dr. Suddaby’s report indicated that the EIP was involved in a motor vehicle accident and felt some stiffness.  However, a week after the accident the EIP had dizziness and numbness in right arm and right leg.  There was also noted weakness in the right arm and right leg.  Dr. Suddaby’s impression was that the EIP had cervical spondylitic myelopathy.  Dr. Suddaby opined that the spinal cord edema suggested that the spinal cord received trauma as a result fo the Feburary 2004, motor vehicle accident.  Dr. Suddaby recommended spinal cord decompression to prevent any further damage. 

 

On August 11, 2004, the EIP returned his completed application for no-fault benefits.  The insurer issued a series of denials, which Arbitrator McCorry found improper, based upon failure to notify the insurer of the accident within 30 days after the date of the accident.  More the insurer’s denial specifically stated:

 

“Notice”.  In the event of an accident, written notice setting forth details sufficient to identify the eligible injured person, along with reasonably obtainable information regarding the time, place and circumstance of the accident shall be given in no event more than 30 days after the date of the accident….”  Eligible injured person failed to provide written notice within 30 days.  Therefore, ALL NO FAULT BENEFITS ARE DENIED.  LATE NOTICE WILL BE EXCUSED IF APPLICANT CAN PROVIDE REASONABLE JUSTIFICATION IN WRITING OF THE FAILURE TO GIVE TIMELY NOTICE.

 

Arbitrator McCorry found that the EIP provided timely written notice of the time, place, and circumstance of the accident within 30 days.  He rejected the insurer’s argument that the notice that injuries were sustained must be given within 30 days.  Further, again adhering the basis stated for the denial, Arbitrator McCorry acknowledges that the EIP’s condition could have been attributed to a prior cervical spine surgery or other unspecified event or condition.  However, the denial explicitly stated that the basis was upon late notice.  Accordingly, the denial was found to be improper.

 

8/4/06  In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Mary Anne Theiss, Esq. (Erie County)

Yet Another Notice Case – Evidence of Submitting The Application Within Parameters Of Old Regulation; Lack Of Fraud; And Notice Of Injuries Excuse Delay.

 

Here is the Angle:  The eligible injured person has 30 days from the date of the accident to submit her application for benefits.  Here, she submitted it 75 days after the accident due to what appears to be inattention between herself or counsel on getting the application in.  Arbitrator Theiss held there was reasonable justification for the delay as the insurer had notice of the accident and injuries; there was no evidence of fraud; and the application was submitted within the timeframe set under the old regulation.

 

The Analysis:  On June 18, 2005, the eligible injured person (“EIP”) was involved in a two car motor vehicle accident.  Either that day or the following day the EIP notified the insurer of the accident.  On June 21, 2005, the insurer sent the requisite no-fault forms.  The EIP claimed she filled them out and provided them to her attorney to submit on her behalf.

 

The insurer contacted the EIP to advise that the forms were never returned and sent her another set of forms on July 25, 2005.  The EIP contacted her attorney and was told to hold the forms as he would call her back.  The EIP contacted her attorney multiple times and he never responded.  The EIP was under the impression that her forms were mailed by counsel.  On July 25, 2005, the insurer also sent correspondence to the EIP’s counsel indicating that the claim was denied for failure to complete the requisite forms. 

 

On July 25, 2005, the EIP’s attorney contacted the insurer advising of representation.  The insurer sent counsel a delay letter notifying the claim was delayed pending receipt of the no-fault application for benefits

 

On August 3, 2005, the insurer spoke with the EIP’s counsel’s office informing the insurer that the application would be sent to the EIP as soon as possible.

 

On August 9, 2005, the insurer contacted counsel and left a message indicating that the application had still not been received.  On August 11, 2005, the insurer spoke with the EIP who advised she had not received the forms the insurer sent to counsel.  The EIP also divulged she contacted her attorney multiple times with no response.  On August 24, 2005, the insurer contacted counsel advising that the insurer still had not received the forms.  On August 26, 2005, the insurer contacted counsel against advising that if the forms were not submitted that day they would not accept them.  The insurer was informed that the EIP would come into counsel’s office to fill them out then send them to the insurer.

 

The EIP testified that at the end of August the attorney contacted her to advise her to drop off the forms.  On August 29, 2005, the insurer issued a denial to the EIP and her counsel on the ground that she failed to timely submit her application for benefits.  On August 31, 2005, the application was submitted to the insurer via facsimile, incomplete.  Moreover, the EIP failed to sign the section authorizing release of medical records.

 

However, medical bills were submitted by three providers and never denied on the basis of late notice.  Arbitrator Theiss found that the denials indicate that the examiner was conducting a review and never indicated that the claim would be denied.

 

Arbitrator Theiss, initially citing to the old 90 day rule, then indicating that the new rule is 30 days notes that here the EIP submitted her application within 73 days from the date of the accident.  Moreover, the EIP did not appear to be committing fraud in the delay.  Further, Arbitrator Theiss notes that the insurer received medical records from the hospital indicating there was a motor vehicle accident and the injuries sustained.  Thus the 73 day delay was justified.

 

7/27/06            In the Matter of the Arbitration between the Applicant and Respondent

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

Top Of The Line Spa Awarded To Applicant For Injuries Sustained 22 Years Earlier In Accident.

 

Here is the Angle:  The eligible injured person was awarded the cost of a top of the line, five person spa, as treatment for injuries she allegedly sustained 22 years earlier in a motor vehicle accident.  It is noted that the award mentions that the insurer paid on the claim for 22 years with no denials.  Moreover, the full amount of the spa was awarded, even though it was found to be an abuse of the system, due to the insurer’s failure to submit evidence of a less expense model at the time the eligible injured person purchased the spa.

 

The Analysis:  The eligible injured person (“EIP”) sought reimbursement for a top of the line spa she purchased to treat her for injuries allegedly sustained from a motor vehicle accident 22 years ago.

 

The EIP was involved in a November 30, 1984, motor vehicle accident wherein she sustained chronic lumbar strain with underlying spondylolisthesis at L5/S1.  Throughout the 22 years after the accident she underwent physical therapy, body casting, botox, and other types of non-steroidal anti-inflammatory medications.  Interestingly, the insurer paid for benefits during the 22 year period in the amount of $41,967.93.  The insurer’s last payment was in February 2006, on this claim.

