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Coverage Pointers - Volume X, No. 10

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Dear Coverage Pointers Subscribers:

 

There are two attachments, this week's issue of Coverage Pointers and a Special Supplement dealing with current NY case law on recovery of lost wages by illegal aliens. 

 

I've had a busy couple of weeks of travel, from Buffalo to NYC to Sussex County, NJ.  Next week we'll be in Toronto and Syracuse and back, we think, to NYC. The NYC Mediation, at JAMS, was an interesting one.  It arose out of a personal injury action and separate defense counsel represented the insured.  I represented the carrier's coverage interests as there were tenders, tenders back, AI questions and estoppel issues raised.  Chaos breeds resolution and we were able to resolve both the coverage and tort lawsuits in one sitting.  It's much easier to do that in a mediation venue than in a courtroom.

 

The NJ mediation did not result in resolution but a narrowing of issues, which itself is an accomplishment.

 

I feel like I live in airports.

 

Speaking of air travel .

 

100 Years Ago Today:

 

NEW FEAT WITH AEROPLANE

Wiibur Wright Starts Without the Aid of a Derrick.

 

New York Times

November 14, 1908


Le Mans, France -Wilbur Wright, the American aeroplanist, succeeded this afternoon for the first time in making a start with his flying machine without the use of the derrick previously employed for the purpose.  He circled the field twice on this flight and then came to the ground.

 

Editor's Note: Mr. Wright, circling the airfield, was dreaming of LaGuardia Airport.

 

Special Supplement to This Week's Issue

 

As indicated, this week's issue comes with a bonus.  I'm pleased to attach a Special Supplement to this issue, an article by one of our "really smart" associates, Jennifer A. Kelleher.  Jen was asked to consider whether illegal aliens were permitted to recover lost wages in a New York lawsuit.  I've attached her article, which includes a review of a very recent appellate decision on this very interesting question.  Her summary is here and the full version attached.

 

Getting "the Green" without a Green Card:

The Viability of Lost Wage Claims Brought By Illegal Aliens in New York

 

Jennifer A. Kelleher
[email protected] 
 

The issue of the ability of undocumented aliens to recover lost earnings has received much attention in New York in the past several years, creating a division among the judicial departments that was ultimately settled by the Court of Appeals.  In Balbuena v. IDR Realty LLC, 6 N.Y.3d 338 (2006), the Court held that, in the absence of proof that plaintiffs tendered false work authorization documents to obtain employment, IRCA does not bar maintenance of a claim for lost wages by undocumented aliens.  On October 31, 2008, the Third Department addressed the question that went unanswered in Balbuena by explicitly holding that a plaintiff's violation of IRCA (i.e., submission of a false documentation to obtain employment) does not preclude an undocumented alien from recovering lost wages.  Amoah v. Mallah Management, LLC, 2008 NY Slip Op 8228 (3d Dept. 2008).  This article provides a full discussion of these decisions, as well as the rugged terrain leading up to them.

 

Upcoming CLE (A MUST attend for Insurance Coverage attorneys and claims professionals):

 

DRI's Insurance Coverage and Practice Seminar

Sheraton New York Hotel and Towers 
New York, NY
12/4/2008 - 12/5/2008
www.dri.org

 

From Audrey Seeley (the still reigning Queen of No Fault):

 

All I can say this edition is what is in the water down there? 

 

There is a number of Appellate Term, Second Department cases of interest for those of you who practice downstate.  One case involved discovery motions where the insurer was denied document discovery responses from the plaintiff, who never objected or moved for a protective order in response to the demands, because the demands were palpably improper.  How were they palpably improper you ask?  I have the answer - the insurer failed to establish that it issued timely denials of the bills which would permit the insurer to have a viable defense of lack of medical necessity in the case. 

 

Another case held that an insurer's denial was not timely and the delay letter pending receipt of verification in the form of an EUO from the EIP was not a verification request as the insurer neither requested anything nor required response from the medical provider. 

 

The final case that gave me pause was a decision wherein the court held that plaintiff's evidence was in admissible form to establish its prima facie case.  Yet it did not stop there.  The court stated that even if the plaintiff's case was deficient it was cured by the insurer's opposition which included the denials and an affidavit from the adjuster that the denials were timely issued. 

 

I hope that at least one of these three decisions is being appealed...

 

Finally, this is my last plug for the no-fault program here in Buffalo next Wednesday.  If you are interested in attending please contact me by e-mail: [email protected] and I will send you a brochure.  You can also register and attend the day of the seminar.

 

I hope to see you there!

 

Audrey 

 

Audrey A. Seeley
[email protected]

 

Creative but Unsuccessful Late Notice Argument

 

The policy contained a substantial self-insured retainer.  The insurer did not disclaim coverage timely based on an exclusions and thus lost its right to rely on the exclusion and was stuck with coverage.  "Aha," claimed the insured.  "If you didn't disclaim timely, you have waived your right to ask for the insured to pay its self insured retention."  "Nah," responds the First Department.  "A deductible is not a policy limitation so the insurer hasn't waived it."  See the Pav-Lak case in today's issue.

 

Earl's Pearls and Health Insurance Liens

 

Earl Cantwell's Earl's Pearls column in this issue is entitled The Pain of Health Insurance Liens and discusses the often discussed and less often understood case law on the right of health insurers to assert liens on recoveries in bodily injury lawsuits.

 

100 Years Ago Today

 

$1,919 for Elevated Wreck Death

New York Times

November 14, 1908

 

Still another verdict was recorded yesterday against the Interborough Rapid Transit Company as a result of the elevated wreck at Ninth Avenue and Fifty Third Street on Sept. 11, 1903, when a train jumped the tracks and fell to the street below. A jury before Supreme Court Justice O'Gorman gave Joshua Cooper a verdict of $1919 as damages for the death of his brother James, who was killed in the accident. Joshua Cooper sued on behalf of his aged mother.

 

Editor's Note:  Inflation is alive and well. 

 

This Week's Issue of Coverage Pointers

 

Let's see what we are offering in today's action packed issue.  The following cases are reported in the attached issue

 

  • No Valid Excuse for Insured's Failure to Provide Notice of Accident so Coverage Lost
  • Late Disclaimer Bars Reliance on Exclusion; Other Insurance Clauses Govern Order of Coverage.  Late Disclaimer Does Not Lead to Waiver of Deductible
  • Vicarious Liability Coverage Provides Protection for Employer Held Vicariously Liable, Not Individual Employee for Whom Employer Must Respond
  • Uninsured Motorists Arbitration Decision Subject to "Closer Scrutiny" but Upheld
  • What's a "Household?" 

MARGO'S MUSINGS ON SERIOUS INJURY UNDER NEW YORK NO FAULT

Margo M. Lagueras
[email protected]

 

  • Claim of Exacerbated Injury Requires Sufficient Quantitative or Qualitative Assessment of Prior Limitations
  • Range-of-Motion Report Must Include Comparative Quantification
  • Affirmations Must Be Based on Sworn Reports
  • Unaffirmed MRI Results Are Acceptable if Referenced in Defendant's Doctor's Report
  • Formula:  Affirmed Medical Report + Recent Examination + Objective Medical Evidence That Is Contemporaneous With Accident
  • Affirmed Medical Reports Need to be Based on Recent Examinations 

AUDREY'S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

 

Arbitration

  • Another IME Report Found Deficient Because It Does Not State Lack of Medical Necessity

 Litigation

  • Summary Judgment Denied On Issue Whether Assignor Entitled to Benefits through MVAIC
  • Verification Request of No-Fault Applicant Improper When NF-5 Provided
  • Discovery Demand for Failure to Demonstrate Timely Denials Issued Leaving Insurer with Viable Defenses
  • Delay Letter Sent to Medical Provider Pending EUO of EIP Did Not Toll 30 Day Pay/Deny Rule
  • Your Prima Facie Case Was Deficient?  Don't Worry We Will Cure It by Looking at the Insurer's Evidence
  • Counsel Cannot Proffer on Excuse on Behalf of Insurer to Vacate Default Judgment - The Insurer Needs to State the Excuse
  • Plaintiff Cannot Maintain Same Claim When Provided Stip With Prejudice In Prior Action 

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper

[email protected]

 

Of Property 

  • Going to California:  Motion to Dismiss on Forum Non Conveniens Granted
  • Carrier's Motion Denied where Evidence in Support was Deemed Insufficient
  • No Coverage where the Property was not Covered under the Policy  

And Potpourri  

  • Settlement that Wasn't:  Plaintiff not Bound by Settlement That He Never Authorized
  • Summary Judgment Precluded where Plaintiff may have been Employed by Defendant
  • Question of Fact on the Existence of Safety Devices Foils Summary Judgment on LL § 240 

EARL'S PEARLS

Earl K. Cantwell, II
[email protected]

 

The Pain of Health Insurance Liens

 

Hope All is Well

 

We're proud to have some 1600 subscribers and many more who read our publication as it's posted on company networks.  We love the feedback we receive and thank you for your kind and generous words. 

 

All the best.

 

Dan

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

Newsletter Editor

Dan D. Kohane
[email protected]

 

Insurance Coverage Team

Dan D. Kohane, Team Leader
[email protected]

Michael F. Perley
Audrey A. Seeley
Steven E. Peiper

Margo M. Lagueras

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

Jody E. Briandi
Steven E. Peiper

NO-FAULT/UM/SUM TEAM
Audrey A. Seeley, Team Leader
[email protected]
Tasha Dandridge-Richburg
Margo M. Lagueras

APPELLATE TEAM
Jody E. Briandi, Team Leader
[email protected]
 Scott M. Duquin

Index to Special Columns

 

Margo’s Musings on “Serious Injury”

 Audrey’s Angles on No Fault

Peiper on Property and Potpourri
Earl’s Pearls

Across Borders

 

11/13/08          Board of Hudson River-Black River, etc.  v. Praetorian Ins. Co.
Appellate Division, Third Department
No Valid Excuse for Insured’s Failure to Provide Notice of Accident so Coverage Lost

On July 24, 2005, Chera sustained injuries on property maintained by insured Board. On October 19, 2005, Board received a notice of claim for personal injuries and damages relating to the incident, but failed to forward it to defendant, its liability insurer, or otherwise notify defendant of the occurrence. When sued a year later, plaintiff sent it along to its broker and the broker sent it along to the carrier.  The insurer disclaimed coverage for late notice of the occurrence and the claim.