 

The insurer denied the claim for a top of the line spa/hot tub on the basis of a peer review by Dr. Ravi Tikoo who opined that there was no evidence of injuries related to this accident 22 years ago warranting this spa.

 

The EIP submitted medical records from her treating neurologist, Dr. William Gooch, who opined that the spa would be reasonable as the EIP responded when heat was utilized.  It is noted that physical therapy and medications were of no benefit.

 

Arbitrator O’Connor found the insurer’s denial to be improper as the treating neurologist opined that the spa was warranted as well as the fact that the insurer had been paying on the claim for 22 years.

 

While Arbitrator O’Connor was troubled that the EIP purchased a top of the line, five person spa at the cost of $5,858.49, she stated:

 

I must, unfortunately, award the Applicant the full amount of her claim.  While I believe this claim to be excessive and abusive, the Respondent’s submission failed to contain adequate documentation to support a reduction of the Applicant’s claim.  No evidence was submitted to identify a specific appropriate substitute hot tub/spa that was available at the time of the Applicant’s purchase.

 

 

 Across Borders

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

Benchmark Ins. Co. v. Atchison
Automobile Liability Insurance: No Bad Faith Under Kansas Law When Insurer Files Interpleader Action and Because Insurer Owes No Duty to Third-Party Claimant
Kansas Court of Appeals
Candi Atchison was insured under an automobile policy issued by Benchmark Insurance Company (“Benchmark”) with liability limits of $25,000 per person and $50,000 per accident. While driving with four passengers, Atchison was involved in an accident. One passenger died and the other three were severely injured, so that Atchison’s liability far exceeded the $50,000 aggregate for the death and injuries. One of the injured passengers, Kayla Mell, demanded from Benchmark the $25,000 per person limit for her injuries. Benchmark responded by filing an interpleader action to determine how the $50,000 should be allocated amongst the passengers. Mell answered, alleging that Benchmark acted negligently and in bad faith by failing to accept the $25,000 demand. Benchmark moved for summary judgment on the grounds that it did not act negligently or in bad faith because it followed the procedure previously set forth by the Kansas Supreme Court by filing the interpleader action. The trial court granted summary judgment in Benchmark’s favor, and the Kansas Court of Appeals affirmed. Benchmark owed Mell no duty to settle because Mell was a third-party claimant, not the insured under the policy, and there was no evidence that Atchison had assigned any claims to Mell.

Submitted by: Bruce D. Celebrezze, Esq. & Jamison R. Narbaitz, Esq. of Sedgwick, Detert, Moran & Arnold LLP

 

Keystone Consolidated Industries, Inc. v. Employers Ins. Co. of Wausau
General Liability Insurance: Under Illinois Law, an Insurer May Have a Duty to Indemnify Its Insured Even Absent a Duty to Defend
Seventh Circuit Courrt of Appeals
Keystone Consolidated Industries, Inc. (“Keystone”) was insured under dozens of general liability and excess umbrella policies issued by Employers Insurance Company of Wausau (“Wausau”) from 1942 through the late 1980s. Keystone sought indemnification from Wausau for approximately $13.5 million in costs incurred in cleaning up groundwater and other contamination resulting from consent decrees entered into with the United States Environmental Protection Agency and Illinois Environmental Protection Agency. Wausau refused to indemnify Keystone on the theory that the policies require indemnification only when a lawsuit triggers its duty to defend. The district court agreed with Wausau and granted its motion for summary judgment, concluding that Illinois law requires the filing of a formal complaint in a court of law to trigger the duty to defend under a general liability policy, and that where there is no duty to defend, there can be no duty to indemnify. The Seventh Circuit reversed the district court’s ruling. Under Illinois law, an insurance policy may entitle the insured to indemnification for claims that do not arise from the resolution of a lawsuit, as long as the claims satisfy any requirements set forth in the relevant policy provisions. The language of the Wausau policies arguably supported a conclusion that Wausau has a duty to indemnify that is independent of its duty to defend.

Submitted by: Bruce D. Celebrezze, Esq. & Jamison R. Narbaitz, Esq. of Sedgwick, Detert, Moran & Arnold LLP

 

 

 

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

Newsletter Editor

Scott C. Billman
[email protected]

 Insurance Coverage Team

Dan D. Kohane, Team Leader
[email protected]

Michael F. Perley
Scott C. Billman
Audrey A. Seeley

Vivian Perry Roché

Fire, First-Party and Subrogation Team

Andrea Schillaci, Team Leader
[email protected]

Jody E. Briandi
Philip M. Gulisano

No-Fault/SUM Arbitration Team

Dan D. Kohane, Team Leader
[email protected]

Audrey A. Seeley

Appellate Team
Scott C. Billman, Team Leader
[email protected]

Dan D. Kohane

Scott M. Duquin

 

 

 

Russo v. Ross
 

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Weiss, J.), dated August 23, 2005, as granted the motion of the defendant Arlene Ross, and that branch of the separate motion of the defendants Daniel Correa and Jose I. Correa, which were 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).

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, the motion of the defendant Arlene Ross, and that branch of the motion of the defendants Daniel Correa and Jose I. Correa which was 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) are denied, and the complaint is reinstated.

The defendants failed to satisfy their prima facie burden of showing that the plaintiff [*2]did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). The defendants' examining orthopedist, who examined, inter alia, the plaintiff's knees, merely stated in his affirmed medical report that there was "full range of motion," and the defendants' examining neurologist, who examined, among other things, the plaintiff's cervical spine, merely stated in his affirmed medical report that the cervical spine had "full range of motion." These experts failed, however, to set forth the objective test or tests performed at arriving at the conclusions that the plaintiff had full range of motion of both knees and the cervical spine (see Nembhard v Delatorre, 16 AD3d 390; Black v Robinson, 305 AD2d 438). Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law in the first instance on the threshold issue of serious injury, it is unnecessary to reach the question of whether the plaintiff's papers were sufficient to raise a triable issue of fact (see Nembhard v Delatorre, supra; Coscia v 938 Trading Corp., 283 AD2d 538).
MILLER, J.P., RITTER, LUCIANO, SPOLZINO and DILLON, JJ., concur.
 

Lumbermens Mutual Casualty Company v. 606 Restaurant, Inc.

 

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered October 7, 2005, which, to the extent appealed from as limited by the briefs, denied the motion of defendant 606 Restaurant for summary judgment dismissing the complaint on grounds of collateral estoppel, unanimously reversed, on the law, with costs, the motion granted and the complaint dismissed as against 606 Restaurant. The Clerk is directed to enter judgment accordingly.

Collateral estoppel precludes a party from re-litigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity (see Buechel v Bain, 97 NY2d 295, 303 [2001], cert denied 535 US 1096 [2002]; Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). "Two requirements must be met before collateral estoppel can be invoked. There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling. The litigant seeking the benefit of collateral estoppel must demonstrate that the decisive issue was necessarily decided in the prior action against a party, or one in privity with a party. The party to be precluded from re-litigating the issue bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination" (Buechel v Bain, supra, 97 NY2d at 303-304, citations omitted).

As stated by the Court of Appeals in Watts v Swiss Bank Corp. (27 NY2d 270, 277 [1970]), [*2]

[T]he term privity does not have a technical and well-defined meaning. It denominates a rule, however, to the effect that under the circumstances, and for the purposes of the case at hand, a person may be bound by a prior judgment to which he was not a party of record. It includes those who are successors to a property interest, those who control an action although not formal parties to it, those whose interests are represented by a party to the action, and possibly coparties to a prior action . . . The character and extent of the participation in litigation which will in legal effect make one a party is most often an issue of fact. As a consequence, no single fact is determinative but all the circumstances must be considered from which one may infer whether or not there was participation amounting to a sharing in control of the litigation [citations omitted].

Application of the foregoing principles to the facts of this case clearly requires that the doctrine of collateral estoppel should have been applied to bar Lumbermens' present subrogation claim against 606 Restaurant. The motion to dismiss the complaint as against 606 Restaurant should have been granted.

The facts and the procedural background of this action are not in dispute, the only question being whether plaintiff insurer should be collaterally estopped from bringing this action as subrogee of its insured, which was a party to a previous action in which a jury found that 606 Restaurant was not liable to another similarly situated party.

Plaintiff's subrogor (MicFab's Foods d/b/a McDonalds) and 606 Restaurant d/b/a Mi Pequena Espana are adjacent tenants in a row of stores owned by defendant Broadway 207 Realty Corp. On November 25, 1999, a fire allegedly started in Mi Pequena Espana and spread to the adjacent McDonalds, causing extensive damage and loss of income for which plaintiff insurer, Lumbermens Mutual Casualty Company, paid MicFab's $1,277,981.70. In January 2000 another tenant in the premises, Inwood Security Alarm, and its insurer, Tower Insurance Company, commenced subsequently consolidated actions against the landlord (Broadway 207), MicFab's and 606 Restaurant, alleging that the fire had started either in Mi Pequena Espana or McDonalds and spread to Inwood Security's premises. Inwood Security sought $200,000 from MicFab's for property damage and $20,000 per month for lost business. Tower sought the $34,500 it paid Inwood Security for damage to its inventory and equipment as a result of the fire. Each of the defendants answered and asserted cross claims against the others. In November 2002, Lumbermens, as MicFab's subrogee, commenced this action against 606 Restaurant and Broadway 207, asserting, as relevant to this appeal, that the fire was caused by 606 Restaurant's negligence. 606 Restaurant cross-claimed against Broadway 207 for indemnification and counterclaimed against Lumbermens and MicFab's based upon the latter's negligence in maintaining its premises.

The Inwood Security actions were initially based upon the Fire Marshal's report, which indicated that the fire originated in McDonalds and that the cause of the fire was "probably heat from electrical Bx cable." However, during the course of discovery, MicFab's produced two expert reports which indicated that the fire was not caused by the electrical system, but most likely by pyrolysis (heat transfer) resulting from the installation of a grill hood duct too close to the wood joints in the wall of 606 Restaurant's premises. One of MicFab's experts stated that the fire originated within 606 Restaurant and was caused by the heating and eventual ignition of the wall adjacent to the grill duct located at the northwest corner of the restaurant. [*3]

Prior to the April 2004 trial of the Inwood Security actions, MicFab's, which was represented by counsel retained by its liability insurance carrier, settled with plaintiff Inwood Security and, as part of the settlement, Inwood Security was permitted to use MicFab's expert. In late April 2004, the Inwood Security actions went to trial, at which time, Tower Insurance, but not Broadway 207 and 606 Restaurant, agreed to dismissal of its claim against MicFab's, and the court was advised that Lumbermens had this separate subrogation action pending against 606 Restaurant and Broadway 207. In response to 606 Restaurant's argument that whatever happened in that trial would have res judicata or collateral estoppel effect in Lumbermens' subrogation action, the court opined that MicFab's would be bound by any decision in the Inwood Security trial. Nevertheless, although counsel for MicFab's, pursuant to the trial court's direction, appeared at the Inwood Security trial and participated in jury selection, upon subsequent argument by MicFab's counsel, MicFab's was permitted simply to monitor the trial. Thereafter, following a two-week trial, the jury found for defendants 606 Restaurant and Broadway 207. Prior to the submission of the case to the jury, 606 Restaurant and Broadway 207 voluntarily withdrew their cross claims against MicFab's.

606 Restaurant then moved in this action for leave to serve an amended answer raising the defense of collateral estoppel and for summary judgment dismissing the complaint against it on those grounds. It argued that Lumbermens would be re-trying the same case against the same defendants, upon the same theory and using the same expert, that as a subrogated carrier, Lumbermens Mutual could claim no greater right to pursue 606 Restaurant in this action than could MicFab's, and that MicFab's had no such right since it chose to settle and withdraw from active participation in the Inwood Security trial and literally gave its theory and expert to the plaintiffs therein. "Thus," 606 Restaurant argued, "the theory upon which Lumbermens will have to try this action has already been fully litigated and determined against McDonalds and Lumbermens' position." It further argued that collateral estoppel should apply here; otherwise, a retrial of the issue of the cause of the fire could result in conflicting verdicts and would be unduly costly to both the defendants and the court.