There is an obligation to give notice under a liability policy within a reasonable time and without excuse, a failure to give notice vitiates the contract of insurance.  Under current law, prejudice need not be demonstrated.  The insured’s only excuse for the delay is that its then-general counsel "should have" forwarded the notice of claim to defendant when it was received and that it "assumed" that notice had been so provided. Neglect or inadvertence is not a valid excuse. Earlier notice given to the broker is not notice to the insurer.

11/13/08          Pav-Lak Industries, Inc., v. Arch Insurance Company

Appellate Division, First Department
Late Disclaimer Bars Reliance on Exclusion; Other Insurance Clauses Govern Order of Coverage.  Late Disclaimer Does Not Lead to Waiver of Deductible

The Arch policy has an additional insured coverage endorsement  and the court held that it extended coverage for injuries arising out of the subcontractor’s employees.  As Arch failed to timely notify one of the parties, Pav-Lak, of its reliance on a policy exclusion, it cannot rely on a policy exclusion now, to deny. Contrary to a clever argument suggested by the insured, failure to timely disclaim does not result in a waiver of a policy deductible. When comparing the “other insurance clauses in the Arch policy providing additional insurance and the Zurick policy that was issued to Pav-Lak, the Zurich policy is excess because the Zurich policy provided that its coverage would be excess over "[a]ny other primary insurance available to you covering liability for damages arising out of the premises or operations for which you have been added as an additional insured by attachment of an endorsement."

 

11/13/08          Cohen v. Medical Malpractice Insurance Pool of New York State

Appellate Division, First Department
Vicarious Liability Coverage Provides Protection for Employer Held Vicariously Liable, Not Individual Employee for Whom Employer Must Respond
Professional liability policy that provided protection to employer for vicarious responsibility of employees did not provide coverage for the employees as well. That the physician is covered for "[s]ervices which were provided ... by other people for whose conduct [he is] legally responsible" does not create coverage for those "other people."  There was no evidence that the employees of insured was intended to be covered where employee was neither named nor added by endorsement].


10/18/08         
In the Matter of Mangano, v. United States Fire Ins. Co.

Appellate Division, Second Department
Uninsured Motorists Arbitration Decision Subject to “Closer Scrutiny” but Upheld
Mangano was a front-seat passenger in a truck owned by his employer and operated by Accardo. Accardo was driving when he swerved to avoid a vehicle that had cut him off. Accardo lost control of the truck and the front right portion of the truck struck a guardrail in the right lane. The impact caused the passenger door to open and Mangano, not wearing a seat belt, was ejected from the truck. The petitioner was flung over the guardrail and landed some 30 feet below the overpass on his back, sustaining spinal fractures. He underwent three spinal surgeries and is permanently partially disabled.

As the driver of the offending vehicle fled the scene of the accident and was never identified, the petitioner filed a claim for uninsured motorist benefits with his employer's insurer, United States Fire Insurance Company ( USFIC). At the hearing, USFIC asserted the seat belt defense and the artbitrator reduced the $3,500,000 award by 80% due to the petitioner's failure to use the available seat belt. While the arbitrator's award – an mandatory procedure -- is subject to "closer judicial scrutiny" than it would receive had the arbitration been conducted pursuant to a voluntary agreement between the parties it cannot be arbitrary and capricious."  This one was fully supportable and upheld

10/18/08          Korson v. Preferred Mutual Insurance Company

Appellate Division, Second Department

What’s a “Household?”
Steve lived upstairs.  Brother Dean, Dean’s wife Brenda, Brenda’s daughter (Dean’s step-daughter) Crystal and Crystal’s daughter (Dean’s step grand-daughter) Aaliyah lived downstairs.  Crystal sued Steve and Dean alleging that the Aaliyah suffered lead-poisoning in the residence.  Did the intra-insured exclusion apply to deny coverage?

The exclusion which removed from liability coverage for "bodily injury to you, and if residents of your household, your relatives, and persons under the age of 21 in your care or in the care of your resident relatives." The policy contained no definition of the term "household."

The term "household," was characterized as ambiguous and devoid of any fixed meaning and its definition requires an inquiry into the intent of the parties and must reflect the reasonable expectation of the ordinary business person and the circumstances particular to each case must be considered. In this case, the plaintiff's papers revealed that at the relevant time, the subject house was a single-family home, with a single mailbox, and one electric meter. There was one gas bill for the subject address. There was unrestricted access between the areas of the home in which the plaintiff lived, and in which Dean and his family lived. Furthermore, the homeowner's policy indicates that both the plaintiff and Dean are named insureds with respect to "12 Orchard Street" in Warwick, New York. There is no indication in that document that their reasonable expectation was to insure anything other than one household. Accordingly, the exclusion applied and no coverage available for this claim.

 

MARGO’S MUSINGS ON SERIOUS INJURY UNDER NEW YORK NO FAULT

Margo M. Lagueras
[email protected]

 

11/6/08            Wolff v. Schweitzer

Appellate Division, Third Department

Claim of Exacerbated Injury Requires Sufficient Quantitative or Qualitative Assessment of Prior Limitations

Here the plaintiff was rear-ended and claimed a permanent loss of use and a permanent consequential limitation of his back and lower extremities.  Defendant submitted the affidavit of its neurologist who performed an IME of the plaintiff, finding no objective evidence that the plaintiff suffered a serious or permanent injury to his back or lower extremities.  The neurologist opined that the plaintiff’s herniation was the result of natural and expected progression of his pre-existing spinal condition.  The affirmation of the plaintiff’s neurologist did not quantify his current limitations or contrast them to the normal function, purpose and use of the affected body organ, function or system, or that the findings were based on anything other than the plaintiff’s subjective complaints.  His physician’s affirmation did not indicate any objective medical basis for finding that the accident exacerbated the plaintiff’s prior spinal condition as it failed to provide a quantitative or qualitative assessment of the limitations prior to the accident by which the alleged aggravation might be measured.

 

11/5/08            Webb v. Keyspan Corporation

Appellate Division, Second Department

Range-of-Motion Report Must Include Comparative Quantification

Here, the defendants’ expert, an orthopedic surgeon, failed to compare his range-of-motion testing results to what is normal.  The court notes that without the comparative quantification, it cannot determine whether the deceased range-of-motion was mild, minor or slight, thus constituting an insignificant injury rather than a serious one under the no-fault statute.

 

11/5/08            Merzguioui-Gray v. Shlomit Express Cab Corp.

Appellate Division, Second Department

Affirmations Must be Based on Sworn Reports

Defendants’ experts’ reports fail to meet their prima facie burden on summery judgment as regards plaintiff Gray because even though the examining neurologist reviewed the plaintiffs’ bill of particulars, she then did not examine the left shoulder allegedly injured in the accident, making it unnecessary for the court to consider the plaintiff’s opposing papers.  However, the second plaintiff, who relied on her treating physician’s affirmation which in turn relied on an unsworn report, succumbed to defendants’ summary judgment motion.

 

11/5/08            Gastaldi v. Chen

Appellate Division, Second Department

Unaffirmed MRI Results are Acceptable if Referenced in Defendant’s Doctor’s Report

The court found the plaintiff’s reliance on unaffirmed MRI reports proper as those results were also set forth in the defendants’ examining neurologist’s report.  However, the court reiterated that the mere existence of a herniated disc is not evidence of a serious injury without objective evidence of both the extent of the alleged physical limitations caused by the herniation and the duration.  The plaintiff also failed to avoid dismissal as the other medical reports he submitted were either unaffirmed, failed to set forth the objective tests performed in reaching the conclusions espoused, or did not relate any injuries to the accident.

 

11/5/08            Collado v. Satellite Solutions & Electronics of SNY, LLC

Appellate Division, Second Department

Formula:  Affirmed Medical Report + Recent Examination + Objective Medical Evidence That Is Contemporaneous With Accident

The defendants appeal and win a reversal, on the law.  The plaintiff submitted her treating osteopath’s report, based on a recent examination, which revealed range-of-motion limitations of the cervical spine and right shoulder.  The plaintiff’s case failed, however, because there was no objective medical evidence showing any range-of-motion limitations that were contemporaneous with the accident.  There were quantified range-of-motion findings by the osteopath but, unfortunately for the plaintiff, they were in a prior report based on an examination that took place a year after the accident.  Not even the MRI report helps save the plaintiff’s case because the radiologist only notes his findings but does not express an opinion as to their cause. 

 

Just for good measure, the Second Department hammers home these lessons again in Eldrainy v. Hassain, decided on the same date.

 

10/28/08          Krauer v. Hines,
Soriano v. Darrell, and
Johnson v. County of Suffolk

Appellate Division, Second Department

Affirmed Medical Reports Need to be Based on Recent Examinations

On October 28, 2008, the Appellate Division, Second Department, handed down three decisions and one clear lesson, on this occasion to the plaintiffs:  the affirmed medical reports you offer to support your serious injury claims better be based on recent examinations. 