Lumbermens responded that it was not a party to the Inwood Security action, and it is not seeking to re-litigate any issues in this case. Rather, it maintained that its claim against 606 Restaurant in this action bears no relation to 606 Restaurant's indemnification claim against MicFab's for any liability arising out of Inwood Security's claims against 606 Restaurant. According to Lumbermens, the issue decided in the Inwood Security action was whether MicFab's would be partly liable for contribution if 606 Restaurant were found liable for Inwood Security's injuries, while the issue to be decided in this action is whether 606 Restaurant caused Lumbermens' damages.

However characterized by Lumbermens, both actions require determination of the same essential issue: whether 606 Restaurant negligently caused the fire or contributed to its spread. A comparison of Lumbermens' complaint in this action (breach of 606 Restaurant's duty to exercise reasonable care in the use and occupancy of its premises) and MicFab's defense and cross claim against 606 Restaurant in the Inwood Security actions (if MicFab's is liable for Inwood Security's damages, "said damages were sustained in whole or in part by reason of the negligence of 606 Restaurant") clearly demonstrates the identity of issues. Lumbermens goes on to argue that an unrelated party such as Inwood Security could not, by losing its trial, somehow preclude Lumbermens from pursuing its subrogation claim. We disagree and accordingly reverse and grant 606 Restaurant's motion in its entirety. [*4]

Lumbermens, which is clearly in privity with its insured, MicFab's, is basically seeking to try the same case again, albeit with different damages, against 606 Restaurant. Lumbermens certainly had a full and fair opportunity to contest the issue of 606 Restaurant's liability before the Inwood Security jury, but declined to do so. Although MicFab's had settled with Inwood Security months before the trial, codefendants, 606 Restaurant and Broadway 207 had not settled, and thus there were active cross claims against MicFab's during the trial. Despite the fact that Lumbermens filed its complaint in the subrogation action about 18 months before the Inwood Security trial, Lumbermens never moved to intervene in the Inwood Security actions, and it never moved to consolidate the within subrogation action with the Inwood Security actions, despite the fact that it could have done so and then argued its theories of liability before the Inwood Security jury. It chose instead to stand on the sidelines and permit Inwood Security and Tower Insurance to be its stalking horses, thus making a strategic choice not to join the Inwood Security actions and to conduct little or no discovery in this subrogation action prior to the Inwood Security trial. Indeed, counsel for Lumbermens acknowledged as much in his November 10, 2003 status report when he acknowledged that "if liability is established [in the Inwood Security actions] against 606 Restaurant Corp., from whose premises the fire originated, we may be in a position to obtain Summary Judgment on the negligence issue, by way of collateral estoppel, and move directly to an inquest on damages." "[T]he law will not sanction such tactical maneuvering at the price of efficiency and consistent judgments where parties have not shown that they lacked a full and fair opportunity to be heard" (Buechel v Bain, supra, 97 NY2d at 309).

Accordingly, since the issue of 606 Restaurant's negligence, upon which Lumbermens would be proceeding, has been fully litigated and could easily have also been tried by MicFab's, plaintiff is collaterally estopped from re-litigating the decisive issue that has already been decided in the Inwood Security actions. We also find no merit to Lumbermens' arguments seeking to minimize the amount in issue in the Inwwood Security trials as opposed to the amount paid by it under MicFab's property damage and lost income policy, and questioning the efforts of the attorney for MicFab's, who was provided by its liability insurer.

 

Horton v. Warden 

Mugglin, J.

Appeal from an order of the Supreme Court (O'Shea, J.), entered May 20, 2005 in Schuyler County, which, inter alia, granted plaintiff's motion for partial summary judgment.

In this personal injury action, plaintiff moved for partial summary judgment, claiming that an automobile accident was caused solely by defendant's negligence and that she suffered a serious injury as defined in Insurance Law § 5102 (d). Defendant's cross motion for dismissal pursuant to CPLR 3216 was premised on plaintiff's disobedience of two court orders requiring the filing of a trial term note of issue. Supreme Court granted plaintiff's motion in its entirety and denied defendant's cross motion. Defendant appeals, claiming that (1) summary judgment as to liability should not have been granted because issues of fact exist concerning plaintiff's own negligence, (2) plaintiff submitted insufficient proof of serious injury, and (3) his cross motion should have been granted. We disagree and affirm.

As to the first issue, plaintiff's examination before trial testimony is that on November 21, 2000, a clear, dry day, at approximately 9:30 A.M., she was driving her vehicle about 50 miles per hour in a 55 mile-per-hour zone; as she was approximately four car lengths from an intersection, she observed defendant's vehicle stopped at a stop sign on the intersecting road. Thereafter, she observed defendant's vehicle enter the intersection and, although she swerved left and attempted to brake, defendant's vehicle impacted the passenger side of her vehicle. Defendant's examination before trial testimony is that, as he entered the intersection, he saw something out of the corner of his eye and, upon looking, saw plaintiff's vehicle, which he struck [*2]with the left front of his car. Defendant was charged with failure to yield the right-of-way (see Vehicle and Traffic Law § 1142 [a]). In satisfaction of this charge, he pleaded guilty to failing to obey a traffic control device (see Vehicle and Traffic Law § 1110 [a]).

"[I]t is well settled that the vehicle with the right-of-way is entitled to anticipate that a vehicle under the control of a stop sign will comply with the obligation to stop and yield the right-of-way" (O'Hara v Tonner, 288 AD2d 513, 514-515 [2001]; see Garnsey v Bujanowski, 13 AD3d 857, 857 [2004]; Vogel v Gilbo, 276 AD2d 977, 979-980 [2000]). Under these circumstances, plaintiff's submissions shifted the burden to defendant to raise a material issue of fact. Neither his argument that plaintiff did not take reasonable evasive action nor his attempt to raise issues of fact through the use of an accident reconstruction expert is persuasive. While we do not quarrel with the expert's mathematical calculation converting miles per hour into feet per second, we note that he relies on plaintiff's estimates of distance and speed as established fact and he has no basis for his estimates as to defendant's speed or distance from the intersection where his vehicle was stopped, thus rendering his opinion merely speculative. Moreover, a statement prepared by an insurance adjuster which claims that plaintiff stated that she was going 55 to 57 miles per hour, even if true, is such a minimal deviation as to fail to raise a question of fact (see Mosch v Hansen, 295 AD2d 717, 718 [2002]).