 

The Krauer and Soriano plaintiffs appealed awards of summary judgment dismissing their complaints only to have the trial court decisions affirmed because the affidavits and/or affirmations of their treating physicians, neurologists or chiropractors were not based on recent examinations.  Therefore, the reports failed to raise triable issues of fact as to whether the plaintiffs sustained permanent consequential limitations of use of a body organ or member, or significant limitation of use of a body function or system.

 

In Johnson, however, the defendants appealed the denials of their summary judgment motions, and the Appellate Court agreed and dismissed, reversed or vacated each of the decisions against the various defendants. 

 

A Suffolk County bus rear-ended a co-defendant, who was then propelled into oncoming traffic and collided with the plaintiffs.  The defendants submitted affirmed reports of an orthopedic surgeon who examined the plaintiffs approximately two months after the accident and found normal range-of-motion in their cervical and lumbar spines, and concluded that neither plaintiff sustained a disability.  In opposition, the plaintiffs submitted a report indicating restrictions of motion from a chiropractor who stated he had stopped treating them some 75 days after the accident and had not re-examined them since then.  The Appellate Court held that because the chiropractor’s report was not based on recent examinations, it did not raise a triable issue of fact and summary judgment should have been granted to the defendants.

 

 

AUDREY’S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

 

Arbitration

11/7/08            In the Matter of the Arbitration Between Applicant and Respondent

Arbitrator Thomas J. McCorry (Erie County)

Another IME Report Found Deficient because It Does Not State Lack of Medical Necessity

This is yet another arbitration decision where the chiropractic independent examination report was found insufficient to support the insurer’s denial based upon lack of medical necessity.  In this decision, the chiropractor was Gary Kostek, DC, whose conclusion and opinion was that the applicant had reached “a logical end result in relationship to chiropractic treatment.”  The assigned arbitrator determined that Mr. Kostek’s report in words or substance did not indicate that further treatment was not medically necessary.

 

Here’s the Angle:   If you have upstate arbitrations you need to be mindful of this trend if your denial is based upon an IME and consider calling your physician or chiropractor to testify.  I recently had an arbitration where Mr. Kostek was the independent chiropractor and my client wanted him to testify due to its awareness of this trend.  I have not received the decision yet and will keep you posted on it. 

 

Litigation

11/6/08            Hammond v. GMAC Ins. Co.

Appellate Division, Third Department

Summary Judgment Denied on Issue Whether Assignor Entitled to Benefits through MVAIC

This is an interesting one and a well reasoned decision from the Court.  On May 29, 2005, the plaintiff and his friend borrowed mom’s car and have stopped at the gas station to fill up.  The plaintiff was pumping gas and the gas pump nozzle popped off spilling gas on the ground.  The plaintiff did not realize that gas also spilled on him.  The plaintiff went into the gas station to buy some cigarettes (you know where I’m going don’t you…).  Yes, he got back into to car and lit a cigarette which ignited the gasoline on his clothing.  The plaintiff sustained severe burns on the right side of his body, arm, and leg.

 

The plaintiff applied for no-fault benefits and the insurer properly denied the claim as the injuries did not arise out of the use or operation of a motor vehicle.  The lower court granted the insurer’s summary judgment and denied the plaintiff’s cross-motion.  On appeal, the Court affirmed the lower court’s decision and relying upon the Walton case (which we all know) held that the vehicle must be the proximate cause of the injury.  In this case, the Court reasoned that the plaintiff’s injuries would have occurred irrespective of whether he was in the vehicle.  He just happened to be in the vehicle at the time his clothing ignited but the vehicle itself did not cause his injury.

 

11/5/08            Nyack Hosp. a/a/o Gerald Hutchinson v. New York Cent. Mut. Fire Ins. Co.

Appellate Term, Second Department

Verification Request of No-Fault Applicant Improper When NF-5 Provided

On appeal, the court declined to consider the insurer’s argument that the plaintiff failed to establish a prima facie case since it was raised for the first time on appeal.  Further, the court held that the insurer not only failed to timely request verification but also failed to demonstrate its request was reasonable.  The insurer received an NF-5 or hospital facility form on October 6, 2005 and on December 23, 2005, requested verification in the form of an application for no-fault benefits and a completed assignment of benefits.  The court held that the verification request was untimely and notably was requested more than 30 days after the NF-5 was received.  Also, the court held that the request for a completed application for benefits was not a reasonable verification request as an insurer must accept an NF-5 in lieu of a completed application.

 

11/5/08            Corona Heights Med. P.C. v. State Farm Mut. Auto. Ins. Co.
Appellate Term, Second Department

Discovery Demand For Failure to Demonstrate Timely Denials Issued Leaving Insurer with Viable Defenses

The plaintiff, after being served with an EBT notice moved for a protective order.  The insurer cross-moved to compel plaintiff to produce documents responsive to certain document demands as well as to compel plaintiff to submit to a deposition.  The court held that the plaintiff failed to timely challenge the insurer’s discovery demand’s propriety and was obligated to provide the demanded information except for those documents that are privileged or palpably improper.  The court further held that any documents demanded that related to a defense the insurer was precluded from raising were palpably improper.  Therefore, the plaintiff was not obligated to respond to the demand. 

 

It appears in this motion that the insurer had the burden of demonstrating, on a motion to compel discovery that it timely denied the claims and was therefore able to rely upon the defense of lack of medical necessity.  The insurer failed to do so and the only documents the insurer was entitled to discovery on where those relating to the insurer’s Mallela defense.  Of course, this was after the insurer demonstrated through detailed and specific reasons why the plaintiff may not be entitled to no-fault benefits because of fraudulent incorporation.  Oh, the plaintiff was to submit to an EBT because the insurer was able to demonstrate that it had a viable Mallela defense.

 

11/5/08            Alur Med. Supply, Inc. a/a/o Jeremy Calderon v. Progressive Ins. Co.

Appellate Term, Second Department

Delay Letter Sent to Medical Provider Pending EUO of EIP Did Not Toll 30 Day Pay/Deny Rule

The insurer was found to have untimely denied a claim and the court rejected its letter to the medical provider delaying the claim pending the EUO of the eligible injured person as a verification request.  The court reasoned that the letter to the medical provider was not a verification request and subsequently the timeframe to pay or deny was not tolled as the purported verification request neither demanded nor required a response.

 

10/31/08          Avenue N Med., P.C. v. Travelers Prop. Cas. Ins. Co.

Appellate Term, Second Department
Your Prima Facie Case was Deficient?  Don’t Worry We Will Cure It By Looking at the Insurer’s Evidence

In this case the court held that the insurer’s evidence in opposition to plaintiff’s summary judgment motion cured the plaintiff’s defect in establishing its prima facie case.  The court held that even though the plaintiff’s papers were deficient in proving mailing of the claim forms the defect was cured because the insurer submitted an affidavit from its representative attaching the denials and when it received the claims in question.  Despite this, the court further held that a review of the plaintiff’s evidence revealed that it was presented to the court in admissible form. 

 

10/31/08          Psychology YM, P.C. v. Hartford Acc. & Indem. Co.

Appellate Term,  Second Department

Counsel Cannot Proffer on Excuse on Behalf of Insurer to Vacate Default Judgment – The Insurer Needs to State the Excuse

The insurer’s motion to vacate a default judgment was properly denied as the insurer failed to provide a reasonable excuse in failing to answer the complaint.  In this case, the insurer sent the summons and complaint to defense counsel on October 28, 2005, nearly two months after it was served upon the insurer.  The delay was purportedly attributed to the large volume of suits received per month by the insurer.  The problem with the excuse was that it came from counsel and not from the insurer.  The court held that counsel’s affidavit was insufficient as it was conclusory and was not based upon counsel’s personal knowledge.

 

10/30/08          Support Billing & Management Co. v. State Farm Mut. Ins. Co.
Appellate Term, Second Department

Plaintiff Cannot Maintain Same Claim when Provided Stip with Prejudice in Prior Action

The plaintiff provided a stipulation of discontinuance to the insurer with prejudice on the same bills and denials.  Despite this, the plaintiff commenced another action seeking to recover the same bills and denials.  The insurer moved to dismiss and the court granted the motion.  On appeal, the court affirmed the lower court’s decision reasoning that since the plaintiff failed to deny that the cause of action in the discontinued case identical to that in the present case the stipulation has a res judicata effect. 

 

 

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper

[email protected]

 

Of Property

 

10/30/08          Kinder Morgan Entergy Partners, LP v Ace Am. Ins. Co.

Appellate Division, First Department

Going to California:  Motion to Dismiss on Forum Non Conveniens Granted

Defendant’s motion to dismiss for forum non conveniens was granted where it was determined that the underlying loss occurred in California, the underlying claims were being litigated in California, and the residence of certain parties was also in California.  According to the Court,  California law thus had a stronger interest in applying to the current dispute.  The Court also noted that the fact that the polices in dispute were issued in New York was only one factor to be considered in determining which jurisdiction had a stronger interest. 

 

10/28/08          Sirius Am. Ins. Co. v Joline Estates, LLC

Appellate Division, Second Department
Carrier’s Motion Denied where Evidence in Support was Deemed Insufficient

Carrier’s attempted to rescind defendant’s policy as a result of a material misrepresentation.  However, where the documentary evidence submitted by carrier failed to establish the alleged misrepresentation as a matter of law, the motion to dismiss was denied. 

 

***Unfortunately, the Second Department doesn’t tell what was missing from carrier’s application***

 

10/28/08          Mirabelli v. Merchants Ins. Co. of N.H.

Appellate Division, Second Department

No Coverage where the Property was not Covered under the Policy

Plaintiff commenced this action seeking to recover for losses to a certain parcel of property owned by plaintiff.  However, the action was denied where the subject parcel did not qualify for coverage under the policy issued by carrier.  Moreover, the Second Department also noted that even if the property had been covered under the policy issued by carrier, coverage was extinguished by operation of a provision which required a particular type of smoke alarm.  Finally, the Court also noted that plaintiff had breached its duty to cooperate with carrier, thereby creating a third reason for the denial.  


and Potpourri

 

11/07/08          Blakney v. Leathers (Civil Practice)

Appellative Division, Second Department

Settlement that Wasn’t:  Plaintiff not Bound by Settlement that He Never Authorized

In this matter, plaintiff was permitted to vacate his own settlement and proceed with litigation after it was determined that he never authorized, nor consented, to the settlement.  In so holding, the Court seemed to ignore the fact that plaintiff had signed a binding Release in recognition of compensation and which was then notarized by his attorney.  Likewise, the court also ruled that defendant failed to establish that plaintiff’s attorney had apparent authority to resolve the case. 

 

11/05/08          Canete v. Judlau Contracting, Inc.  (Labor Law)

Appellate Division, Second Department

Summary Judgment Precluded where Plaintiff may have been Employed by Defendant

Plaintiff was employed, in some capacity, as a caretaker at the home of defendant’s chief executive officer.  During the course of his duties, plaintiff sustained injury and commenced an action against both Judlau and Judlau’s CEO Thomas Iovino individually.  Defendants later moved to dismiss the claims by arguing (1) that plaintiff’s claims against Iovino’s were barred by Section 11 of the Workers’ Compensation Law and (2) that Judlau had no involvement with plaintiff or his unfortunate injury. 

 

Initially, the Court determined that because plaintiff was paid for his work at the Iovino’s home through defendant Judlau  a question of fact existed as to who actually employed plaintiff.  The Court further reasoned if Judlau was the employer, the Iovino’s protection under the Workers’ Compensation would be lost as well.  Accordingly, the trial court’s denial was affirmed, and the matter remanded for determination of who actually employed the plaintiff.    

 

10/30/08          Gallagher v. New York Post (Labor Law)

Appellate Division, First Department  

Question of Fact on the Existence of Safety Devices Foils Summary Judgment on LL § 240

Plaintiff moved for summary judgment pursuant to Labor Law § 240(1) on the grounds that he was not provided with an adequate safety device at the jobsite, and that he sustained injury as a result.  In support of the motion, plaintiff produced excerpted testimony which alleged that there were no adequate safety devices at the jobsite.  However, in opposition to the application, defendant’s argued that there were weekly safety meetings, all workers were instructed how to use the safety belts, all workers knew that they were required to utilize the safety belts while on the roof, and that the belts were designed to protect workers from falling. 

 

In light of the conflicting testimony, the First Department found a question of fact and denied plaintiff’s motion accordingly.  It is noted, however, that Justices Catterson and Moskowitz dissented with the court’s opinion.  In their minority opinion, in addition to the testimony of defendant’s employee, defendant also was required to establish that there were devices available, that plaintiff knew they were available, that plaintiff knew he or she was expected to use the safety devices and that “he [or she] chose for no good reason not to do so.”  The dissent went on to state that the testimony of the defendant’s witness should not have been enough to create a question of fact on the issue of the existence of a safety device. 

 

*** Note:  this is a 3-2 decision, so I doubt we have heard the last of this case.  As always, we’ll keep you posted as it winds its way through the courts. ***

 

EARL’S PEARLS

Earl K. Cantwell, II
[email protected]

 

The Pain of Health Insurance Liens

 

Within New York State, over the past few years, there has developed a conceptual problem which bedevils both plaintiff and defense counsel, and also courts and mediators attempting to settle and resolve claims.  The issue is the nature and extent of claims by health care providers by way of “subrogation” to intervene in actions to recover medical expenses incurred by an insured as a result of a personal injury. 

 

The health care providers cite alleged common law subrogation rights, and also language frequently written into health care contracts.  There may also be provisions in the contract that the insured may not settle, release, or compromise claims to the detriment of the health insurer’s potential claims. 

 

Opposing counsel frequently argue that there is no true “subrogation” action since under CPLR 4545(c) such payments by a health insurance carrier are not  recoverable by the plaintiff in the case in chief because they are “collateral sources” of recovery.  It is difficult to conceive of a subrogation action where the subrogor cannot himself assert the claim.    This issue has given rise to other practical and procedural problems such as motions to intervene by health insurance companies to assert such “subrogation” rights, and such motions are often made at the last minute on the eve of trial or when a case is on the verge of settling.  There is a further conceptual problem as to whether such claims are truly in the nature of “subrogation” or are really an asserted lien on the file and any recovery. 

 

The Fourth Department recently issued a decision on October 3, 2008 in the case of Poblocki v. Todoro, 2008 NY Slip Op. 07384 (4th Dept. October 3, 2008), which held for the health insurance carrier on several major points.  The plaintiff in the underlying action brought a medical malpractice claim, and the health insurance carrier moved to intervene under CPLR 1012 and 1013 on grounds that it had contractual rights of subrogation for medical care provided to plaintiff’s decedent.  The following are some of the significant holdings of Poblocki:

 

1.         The general right of the health care insurer to intervene in an underlying personal injury action was affirmed.


2.         The Court indicated that, although HealthNow might be barred from commencing its own action based on the statute of limitations, that did not preclude intervention as its claims “related back” to the filing of the personal injury plaintiff’s complaint.  This is contrary to certain other cases and rulings, which indicated that if these are truly “subrogation” actions, then all rights and remedies stem from rights and remedies of the insured and the statute of limitations for the health insurer is the same as that applicable to the primary bodily injury claim.  The net effect of this ruling will be to allow health insurers to intervene in trials and settlements of cases at a much later date beyond, for example, the three (3)-year New York personal injury statute of limitations, claiming that “subrogation” rights “relate back” to the initial filing.  As stated, even assuming a right to intervene, if the right is truly one based on subrogation, it is questionable on what basis the Court granted the health insurer (in effect) an extended statute of limitations. 

 

3.         The Court further concluded that CPLR 4545(c), the collateral source statute, did not preclude the health insurer from seeking subrogation, even though in the underlying bodily injury claim the plaintiff could not recover such health insurance expenditures.  Again, if this right sounds in subrogation it is difficult to fathom the legal basis for the Court granting the health insurance carrier a right to recover expenses which could not be recovered in the underlying action.  Allowing such “back door” intervention by the health insurance carrier also largely negates the procedure and policy of CPLR 4545(c) since such collateral sources of payment, although non-recoverable by the plaintiff, can be recovered by the health insurance carrier, thereby still injecting them into the litigation, trial, and settlement discussions. 

 

The defendants in Poblocki argued that the intervention of the health insurance carrier would increase their liability for various medical expenses paid on behalf of the plaintiff’s decedent, but the Fourth Department disagreed.  The Appellate Court stated that the intervention of HealthNow did not increase their liability since the underlying complaint sought unspecified damages for all “losses and damages as a result of the defendants’ negligence and malpractice.”  In essence, the health insurance carrier argued that defendants were on notice of the claims for medical expenses by virtue of the pleadings and discovery in the case concerning the medical special damages. 

 

The Poblocki case followed a Fourth Department case of Omiatek v. Marine Midland Bank, N.A., 9 A.D.3d 831, 781 N.Y.S.2d 389 (4th Dept. 2004), which was decided in s 3-2 vote by a divided court and permitted the health insurance carrier to intervene to assert an equitable subrogation claim.  The court also held that the health insurer’s claim “related back” to the personal injury filing for statute of limitations purposes.  The dissent, authored by Justice Pigott, who is now on the Court of Appeals, cited case law from other departments at odds with such a claim, and noted that permitting a claim by the health insurer negated the collateral source rule, CPLR 4545(c).  However, the Court of Appeals then declined to hear any further appeal, since it was a non-final order. 3 N.Y.3d 738.

 

Certain plaintiff’s counsel, in an effort to avoid such interventions, have taken to carefully limiting their Bills of Particulars and other claims to exclude references to non-recoverable collateral source claims, such as medical expenses paid by the health insurance carrier, so that in the event of a motion to intervene, the health insurance carrier cannot make the argument that such medical expenses are sought to be recovered by the plaintiff or were previously part of the litigation for purposes of  the statute of limitations, relation back, notice, timeliness issues, and related arguments. 

 

            Certain issues in this ongoing debate seem ripe for Court of Appeals attention or even legislative clarification such as:  What statute of limitations applies to an intervention or claim in chief by a health insurance carrier?  Does the statute of limitations commence with the occurrence of the event, the filing of the initial complaint, or some other event?  Is such a claim for “equitable subrogation” precluded by the collateral source rule of CPLR 4545(c), or is a contractual right of subrogation required?  Furthermore, the entire concept of subrogation actions by the health insurance carriers seems at odds with the collateral source rule of CPLR

 

ACROSS BORDERS

 

11/04/08          Nischke v. Partners Mutual Ins. Com

Wisconsin Court of Appeals
Drive Other Car Exclusion Upheld

Plaintiff’s vehicle was insured by Partners Mutual Insurance Company at the time Plaintiff’s mother-in-law was involved in an accident while driving the vehicle. The Court found that Partners’ exclusion for the “drive other car” was valid and denied Plaintiff’s request for insurance coverage under their own policy.


Plaintiff’s mother-in-law was struck by an uninsured driver that ran a stop sign. Plaintiff’s mother-in-law had insurance coverage from American Family Mutual with lower UM coverage limits than Plaintiff’s policy with Partners. Plaintiffs filed suit against both insurance companies seeking UM payments under both policies. Plaintiff’s own insurance company, Partners, moved for declaratory judgment that there was no coverage based on the “drive other car” exclusion. The court found the Partners policies exclusion to be quite specific: “We do not cover bodily injury to a person while occupying, or when struck by, a motor vehicle that is not insured under this part if it is owned by you or any resident of your household.” Plaintiff’s mother-in-law lived with the Nischkes and Plaintiff was driving a vehicle owned by her mother-in-law that was not insured by the Partners policy.