Next, as to the serious injury issue, plaintiff submitted admissible evidence demonstrating that she suffered a serious injury. Defendant did not meet the shifted burden by submitting competent medical evidence demonstrating the existence of a triable issue of fact (see CPLR 3212; see also Dongelewic v Marcus, 6 AD3d 943, 943-944 [2004]). The proof relied on by plaintiff is the report of the neurosurgeon who conducted an independent medical examination (hereinafter IME) of plaintiff for defendant. The IME took place on December 18, 2003, slightly in excess of three years postaccident. In addition to taking a history, the examining doctor performed a general physical examination and a neurological examination, and reviewed all of the extensive medical history and records concerning this accident, a prior automobile accident, and plaintiff's general medical complaints for a period starting a year and a half before the accident and concluding with the most recent prior to the IME.

Included among the voluminous records were X rays, an MRI study, a lumbar discogram, a CT scan and surgical reports for treatment subsequent to this accident. The doctor's diagnosis was:

"1. Myofascial injury lumbar region, chronic.

2. Status post anterior interbody fusion L4-5 (October 11, 2001) for removal of herniated disc and placement of titanium cages.

3. Status post percutaneous pedicle screw instrumentation L4-5 (August 29, 2002) for correction of lumbar spinal instability."

Among the conclusions contained in the report, are the following: (1) "Based on the review of medical records, clinical history, findings on MRI and lumbar discogram studies with CT scan, it is my medical opinion that the diagnosis of myofascial strain/injury and herniated disc at L4-5 were directly related to the accident of November 21, 2000." Further, "[t]he diagnosis of lumbar myofascial stress/strain/injury is also directly related to the accident of November 21, 2000"; (2) [*3]plaintiff's preexisting degenerative lumbar disc disease is "chronic, slowly progressive and degenerative in nature without any known curative medical treatment;" (3) surgery was necessary to correct the herniated disc suffered in the November 2000 accident; (4) plaintiff's prognosis is good; (5) plaintiff should continue with rehabilitation therapy and medication, but future surgery is not anticipated. With respect to permanency, the doctor stated:

"It is my opinion that the scar formation, surgical trauma to the abdominal and lumbar muscles as well as ligaments inherent to the surgical procedure will impart a significant permanent injury to the examinee. Furthermore, the application/implantation of spinal instrumentation (titanium cages, pedicle screw and plates) will contribute to a significant permanency. The exact determination of the degree of permanency is not possible at this stage since the examinee is still in the recuperative phase following her second surgery on August 29, 2002. Any conclusion regarding the degree or existence of permanent injury has to be differed [sic] to a later stage when complete bone fusion and stabilization of the spine has been attained."

Finally, the doctor concluded that "maximum medical improvement state has not yet been achieved" but that "[b]ased on his review of the medical records, details of present clinical condition, findings on neurological examination and general performance status of the examinee . . . the examinee is unable to return to her occupation at the present stage."

In view of this report, defendant's principal argument on appeal that plaintiff's prior accident and preexisting degenerative condition raise issues of fact concerning causation and serious injury are meritless. While Supreme Court found only that plaintiff sustained "a significant permanent injury" without further categorization, it is plaintiff's appellate argument that her evidence establishes that she suffered a serious injury under at least the "permanent consequential limitation of use of a body organ or member" category or the "significant limitation of use of a body function or system" category (Insurance Law § 5102 [d]). While this report does not contain a numerical quantitative assessment (see John v Engel, 2 AD3d 1027 [2003]; see also Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]), it does contain the doctor's findings on his neurological examination that "[s]pinal and truncal motion markedly limited because of pain and the expected restriction imparted by the anterior and posterior lumbar fusion instrumentation. Side bending and rotation are also markedly limited." Moreover, the record contains plaintiff's testimony that, prior to the accident, she was employed as a licensed practical nurse in a nursing home and that, since the accident, she has been on disability and, as noted, defendant's doctor, three years postaccident, opined that she is still unable to return to her employment. We find that this record amply demonstrates that plaintiff has suffered a medically significant injury as a result of this accident and that her limitations are not so "minor, mild or slight" as to be considered not serious within the meaning of Insurance Law § 5102 (d) (see Licari v Elliot, 57 NY2d 230, 236 [1982]).

As to the third issue, we first note that plaintiff now has filed a trial term note of issue and, in any event, dismissal pursuant to CPLR 3216 is not authorized absent service of the requisite 90-day demand (see CPLR 3216 [b] [3]; compare Vasquez v State, 12 AD3d 917, 919-920 [2004]).

Crew III, J.P., Peters, Rose and Lahtinen, JJ., concur.

ORDERED that the order is affirmed, with costs.
 

Style v. Joseph

 

Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered June 30, 2005, which denied defendant Joseph's motion for summary judgment dismissing the complaint as against him, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant Christopher K. Joseph dismissing the complaint.

On February 26, 2001, plaintiff took a livery cab driven by defendant to a Bronx hospital. The vehicle arrived at the hospital without incident. However, as plaintiff started to get out of the vehicle, defendant, operating under the misapprehension that plaintiff had completely exited, began to pull away. At the moment the vehicle began to pull away, plaintiff's right leg was extended out of the vehicle and her right foot was on the pavement. Plaintiff's right foot was dragged along the pavement approximately three car lengths before defendant stopped the vehicle. Plaintiff allegedly sustained injuries to her left shoulder, left leg, neck and back as a result of this accident.

Two days after the accident, plaintiff sought treatment at a Bronx hospital emergency room for the injuries allegedly sustained during the accident. X-rays of plaintiff's left leg and left shoulder were negative. Plaintiff was diagnosed with pulled muscles, and discharged with instructions to rest and take Motrin and Tylenol. Plaintiff subsequently received chiropractic, orthopedic and neurological care for her complaints.