Submitted by: Bill Koska, (Waller, Lansden, Dortsch & Davis)

 

11/03/2008      New Jersey Manufacturers Ins. Co. v. Horizon Blue Cross Blue Shied of New Jersey
Superior Court of New Jersey.

Insured’s Choice of Priority of Coverage Wins the Day

Health insurance designated in place of automotive personal injury coverage is an alternative to such coverage and thus arbitration provisions of the personal injury coverage do not apply to disputes.
Under New Jersey law, automobile owners have an option of designating their health insurance as their primary coverage for injuries sustained in an automobile accidents under Automobile Insurance Reduction Act ("AICRA"). If such election is made, then the personal injury protection portion of the automobile insurance (generally "PIP coverage") becomes secondary insurance. A statutory provision allows for arbitration of claims under the PIP coverage. Defendant designed his health insurance as his primary insurance in an event of an injury, with his PIP coverage as secondary insurance.

 

After an accident, Defendant assigned his right to the PIP coverage to his doctor. The doctor attempted to arbitrate a claim against the insurance companies under the statutory provision for PIP coverage allowing arbitration. The court held that health insurer whose insured has designated the health insurance as primary under AICRA is not required to participate in arbitration of claims pursuant to PIP coverage as it was an alternative to the PIP coverage, not a part of it.

Submitted by: Bill Koska, (Waller, Lansden, Dortsch & Davis)

 

REPORTED DECISIONS

 

Korson v. Preferred Mutual Insurance Company


Jacobowitz and Gubits, LLP, Walden, N.Y. (Peter R. Eriksen of
counsel), for appellant.
Eisenberg & Kirsch, Saratoga Springs, N.Y. (Jeffrey D. Wait of
counsel), for respondent.

DECISION & ORDER

In an action, inter alia, for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff in an action entitled Powell v Korson, pending in the Supreme Court, Orange County, under Index No. 0785/05, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Orange County (McGuirk, J.), dated August 1, 2007, as denied his renewed motion for summary judgment declaring that the defendant is obligated to defend and indemnify him in that action, and for an award of attorney's fees incurred in that action and in the instant action.

ORDERED that the order is modified, on the law, by adding a provision thereto searching the record and awarding summary judgment to the defendant; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant, and the matter is remitted to the Supreme Court, Orange County, for the entry of a judgment declaring that the defendant is not obligated to defend and indemnify the plaintiff in an action entitled Powell v Korson, pending in the Supreme Court, Orange County, under Index No. 0785/05.

At all relevant times, Steven Korson (hereinafter the plaintiff) and his brother, Dean Korson, resided in a house located in Warwick, New York. The plaintiff lived on the second floor. Dean, his wife Brenda, her daughter Crystal Wise (Dean's stepdaughter), and Crystal's daughter Aaliyah Powell (Dean's step-granddaughter), resided on the first floor and in the basement. In 2005, Wise brought an action against the plaintiff and Dean to recover damages for injuries allegedly sustained by Aaliyah as a result of lead poisoning while Aaliyah and Wise resided in the house. Subsequently, the defendant, Preferred Mutual Insurance Company, denied the plaintiff's claim under a homeowner's insurance policy (hereinafter the policy) for a defense and indemnification in the underlying personal injury action. Both the plaintiff and Dean were named insureds under the policy. In issuing its disclaimer, the defendant relied on a policy exclusion which excludes from liability coverage, "bodily injury to you, and if residents of your household, your relatives, and persons under the age of 21 in your care or in the care of your resident relatives." The policy contained no definition of the term "household."

The plaintiff brought the instant action, inter alia, for a judgment declaring that the defendant is obligated to defend and indemnify him in the underlying action. In a prior order, the Supreme Court denied the plaintiff's motion, among other things, for summary judgment, with leave to renew upon the completion of discovery. This Court affirmed the prior order (see Korson v Preferred Mut. Ins. Co., 39 AD3d 483), finding that, in order to prevail on the motion, the plaintiff was required to "establish either that Aaliyah was not in Dean's care" or "that Dean did not reside with the plaintiff," and that the plaintiff's moving papers "established neither" (id. at 485). After completion of discovery, which included, inter alia, the parties' depositions, and a full inspection of the premises by the defendant, the plaintiff renewed his summary judgment motion, seeking, in addition to a declaration of coverage in the underlying action, attorney's fees incurred in both that action and the instant one.

The issue presented is whether or not Dean resided with the plaintiff in the latter's household. The term "household," as used in insurance policies, has been characterized as ambiguous and devoid of any fixed meaning. Its interpretation requires an inquiry into the intent of the parties (see Auerbach v Otsego Mut. Fire Ins. Co., 36 AD3d 840, 841; Matter of Hartford Ins. Co. of Midwest v Casella, 278 AD2d 417, 418; General Assur. Co. v Schmitt, 265 AD2d 299, 300; Schaut v Fireman's Ins. Co. of Newark, 130 AD2d 477, 478-479). The interpretation must reflect the reasonable expectation of the ordinary business person and the circumstances particular to each case must be considered (see Auerbach v Ostego Mut. Fire Ins. Co., 36 AD3d at 841; Matter of Hartford Ins. Co. of Midwest v Casella, 278 AD2d at 418; General Assur. Co. v Schmitt, 265 AD2d at 300; Schaut v Fireman's Ins. Co. of Newark, 130 AD2d at 479).

In this case, it was incumbent upon the plaintiff to make a prima facie showing that he maintained a separate household from his brother Dean; he failed to do so. For example, the plaintiff's papers revealed that at the relevant time, the subject house was a single-family home, with a single mailbox, and one electric meter. There was one gas bill for the subject address. There was unrestricted access between the areas of the home in which the plaintiff lived, and in which Dean and his family lived. Furthermore, the homeowner's policy indicates that both the plaintiff and Dean are named insureds with respect to "12 Orchard Street" in Warwick, New York. There is no indication in that document that their reasonable expectation was to insure anything other than one household. Accordingly, the Supreme Court correctly denied the plaintiff's motion for summary judgment.

Furthermore, under the circumstances, the record warrants granting the defendant's request, which it made in the Supreme Court and makes again in this Court, that summary judgment be awarded in its favor, upon searching the record (see CPLR 3212[b]). Since the plaintiff is not entitled to the subject coverage, his claims for attorney's fees incurred in the underlying personal injury action and in this action likewise fail. Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Orange County, for the entry of a judgment declaring that the defendant is not obligated to defend and indemnify the plaintiff in the action entitled Powell v Korson, pending in the Supreme Court, Orange County, under Index No. 0785/05 (see Lanza v Wagner, 11 NY2d 317, 334, lv dismissed 371 US 74, cert denied 371 US 901).

In the Matter of Anthony Mangano, Jr., v. United States Fire Insurance Company


Carroll, McNulty & Kull, LLC, New York, N.Y. (Michael
Schneider of counsel), for appellant.
Bosco, Bisignano & Mascolo, Staten Island, N.Y. (Anthony
Bisignano of counsel), for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to confirm an arbitration award, in which United States Fire Insurance Company cross-petitioned to vacate the award, the appeal is from an order of the Supreme Court, Richmond County (Maltese, J.), dated July 13, 2007, which granted the petition and denied the cross petition.

ORDERED that the order is affirmed, with costs.

The petitioner was a front-seat passenger in a truck owned by his employer and operated by Alessandro Accardo. Accardo was driving on an elevated portion of the Gowanus Expressway in Brooklyn when he swerved to avoid a vehicle that had cut him off. Accardo lost control of the truck and the front right portion of the truck struck a guardrail in the right lane. The impact caused the passenger door to open and the petitioner, who was not wearing a seat belt, was ejected from the truck. The petitioner was flung over the guardrail and landed some 30 feet below the overpass on his back, sustaining spinal fractures. He underwent three spinal surgeries and is permanently partially disabled.

As the driver of the offending vehicle fled the scene of the accident and was never identified, the petitioner filed a claim for uninsured motorist benefits with his employer's insurer, United States Fire Insurance Company (hereinafter USFIC). At the arbitration hearing, USFIC asserted the seat belt defense. Its experts opined that if the petitioner had been wearing the available seat belt, it would have prevented his ejection from the vehicle and reduced the extent of his injuries. The arbitrator found the petitioner sustained damages in the sum of $3,500,000, which he reduced by 80% due to the petitioner's failure to use the available seat belt. In the order appealed from, the Supreme Court granted the petition to confirm the arbitration award, and denied USFIC's cross petition to vacate the award. We affirm.

Since a claim by an insured against an insurance carrier under the uninsured motorists' endorsement is subject to compulsory arbitration, the arbitrator's award is subject to "closer judicial scrutiny" under CPLR 7511(b) than it would receive had the arbitration been conducted pursuant to a voluntary agreement between the parties (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223). "To be upheld, an award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious" (id. at 223; see Matter of Fireman's Fund Ins. Co. v Allstate Ins. Co., 46 AD3d 560). Under the circumstances presented in this record, the arbitrator's award finds ample evidentiary support in the record and is rationally based (see Matter of State Farm Mut. Auto. Ins. Co. v Arabov, 2 AD3d 531).  

Krauer v. Hines


Stewart H. Friedman (John T. Ryan, Riverhead, N.Y. [Robert F.
Horvat], of counsel), for defendant third-party plaintiff-respondent.
Kelly, Rode & Kelly, LLP, Mineola, N.Y. (Susan M. Ulrich of
counsel), for defendants-respondents.
Scalzi & Nofi, PLLC, Melville, N.Y. (Vincent J. Nofi of
counsel), for third-party
defendant-respondent Ronald Pina (joining
in the briefs filed by the defendant
third-party plaintiff-respondent and
defendants-respondents).

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Satterfield, J.), entered September 21, 2007, which granted the separate motions of the defendant third-party plaintiff, John Hines, and the defendants, Michael Cardineau and Richard J. Cardineau, for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and granted the motion of the third-party defendants Matthew Kay and Susan Kay, and the separate motion of the third-party defendant Ronald Pina, for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with one bill of costs payable to the defendant third-party plaintiff-respondent and the defendants-respondents appearing separately and filing separate briefs.

On their separate motions for summary judgment, the defendant third-party plaintiff, John Hines, the defendants, Michael Cardineau and Richard J. Cardineau, the third-party defendants Matthew Kay and Susan Kay, and the third-party defendant Ronald Pina, met their prima facie burdens of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact. Since neither the affidavit of the plaintiff's treating chiropractor nor the affirmation of his treating neurologist were based on a recent examination, they were insufficient to raise a triable issue of fact as to whether he sustained a serious injury based on either a permanent consequential limitation of use of a body organ or member, or a significant limitation of use of a body function or system (see Deutsch v Tenempaguay, 48 AD3d 614, 615; Ali v Mirshah, 41 AD3d 748, 749; Mejia v DeRose, 35 AD3d 407; Elgendy v Nieradko, 307 AD2d 251). In addition, the plaintiff failed to provide any competent medical evidence establishing that he sustained a medically-determined injury of a nonpermanent nature which prevented him from performing his usual and customary activities for 90 of the 180 days following the subject accident (see Kuchero v Tabachnikov, 54 AD3d 729; Sainte-Aime v Ho, 274 AD2d 569, 570).
FISHER, J.P., LIFSON, COVELLO and BALKIN, JJ., concur.

Soriano v. Darrell


Tantone & Gulotta, Ronkonkoma, N.Y. (Anthony J. Gulotta and
Charles W. Benton of counsel), for appellant.
Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y.
[Marshall D. Sweetbaum], 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 (R. Doyle, J.), dated June 25, 2007, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff principally relied upon the affirmed narrative report of his treating physician. This report failed to raise a triable issue of fact as to whether the plaintiff sustained a permanent consequential limitation of use of a body organ or member and/or a significant limitation of use of a body function or system, since the findings contained therein were not based on a recent examination (see Amato v Fast Repair Inc., 42 AD3d 477; Ali v Mirshah, 41 AD3d 748; Mejia v DeRose, 35 AD3d 407; Marin v Kakivelis, 251 AD2d 462). The plaintiff's remaining submissions were insufficient to raise a triable issue of fact (see Shvartsman v Vildman, 47 AD3d 700; Collins v Stone, 8 AD3d 321, 322).
FISHER, J.P., FLORIO, ANGIOLILLO, DICKERSON and BELEN, JJ., concur.

Johnson v. County of Suffolk


Kral, Clerkin, Redmond, Ryan, Perry & Girvan, Smithtown, N.Y.
(Geoffrey H. Pforr and Thomas F. Maher of counsel), for
appellants.
Siben & Siben LLP, Bay Shore, N.Y. (Alan G. Faber of
counsel), for plaintiffs-respondents in Appeal
No. 1 and respondents in Appeal No. 2.
MacKay, Wrynn & Brady, LLP, Douglaston, N.Y. (Austin P.
Murphy, Jr., of counsel), for
defendants-respondents in Appeal No. 1.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants County of Suffolk and Miguel Vasquez appeal, as limited by their brief, from so much of (1) an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated June 7, 2007, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that neither of the plaintiffs George Johnson and Richard Johnson sustained a serious injury within the meaning of Insurance Law § 5102(d) and granted that branch of the cross motion of the defendants On Time Auto Parts, LLC, and Michael Toscano which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and (2) an order of the same court dated November 19, 2007, as, upon reargument, adhered so much of to its original determination as denied their motion for summary judgment.

ORDERED that the appeal from so much of the order dated June 7, 2007, as denied the appellants' motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs George Johnson and Richard Johnson sustained a serious injury within the meaning of Insurance Law § 5102(d), is dismissed, as that order was superseded by the order dated November 19, 2007, made upon reargument; and it is further,

ORDERED that the order dated November 19, 2007, is reversed insofar as appealed from, on the law, upon reargument, so much of the order dated June 7, 2007, as denied the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that neither of the plaintiffs George Johnson and Richard Johnson sustained a serious injury within the meaning of Insurance Law § 5102(d) is vacated, and the appellants' motion for summary judgment is granted; and it is further,

ORDERED that the appeal from so much of the order dated June 7, 2007, as granted the cross motion of the defendants On Time Auto Parts, LLC, and Michael Toscano, is dismissed as academic in light of our determination of the appeal from the order dated November 19, 2007; and it is further,

ORDERED that one bill of costs is awarded to the appellants, payable by the plaintiffs.

During a snowstorm on the afternoon of April 7, 2003, a bus owned by the defendant County of Suffolk and operated by the defendant Miguel Vasquez (hereinafter together the appellants) struck the rear portion of a station wagon owned by the defendant On Time Auto Parts, LLC, and operated by the defendant Michael Toscano, in the eastbound roadway of Montauk Highway, in the Town of Islip. As a result of that collision, the station wagon was propelled into the westbound roadway and into a vehicle operated by the plaintiff George Johnson (hereinafter George), in which his son, the plaintiff Richard Johnson (hereinafter the Richard), was a passenger. The plaintiffs, including George's wife, who asserted a derivative claim, thereafter commenced this action and, inter alia, the appellants moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that neither George nor Richard sustained a serious injury within the meaning of Insurance Law § 5102(d).

The appellants established a prima facie case that neither George nor Richard sustained a serious injury within the meaning of Insurance Law § 5102(d), through the affirmed reports of orthopedic surgeon Joseph L. Paul, who examined both of them approximately two months after the accident and found that range of motion was normal in various operations of George's cervical spine and Richard's lumbar spine (see Toure v Avis Rent a Car Sys., 98 NY2d 345, 352; Gaddy v Eyler, 79 NY2d 955, 956-957). Dr. Paul further concluded that neither George and Richard had sustained a disability. "A defendant who submits admissible proof that the plaintiff has a full range of motion, and that she or he suffers from no disabilities causally related to the motor vehicle accident, has established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), despite the existence of an MRI which shows herniated or bulging discs" (Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50). The medical evidence which the plaintiffs submitted in opposition failed to raise a triable issue of fact (see CPLR 3212[b]). Notably, the restrictions of motion found by George and Richard's treating chiropractor, Dennis J. DaSilva, were not based on a recent examination (see Amato v Fast Repair Inc., 42 AD3d 477, 478). Indeed, Dr. DaSilva indicated that his treatment of George and Richard terminated approximately 75 days after the accident and that he did not subsequently examine either of them.

Accordingly, the Supreme Court should have granted the appellants' motion for summary judgment.
SANTUCCI, J.P., DILLON, DICKERSON and CHAMBERS, JJ., concur.

Webb v. Keyspan Corporation


Leav & Steinberg, LLP, New York, N.Y. (Joseph P. Stoduto of
counsel), for appellant.
Cullen and Dykman, LLP, Brooklyn, N.Y. (Joseph Miller and
Joseph Delfino of counsel), for
respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated January 18, 2008, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

Contrary to the Supreme Court's determination, the defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motion, the defendants relied upon the affirmed medical report of their orthopedic surgeon, Dr. Philip G. Taylor. During range of motion testing, Dr. Taylor noted that when the plaintiff was performing straight leg testing in the supine position, he was only able to lift his left leg to 70 degrees, but had no problems on the right side. Dr. Taylor failed to compare this finding to what is normal. Absent such comparative quantification, the court cannot conclude that the decreased lumbar range of motion noted was mild, minor, or slight so as to be considered insignificant within the meaning of the no-fault statute (see Yashayev v Rodriguez, 28 AD3d 651; see also Gaccione v Krebs, 53 AD3d 524).

Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiff were sufficient to raise a triable issue of fact (see Gaccione v Krebs, 53 AD3d 524; Yashayev v Rodriguez, 28 AD3d 657; Coscia v 938 Trading Corp., 283 AD2d 538).
RIVERA, J.P., FLORIO, ANGIOLILLO, McCARTHY and CHAMBERS, JJ., concur.

Merzguioui-Gray v. Shlomit Express Cab Corp.


Marjorie E. Bornes, New York, N.Y., for appellants.
Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., 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, Queens County (Elliot, J.), entered February 19, 2008, which denied their 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 modified, on the law, by deleting the provision thereof denying that branch of the defendants' motion which was to dismiss the complaint insofar as asserted by the plaintiff Kawtar Nasir and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

The Supreme Court correctly denied that branch of the defendants' motion which was to dismiss the complaint insofar as asserted by the plaintiff Soloua Merzguioui-Gray (hereinafter Gray). The defendants failed to meet their prima facie burden of showing that Gray did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of that branch their motion, the defendants relied on the affirmed medical report of Dr. Wendy Cohen, their examining neurologist, who examined Gray on November 15, 2006. In that report, despite the fact that Dr. Cohen admitted to reviewing the plaintiffs' bill of particulars, she never examined Gray's left shoulder, which Gray alleged therein was injured in the subject accident (see Coleman v Shangri-La Taxi, Inc., 49 AD3d 587; Monkhouse v Maven Limo, Inc., 44 AD3d 630, 630-631; O'Neal v Bronopolsky, 41 AD3d 452; Hughes v Cai, 31 AD3d 385; Loadholt v New York City Tr. Auth., 12 AD3d 352). Therefore, since the defendants failed to establish their prima facie entitlement to judgment as a matter of law in the first instance as to Gray, it is unnecessary to consider whether her opposing papers were sufficient to raise a triable issue of fact (see Coleman v Shangri-La Taxi, Inc., 49 AD3d 587; Monkhouse v Maven Limo, Inc., 44 AD3d 630; Coscia v 938 Trading Corp., 283 AD2d 538).