Plaintiff commenced this action against defendant to recover damages for personal injuries she allegedly sustained as a result of the February 26, 2001 accident. Plaintiff alleged that, as a result of the accident, she sustained serious injury within the meaning of Insurance Law § 5102(d), namely a "permanent consequential limitation of [the] use of a body organ or member" or a "significant limitation of [the] use of a body function or system." Defendant moved for summary judgment dismissing the complaint, arguing that plaintiff did not sustain any such limitations. Supreme Court denied the motion, finding that, because defendant's expert [*2]failed to discuss two MRI reports indicating that plaintiff had sustained bulging and herniated discs, defendant failed to meet his initial burden on the motion. This appeal ensued.

Supreme Court erred in determining that defendant failed to make a prima facie showing of entitlement to judgment as a matter of law. Defendant bore the initial burden of setting forth a prima facie case that the injuries sustained by plaintiff are not "serious" (see Flores v Leslie, 27 AD3d 220 [2006]). Based upon multiple objective tests performed during his examination of plaintiff, defendant's expert affirmed that plaintiff has normal range of motion in her cervical and lumbar spine and both shoulders ^[FN1]. This expert also affirmed that plaintiff suffered no disabilities as a result of the subject accident. Therefore, defendant satisfied his initial burden on the motion, notwithstanding the existence of MRI reports indicating that plaintiff had herniated or bulging discs (see Servones v Toribio, 20 AD3d 330 [2005]; Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50 [2005]; see also Toulson v Young Han Pae, 13 AD3d 317, 319 [2004] [finding of bulging and herniated discs, by itself, does not establish a prima facie case of serious injury]).

Even assuming plaintiff's evidence otherwise is sufficient to raise a triable issue of fact regarding whether she sustained a serious injury, defendant's motion must be granted nonetheless. As defendant's expert noted, plaintiff was involved in two accidents prior to the accident that resulted in injuries relevant to this action. In 1991, plaintiff injured her back in a workplace accident that required her to stop working as a nurse's aide and led to her receipt of workers' compensation benefits. Plaintiff also injured her neck, back and right shoulder in a 1997 automobile accident. As a result of these preexisting injuries, plaintiff experienced pain in her back and neck, was no longer able to work and found her ability to perform many activities curtailed (e.g., walking, maintaining her home).

Where, as here, plaintiff sustained injuries as a result of accidents or incidents that preceded the accident giving rise to the litigation, plaintiff's expert must adequately address how plaintiff's current medical problems, in light of her past medical history, are causally related to the subject accident (see Flores, supra; see also Pommells v Perez, 4 NY3d 566 [2005]; Carter v Full Serv., AD3d [May 9, 2006; 1st Dept]; Montgomery v Pena, 19 AD3d 288 [2005]). This she failed to do. Of the four experts whose affirmations plaintiff submitted in opposition to the motion, only one mentioned plaintiff's medical history. In a conclusory manner, this expert stated that plaintiff had experienced "neck and back pain prior to the accident" and "was improving from [her preexisting] injuries" at the time of the subject accident. This expert then summarily concluded that, as a result of the subject accident, plaintiff's "condition became more severe and required a return to regular therapy." Given plaintiff's medical history, this explanation was inadequate to raise a triable issue of fact as to whether plaintiff's current medical [*3]problems are causally related to the subject accident. Therefore, plaintiff failed to rebut defendant's prima facie showing of entitlement to judgment as a matter of law.

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

ENTERED: AUGUST 3, 2006

CLERK

Footnotes

Footnote 1:While defendant's expert found that plaintiff had a minor restriction of motion of 160°; out of 180°; in forward elevation and abduction in her left shoulder, the expert opined that this restriction was self imposed. In any event, such a minimal limitation of the use of a shoulder would establish neither a "significant" nor "consequential" injury (see Sellitto v Casey, 268 AD2d 753 [2000] [10% loss of use of shoulder not a significant limitation]; see also Licari v Elliott, 57 NY2d 230 [1982] [minor, mild or slight limitation insufficient to establish serious injury]).

 

 

Tuna v. Babendererde

Spain, J.

Appeal from an order of the Supreme Court (Kavanagh, J.), entered March 1, 2006 in Ulster County, which granted defendant's motion for summary judgment dismissing the complaint.

Plaintiff was a front seat passenger in a car that was struck head-on by a vehicle operated by defendant. She was treated in a hospital emergency room immediately following the March 2003 accident, and sought medical attention thereafter for pain in her right shoulder, which was occasionally accompanied by clicking or popping, intermittent tingling in two fingers of her right hand, and neck and back pain. She commenced this action in January 2004, asserting that she had sustained a serious injury within the meaning of Insurance Law § 5102 (d), relying upon the statutory categories of permanent consequential limitation, significant limitation, and inability to perform substantially all of her customary activities for at least 90 out of the 180 days immediately following the accident. Following discovery, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had not suffered a statutory serious injury. Supreme Court granted defendant's motion, and plaintiff appeals.

It is well established that to satisfy the statutory serious injury threshold, plaintiff must have sustained an injury that is identifiable by objective proof; plaintiff's subjective complaints of pain do not qualify as a serious injury within the meaning of Insurance Law § 5102 (d) (see [*2]Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]; Scheer v Koubek, 70 NY2d 678, 679 [1987]). On a motion for summary judgment dismissing the complaint, defendant must demonstrate that plaintiff has not suffered a serious injury within the meaning of Insurance Law
§ 5102 (d) (see Gaddy v Eyler, 79 NY2d 955, 956 [1992]; McElroy v Sivasubramaniam, 305 AD2d 944, 945 [2003]). Here, defendant's motion was supported by the emergency room notes and records of plaintiff's treating and consulting physicians, as well as plaintiff's testimony at an examination before trial, documents upon which defendant may properly rely to make his prima facie showing of entitlement to judgment as a matter of law (see Franchini v Palmieri, 1 NY3d 536, 537 [2003]; McNamara v Wood, 19 AD3d 921, 922 [2005]; Seymour v Roe, 301 AD2d 991 [2003]; Cody v Parker, 263 AD2d 866, 867 [1999]).