The Supreme Court erred, however, in denying that branch of the defendants' motion which was to dismiss the complaint insofar as asserted by the plaintiff Kawtar Nasir. Contrary to the Supreme Court's holding, the defendants met their prima facie burden of showing that Nasir did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). In opposition, Nasir failed to raise a triable issue of fact. Nasir relied on the affirmation of Dr. Serge Delaleu, her treating physician. The affirmation of Dr. Delaleu was without any probative value since he clearly relied on the unsworn report of Dr. Salina Balilo in coming to his conclusions (see Matra v Raza, 53 AD3d 570; Malave v Basikov, 45 AD3d 539; Verette v Zia, 44 AD3d 747; Furrs v Griffith, 43 AD3d 389; see also Friedman v U-Haul Truck Rental, 216 AD2d 266, 267). The submissions of Dr. John T. Rigney and Dr. Robert Scott Schepp, Nasir's treating radiologists, merely established that as of April 2004 and July 2004 there were disc bulges in Nasir's spine at C2-C3, C3-C4, C4-C5, C5-C6, C6-C7, and L5-S1. The mere existence of a 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 LaFerlita v Seagull 2000, Inc., 54 AD3d 905; Smeja v Fuentes, 54 AD3d 326; Kilakos v Mascera, 53 AD3d 527). The self-serving affidavit of Nasir was insufficient to raise a triable issue of fact (see Uribe-Zapata v Capallan, 54 AD3d 936; Michel v Blake, 52 AD3d 486, 486-487; Shvartsman v Vildman, 47 AD3d 700, 701; Yakubov v CG Trans Corp., 30 AD3d 509, 510).

Nasir also failed to proffer competent medical evidence that she sustained a medically-determined injury of a nonpermanent nature which prevented her, for 90 of the 180 days following the subject accident, from performing her usual and customary activities (see Sainte-Aime v Ho, 274 AD2d 569).
SKELOS, J.P., RITTER, DILLON, CARNI and LEVENTHAL, JJ., concur.

Gastaldi v. Chen


Stockschlaeder, McDonald & Sules, P.C., New York, N.Y.
(Richard T. Sules of counsel), for appellants.
Gary Kauget, P.C., Brooklyn, N.Y., for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Minardo, J.), dated July 6, 2007, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Peter Gastaldi against them on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Peter Gastaldi against them is granted.

The Supreme Court providently exercised its discretion in considering the surreply of the plaintiffs, which was in response to the gap-in-treatment argument raised in the defendants' reply papers for the first time (see Allstate Ins. Co. v Raguzin, 12 AD3d 468, 469).

On the threshold issue of serious injury, the defendants met their prima facie burden of showing that the plaintiff Peter Gastaldi did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957; see also Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50). In opposition, Gastaldi failed to raise a triable issue of fact. The reports of Dr. Y. Fill Slukhinsky and Dr. William Bongiorno were without any probative value in opposing the defendants' motion since they were unaffirmed (see Uribe-Zapata v Capallan, 54 AD3d 936; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Pena, 42 AD3d 514; see also Grasso v Angerami, 79 NY2d 813; Pagano v Kingsbury, 182 AD2d 268).

The report of Dr. Gregg Scudero dated July 26, 2004, failed to raise a triable issue of fact since he failed to set forth the objective tests he performed in coming to his conclusions therein that had decreased range of motion in his cervical and lumbar regions (see Murray v Hartford, 23 AD3d 629; Nozine v Sav-On Car Rentals, 15 AD3d 555; Bailey v Ichtchenko, 11 AD3d 419; Kauderer v Penta, 261 AD2d 365).

The reports of Dr. Timothy Barber were also insufficient to raise a triable issue of fact since the reports do not relate any injuries noted therein to the subject accident (see Itskovich v Lichenstadter, 2 AD3d 406; Bonner v Hill, 302 AD2d 544).

The magnetic resonance imaging (hereinafter MRI) reports of Dr. Alan Berlly were properly relied upon by Gastaldi, despite not being affirmed, because the results of these reports were set forth in the report of the defendants' examining neurologist (see Williams v Clark, 54 AD3d 942; Zarate v McDonald, 31 AD3d 632; Ayzen v Melendez, 299 AD2d 381). The lumbar spine MRI report merely noted that as of August 17, 2004, Peter showed evidence of a herniated disc at L5-S1. The cervical spine MRI report revealed a normal study. The mere existence of a herniated 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 LaFerlita v Seagull 2000, Inc., 54 AD3d 905; Siegel v Sumaliyev, 46 AD3d 666; Yakubov v CG Trans Corp., 30 AD3d 509, 510; Kearse v New York City Tr. Auth., 16 AD3d 45, 49). Gastaldi's self-serving affidavit was insufficient to raise a triable issue of fact (see LaFerlita v Seagull 2000, Inc., 54 AD3d 905).

Gastaldi also failed to submit competent medical evidence that he was unable to perform substantially all of his daily activities for not less than 90 of the first 180 days subsequent to the subject accident (see LaFerlita v Seagull 2000, Inc., 54 AD3d 905; Sainte-Aime v Ho, 274 AD2d 569).
SKELOS, J.P., RITTER, DILLON, CARNI and LEVENTHAL, JJ., concur.

Eldrainy v. Hassain


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellants.
Richard M. Altman, Bronx, N.Y., for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Taylor, J.), entered January 29, 2008, 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 reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

The defendants met their prima facie burden by showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact. While the sworn medical report of Dr. Jeffrey Rauch and the affirmed medical report of Dr. Arkadiy Shusterman set forth significant range-of-motion limitations in the plaintiff's cervical and lumbar spine based on recent examinations, neither these experts nor the plaintiff proffered objective medical evidence that revealed the existence of limitations in his spine that were contemporaneous with the subject accident (see Leeber v Ward,AD3d, 2008 NY Slip Op 07629 [2d Dept 2008]; Ferraro v Ridge Car Serv., 49 AD3d 498; D'Onofrio v Floton, Inc., 45 AD3d 525).

The affirmation of Dr. Harvey Lefkowitz essentially established that, as of February 11, 2004, there was evidence that the plaintiff had herniated discs at C4-5 and C5-6. The mere existence of a herniated 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 Sealy v Riteway-1, Inc., 54 AD3d 1018; Kilakos v Mascera, 53 AD3d 527, lv deniedNY3d, 2008 NY Slip Op 86661 [2008]; Cerisier v Thibiu, 29 AD3d 507; Bravo v Rehman, 28 AD3d 694; Kearse v New York City Tr. Auth., 16 AD3d 45). The plaintiff's self-serving affidavit was insufficient to meet that requirement (see Rabolt v Park, 50 AD3d 995; Young Soo Lee v Troia, 41 AD3d 469; Nannarone v Ott, 41 AD3d 441). The plaintiff's remaining submissions did not constitute competent evidence sufficient to oppose the defendants' motion since they were neither sworn to, affirmed, notarized, nor certified (see Grasso v Angerami, 79 NY2d 813; Uribe-Zapata v Capallan, 54 AD3d 936; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; Pagano v Kingsbury, 182 AD2d 268; see also Mejia v DeRose, 35 AD3d 407; Kunz v Gleeson, 9 AD3d 480).

Finally, the plaintiff failed to submit competent medical evidence that the injuries he allegedly sustained in the accident rendered him unable to perform substantially all of his daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Rabolt v Park, 50 AD3d 995; Roman v Fast Lane Car Serv., Inc., 46 AD3d 535, 536; Sainte-Aime v Ho, 274 AD2d 569, 570).
SKELOS, J.P., RITTER, DILLON, CARNI and LEVENTHAL, JJ., concur.

Collado v. Satellite Solutions & Electronics of WNY, LLC


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

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Weiss, J.), dated January 31, 2008, 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 reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is granted.

The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact. While the submissions of Dr. David Adin, one of the plaintiff's treating osteopaths, revealed significant range of motion limitations of her cervical spine and right shoulder that were based on a recent examination, the plaintiff failed to proffer objective medical evidence showing range of motion limitations in her spine, or anywhere else, that were contemporaneous with the subject accident (see LaFerlita v Seagull 2000, Inc., 54 AD3d 905; Kurin v Zyuz, 54 AD3d 902; Hackett v AAA Expedited Freight Sys., Inc., 54 AD3d 721; Camacho v Dwelle, 54 AD3d 706; Perdomo v Scott, 50 AD3d 1115; Ferraro v Ridge Car Serv., 49 AD3d 498). In fact, the only quantified range of motion findings submitted by the plaintiff were in the report of Dr. Adin dated October 16, 2007. Those findings were based on an examination that occurred a year after the subject accident (see Suk Ching Yeung v Rojas, 18 AD3d 863).

The affirmation of Dr. Jacob Lichy, the plaintiff's treating radiologist, merely noted the findings contained in the magnetic resonance imaging (hereinafter MRI) reports of January 13, 2007, which revealed evidence of a disc bulge at C3-4 and a tear of the anterior and posterior lips of the glenoid labrum in the plaintiff's right shoulder. The mere existence of a herniated or bulging disc, and even a tear in a tendon, is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration (see Cornelius v Cintas Corp., 50 AD3d 1085, 1087; Shvartsman v Vildman, 47 AD3d 700). Furthermore, Dr. Lichy expressed no opinion on the cause of the findings he made as a result of his review of the plaintiff's MRI reports (see Collins v Stone, 8 AD3d 321, 322).