Defendant's submission adequately demonstrates that, although plaintiff sought medical attention for various complaints of pain in the months following the accident, there is no objective evidence of physical injury caused by the accident. X rays, MRIs, and bone scans performed at various times in the six months following the accident revealed no objective medical evidence of a traumatic injury to her neck, shoulder or hip, and electrodiagnostic tests conducted in September 2003 yielded results within normal limits. Plaintiff acknowledged in her examination before trial that she had undergone no further treatment of her hip or shoulder after she ceased going to physical therapy in May 2004. Further, defendant submitted the independent medical examination report of orthopedic surgeon Paul Jones, who examined plaintiff on May 6, 2005 ^[FN1]. He found a minimal limitation of range of motion in her right shoulder and a "click" as she abducted the shoulder, but was unable to discern objective evidence of injury to her shoulder or hip.

In addition to showing the absence of an objective, medically determined injury, defendant's submission demonstrated that plaintiff was not prevented from performing substantially all of her usual and customary activities for 90 of the 180 days immediately following the March 7, 2003 accident. With the exception of one doctor's note retroactively "excusing" plaintiff from work for the nine-day period of April 15 to April 23, 2003, plaintiff was under no medically imposed restrictions during the 180-day period until August 5, 2003, when she began treating with osteopath Marc Rosenblatt. Plaintiff testified at her examination before trial that she could not swim like she used to, but she was unable to specify any other daily activity that she could not perform, stating only that it limited "basically everything," and that she had to rely more upon her left hand. Approximately six weeks after the accident, plaintiff applied for employment at Filene's department store, and she began working there in early May 2003, unpacking and hanging clothes and working the cash register. Plaintiff left that job several months later for reasons unrelated to her injuries, and worked at a grocery store for approximately three months. Thereafter, she began work as a waitress and, although she asserted that she required the help of others at her job, she did not assert that she was unable to do the work required of her. [*3]

Thus, the burden shifted to plaintiff to raise a material issue of triable fact on each of the categories of claimed serious injury through the use of competent medical evidence and diagnostic tests (see Toure v Avis Rent A Car Sys., supra at 353; Ketz v Harder, 16 AD3d 930, 932 [2005]). To do so, she relied on Rosenblatt's affirmation and her own affidavit. Rosenblatt's affirmation is not sufficient to raise an issue of fact on the permanent consequential limitation category because he noted "some signs of improvement," and his opinion that she is permanently disabled was not rendered until approximately 19 months after his last examination of her, but he does not provide an explanation for the cessation of plaintiff's treatment (see Buster v Parker, 1 AD3d 659, 660-661 [2003]; Davis v Evan, 304 AD2d 1023, 1025 [2003]; cf. Dooley v Davey, 21 AD3d 1242, 1243 [2005]). Rosenblatt's submission is also insufficient to raise an issue of fact on the significant limitation of use category because, although he identifies specific limitations to plaintiff's ranges of motion (see Toure v Avis Rent A Car Sys., supra at 350), his affirmation fails to set forth diagnostic techniques that were not dependent upon plaintiff's subjective complaints of pain (see Burford v Fabrizio, 8 AD3d 784, 785-786 [2004]; Temple v Doherty, 301 AD2d 979, 981 [2003]). Finally, although Rosenblatt's affirmation states that plaintiff was unable to work from the date of the accident on March 7, 2003 through December of that year, this evidence is of no probative value with respect to the 90/180-day category because plaintiff did not come into Rosenblatt's care until August 2003, nearly five months after the accident occurred and, thus, on the facts of this case, he is not competent to discuss her activities during that period. Finally, in the absence of objective proof that plaintiff sustained a medically determined injury, her own affidavit describing the limitations upon her daily activities is insufficient to raise an issue of fact with respect to the 90/180-day category of serious injury (see Drexler v Melanson, 301 AD2d 916, 918-919 [2003]).

Cardona, P.J., Peters, Carpinello and Kane, JJ., concur.

ORDERED that the order is affirmed, with costs.

Footnotes

Footnote 1: We have not considered the independent medical examination report of orthopedic surgeon Mary Godesky, dated September 11, 2003, because it is unsworn, and is therefore inadmissible and incompetent support for defendant's motion (see Loadholt v New York City Tr. Auth., 12 AD3d 352 [2004]; cf. Seymour v Roe, 301 AD2d 991, 991 [2003]).

Ruge v. Utica First Insurance Company

Kujawski & Dellicarpini, Deer Park, N.Y. (Shayne, Dachs,
Stanisci, Corker & Sauer, LLP [Jonathan A. Dachs] of counsel), for
appellant.
Farber Brocks & Zane, LLP, Mineola, N.Y. (Audra Zane of
counsel), for respondent Utica First
Insurance Company.

In an action for a judgment declaring that the defendant Utica First Insurance Company is obligated to defend and indemnify the defendant Heavens Heating and Cooling Corp. in an underlying personal injury action entitled Ruge v Galarza, commenced in the Supreme Court, Suffolk County, under Index No. 18357/01, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (Baisley, J.), dated July 7, 2005, which granted the motion of the defendant Utica First Insurance Company for summary judgment declaring that it is not obligated to defend and indemnify the defendant Heavens Heating and Cooling Corp. in the underlying personal injury action, denied his cross motion for summary judgment declaring that the defendant Utica First Insurance Company is so obligated, and declared that the defendant Utica First Insurance Company is not obligated to defend and indemnify the defendant Heavens Heating and Cooling Corp. in the underlying personal injury action.

ORDERED that the order and judgment is affirmed, with costs.

On May 14, 2001, the plaintiff's decedent, Mary K. Ruge, while driving a school bus, was involved in an automobile accident with a van. The van was owned by Nestor Galarza, who used it in his heating and cooling business, the defendant Heavens Heating and Cooling Corp. (hereinafter HHACC). At the time of the accident, the van, which was driven by Galarza's brother, was carrying piping material in a roof rack affixed to the top of the van. When the vehicles collided, the pipes dislodged and pierced the window of the bus, striking Ruge in the head. Both drivers were killed as a result of injuries sustained in the accident. [*2]

The plaintiff sought coverage for the injuries sustained in the accident from HHACC's insurer, the defendant Utica First Insurance Company (hereinafter Utica), under a contractor's insurance policy Utica issued to HHACC. The policy contained an automobile exclusion which stated that the insurer was not obligated to "pay for bodily injury, property damage, personal injury or advertising injury that arises out of the ownership, operation, maintenance, use, occupancy, renting, loaning, entrusting, supervision, loading or unloading of . . . an auto" (hereinafter the auto exclusion).

While an ambiguity in an exclusionary clause in an insurance policy must be construed most strongly against the insurer (see Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390, 398; Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356, 361), an unambiguous policy provision must be accorded its plain and ordinary meaning (see Sanabria v American Home Assur. Co., 68 NY2d 866, 868; United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 230). We find no ambiguity as to the plain and ordinary meaning of the auto exclusion at bar. Thus, Utica established, prima facie, that the auto exclusion in the policy precluded coverage for the subject accident (see Ruggerio v Aetna Life & Cas. Co., 107 AD2d 744, 744-745; Matter of Duncan Petroleum Transp. v Aetna Ins. Co., 96 AD2d 942, 942-943, affd 61 NY2d 665).

In opposition, the plaintiff failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324). Contrary to the plaintiff's contention, the "loading or unloading" exception to the "transportation of property" exclusion in the products-completed operations hazard provision (hereinafter the products hazard coverage) of the policy does not provide coverage for this claim despite the auto exclusion (see Rhinebeck Bicycle Shop v Sterling Ins. Co., 151 AD2d 122, 124-126; Zandri Constr. Co. v Firemen's Ins. Co. of Newark, 81 AD2d 106, 109, affd 54 NY2d 999; Charter Oaks Fire Ins. Co. v Clayton, 62 F3d 1414; Jakobson Shipyard v Aetna Cas. and Sur. Co., 775 F. Supp. 606, 613, affd 961 F2d 387). "Exclusions in policies of insurance must be read seriatim, not cumulatively, and if any one exclusion applies there can be no coverage since no one exclusion can be regarded as inconsistent with another" (Zandri Constr. Co. v Firemen's Ins. Co. of Newark, 81 AD2d 106, 109, affd 54 NY2d 999, supra; see Kay Bee Bldrs. v Merchant's Mut. Ins. Co., 10 AD3d 631, 632). Thus, the auto exclusion contained in the policy was not rendered ineffective by the "loading or unloading" exception to the "transportation of property" exclusion pertaining to products hazard coverage.

The plaintiff's remaining contentions are without merit.
CRANE, J.P., MASTRO, SKELOS and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Scherer v. North Shore Car Wash Corp., et al

Nicoletti Gonson & Spinner, LLP, New York, N.Y. (Elana
Schachner and Marina A. Spinner of counsel), for appellants.
Saretsky Katz Dranoff & Glass, LLP, New York, N.Y. (Alan
G. Katz and Jennifer L. Coviello of
counsel), for respondent.

In an action to recover damages for personal injuries, etc., the defendants North Shore Car Wash Corp. and 450 Route 25A Realty Corp. appeal from so much of an order of the Supreme Court, Suffolk County (Burke, J.), dated October 26, 2004, as denied that branch of their motion which was for summary judgment dismissing so much of the cross claim asserted by Vincent Feliccia against the defendant North Shore Car Wash Corp. for common-law indemnification, and granted the motion of the defendant Vincent Feliccia for summary judgment on so much of his cross claim as is asserted against the defendant North Shore Car Wash Corp. for common-law indemnification.

ORDERED that the appeal by the defendant 450 Route 25A Realty Corp. from so much of the order as granted the motion of the defendant Vincent Feliccia is dismissed, without costs or disbursements, on the ground that the defendant 450 Route 25A Realty Corp., is not aggrieved by that portion of the order (see CPLR 5511); and it is further,

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendant Vincent Feliccia and substituting therefor a provision denying that motion; as so modified, the order is affirmed insofar as appealed from, without costs or [*2]disbursements.

The defendant Vincent Fileccia brought his vehicle to be washed by the defendant North Shore Car Wash Corp. (hereinafter North Shore). When the car exited the automatic system, the defendant Jose Maltez, an employee of the defendant North Shore, drove the vehicle forward and struck the plaintiff Maureen Scherer, causing serious injuries.

The Supreme Court properly concluded that a passive owner of a vehicle vicariously liable pursuant to Vehicle and Traffic Law § 388 is entitled to common-law indemnification from the employer of an active tortfeasor acting within the scope of his employment (see Traub v Dinzer, 309 NY 395, 398-400; Dunn v Hurtt, 4 AD3d 884; Denton Leasing Corp. v Breezy Point Surf Club, 133 AD2d 95; Hertz Corp. v Dahill Moving & Stor. Co., 79 AD2d 589, affd 54 NY2d 619). In the instant case Jose Maltez was clearly acting within the scope of his employment when the accident occurred (see Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933; O'Boyle v Avis Rent-A-Car System, 78 AD2d 431, 440).

However, North Shore and Maltez allege that a malfunction of the vehicle contributed to the accident and therefore Fileccia's liability is not predicated solely upon vicarious liability pursuant to Vehicle and Traffic Law § 388. Although there is no evidence in the record of a specific defect in the vehicle prior to the accident, Fileccia acknowledged at his deposition that North Shore's insurance carrier asked to inspect the vehicle before it was repaired. Fileccia further acknowledged that he had received an "Amended Notice to Preserve" the vehicle dated September 11, 2002, directing him to "preserve and maintain" the vehicle without alterations.

Fileccia initially agreed to the inspection while the vehicle was still in the repair shop. Thereafter, Fileccia's insurance carrier instructed him that there was "absolutely no way" to permit such an inspection. Therefore, when North Shore's representative contacted Fileccia to set up an appointment to inspect the vehicle, Fileccia informed him that his insurance carrier instructed him not to permit the inspection. The vehicle was repaired in violation of the outstanding "Amended Notice to Preserve."

North Shore's inability to inspect the vehicle prior to its repair prejudiced North Shore in opposing summary judgment with respect to Fileccia's claim for common-law indemnification against it (see Deveau v CF Galleria at White Plains, LP, 18 AD3d 695, 696). In view of the foregoing, summary judgment in Fileccia's favor on so much of his cross claim as is against North Shore for common-law indemnification should have been denied.
MILLER, J.P., RITTER, GOLDSTEIN and LUNN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court