Moreover, neither the plaintiff nor her experts adequately explained the 11-month gap between her last examination by Dr. Christopher Kyriakides on November 21, 2006, and her most recent examination by Dr. Adin on October 16, 2007 (see Pommells v Perez, 4 NY3d 566; LaFerlita v Seagull 2000, Inc., 54 AD3d 905; Kasel v Szczecina, 51 AD3d 872). In fact, her own deposition testimony, upon which she relied in opposing the defendants' motion, revealed that her treatment was stopped because her doctor said that she did not need it any longer.

Based on the evidence submitted, the plaintiff also failed to proffer competent medical evidence that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days subsequent to the subject accident (see LaFerlita v Seagull 2000, Inc., 54 AD3d 905; Sainte-Aime v Ho, 274 AD2d 569).
FISHER, J.P., LIFSON, COVELLO and BALKIN, JJ., concur.

Wolff v. Schweitzer


Calendar Date: September 5, 2008
Before: Cardona, P.J., Mercure, Peters, Carpinello and Kavanagh, JJ.

Harding Law Firm, Niskayuna (Charles R. Harding of
counsel), for appellant.
Burke, Scolamiero, Mortati & Hurd, Albany (Jeffrey
E. Hurd of counsel), for respondent.

MEMORANDUM AND ORDER
Peters, J.

Appeal from an order of the Supreme Court (Hard, J.), entered October 10, 2007 in Albany County, which granted defendant's motion for summary judgment dismissing the complaint.

In October 2004, plaintiff's vehicle, while stopped at an intersection, was struck from behind by a vehicle being driven by defendant. Following the accident, plaintiff claimed that he had significant pain and stiffness in his lower back, right hip and lower right extremities, as well as numbness in his right foot. He later commenced this action claiming serious injury within the meaning of Insurance Law § 5102 (d) as a result of the accident. Specifically, plaintiff asserted a "permanent loss of use" and a "permanent consequential limitation" of his back and lower extremities (Insurance Law § 5102 [d]). Following joinder of issue, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury. Supreme Court granted defendant's motion, prompting this appeal.

Defendant, who bore the initial burden of establishing that plaintiff did not suffer a causally-related serious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002]; Felton v Kelly, 44 AD3d 1217, 1218 [2007]), proffered, among other things, the expert affidavit of Christopher Calder, a neurologist who performed an independent medical examination of plaintiff in January 2007. Calder opined that plaintiff's range of motion was either within normal limits or limited by subjective complaints of pain or stiffness and that there was no objective evidence that plaintiff suffered a serious or permanent injury to his back or lower extremities as a result of the accident. In so finding, Calder noted that plaintiff underwent cervical decompression surgery in 1993 and that a 2001 preaccident MRI revealed a central disc protrusion and severe spinal stenosis at L4-5. While noting that plaintiff's postaccident MRIs revealed a herniated disc at L4-5, Calder opined that plaintiff's documented history of "cervical stenosis and cervical myelopathy . . . three years before the subject accident [is] very similar" to that which has been demonstrated after the subject accident and, further, that plaintiff's disc herniation could not be related to the accident because the MRI findings before and after the accident do not indicate any abnormalities that would suggest that the disc herniation was acute. Rather, Calder opined that the herniation occurred as a result of the natural and expected progression of plaintiff's preexisting spinal condition. We find this evidence sufficient to sustain defendant's burden, thus placing the onus upon plaintiff to "set forth competent medical evidence based upon objective medical findings and tests to support his claim of serious injury and to connect the condition to the accident" (Blanchard v Wilcox, 283 AD2d 821, 822 [2001]; see Toure v Avis Rent A Car Sys., 98 NY2d at 350; Franchini v Palmieri, 307 AD2d 1056, 1057 [2003], affd 1 NY3d 536 [2003]).

To substantiate a claim under the permanent consequential limitation category,[FN1] "'the medical evidence submitted by plaintiff must contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff's present limitations to the normal function, purpose and use of the affected body organ, member, function or system'" (Pugh v DeSantis, 37 AD3d 1026, 1029 [2007], quoting John v Engel, 2 AD3d 1027, 1029 [2003]; see Saleh v Bryant, 49 AD3d 991, 992 [2008]). Additionally, "with persuasive evidence that plaintiff's alleged pain and injuries were related to a preexisting condition, plaintiff had the burden to come forward with evidence addressing defendant's claimed lack of causation" (Pommells v Perez, 4 NY3d 566, 580 [2005]; see Coston v McGray, 49 AD3d 934, 935 [2008]).

In opposition to defendant's motion, plaintiff relied upon the affirmations of Samuel Dulay, his treating physician, and Kevin Barron, a neurologist who performed an independent medical examination of plaintiff. Barron's affirmation, however, merely incorporated a copy of his report which was based upon an examination of plaintiff that occurred almost two years prior to defendant's summary judgment motion (see Chunn v Carman, 8 AD3d 745, 746 [2004]; Lisa v Pastor, 262 AD2d 368, 368 [1999]; Covington v Cinnirella, 146 AD2d 565, 566 [1989]). Indeed, Barron noted in his affirmation that plaintiff's condition was improving and, moreover, both the medical records following Barron's report and plaintiff's October 2006 examination before trial testimony reveal that his complaints with respect to his right hip, knee and thigh have either improved or have gone away. Further, although Barron opined that plaintiff had a herniated disc at L4-5 which "appears" to be related to the accident and that his underlying lumbar stenosis was permanently aggravated thereby, leading to plaintiff's current lower limb pain and diminished mobility, Barron failed to adequately quantify plaintiff's current limitations, contrast those limitations to the normal function, purpose and use of the affected body organ, function or system, or demonstrate that his findings were based on anything other than plaintiff's subjective complaints (see Pianka v Pereira, 24 AD3d 1084, 1086 [2005]; Gonzalez v Green, 24 AD3d 939, 940-941 [2005]; Serrano v Canton, 299 AD2d 703, 704 [2002]).

We also find that Dulay's affirmation was insufficient to raise a question of fact as to whether plaintiff suffered a serious injury under this category, as he failed to set forth any objective medical basis for his opinion that the accident exacerbated plaintiff's prior spinal condition. Dulay diagnosed plaintiff as suffering from cervical myelopathy with radiculopathy, which preexisted the accident but was permanently aggravated thereby, resulting in a permanent consequential limitation with respect to movement in plaintiff's foot, balance, feeling in his right leg, and urinary function. Notably, however, Dulay failed to set forth any diagnostic tests or other objective medical evidence for his findings in this respect, instead merely noting that plaintiff was "reporting and exhibiting classic symptoms" of this condition, which inescapably "lead[s] to the conclusion that these findings were based on plaintiff's subjective complaints" (John v Engel, 2 AD3d at 1029; see Pianka v Pereira, 24 AD3d at 1086). Further, although Dulay opined that plaintiff's "foot drop" and spastic gait were objective symptoms of plaintiff's condition, such conditions do not constitute objective evidence of causation inasmuch as plaintiff's medical records clearly reveal that he experienced these problems to some degree prior to the accident, and Dulay failed to provide a sufficient quantitative or qualitative assessment of plaintiff's limitations prior to the accident by which the claimed aggravation can be measured (see Pinkowski v All-States Sawing & Trenching, 1 AD3d 874, 875 [2003]; Hines v Capital Dist. Transp. Auth., 280 AD2d 768, 770 [2001]; see also Franchini v Palmieri, 1 NY3d 536, 537 [2003]). Lastly, to the extent that plaintiff claims that his urinary problems constitute objective evidence of exacerbation since the record reveals that these problems occurred only after the subject accident, we need only note that Dulay, a general practitioner, merely commented that urinary urgency "is very common with people who have injuries to the spinal cord and its function." Dulay did not specify any objective medical evidence to relate plaintiff's alleged urinary problems to the accident or to demonstrate that this condition is permanent, nor did he exclude any other possible causes for this condition [FN2]. For all of these reasons, plaintiff has failed to raise an issue of fact sufficient to withstand summary judgment.

Cardona, P.J., Mercure, Carpinello and Kavanagh, JJ., concur.

ORDERED that the order is affirmed, with costs.

Footnotes


Footnote 1:Plaintiff conceded at oral argument that there was no proof that he suffered a serious injury under the permanent loss of use category.

Footnote 2:Indeed, plaintiff admittedly did not visit a urologist for his alleged urinary problems and ceased taking medication that "worked" in treating this condition.

 

Pav-Lak Industries, Inc., v. Arch Insurance Company


Melito & Adolfsen P.C., New York (S. Dwight Stephens of
counsel), for appellants-respondents.
D'Amato & Lynch, LLP, New York (Neal M. Glazer of
counsel), for respondent-appellant.

Order and judgment (one paper), Supreme Court, New York County (Edward H. Lehner, J.), entered January 29, 2008, which denied plaintiffs' motion for summary judgment and granted defendant Arch Insurance Company's cross motion for summary judgment to the extent of declaring that plaintiff Zurich American Insurance Company's policy is primary to Arch's insurance policy, that Arch's policy is excess to Zurich's policy, that Arch is not obligated to defend Pav-Lak in the underlying personal injury action, and that the $1 million deductible in the Arch policy applies to the underlying action, unanimously modified, on the law, to declare that the Arch policy is primary to the Zurich policy, that the Zurich policy is excess to the Arch policy, and that Arch is obligated to defend and indemnify Pav-Lak in the underlying action, and otherwise affirmed, without costs.

The additional insured coverage endorsement of Arch's policy extends coverage to injuries sustained by the sub-subcontractor's employee, because those injuries arose out of the operations or work of the subcontractor (see Tishman Constr. Corp. of N.Y. v CNA Ins. Co., 236 AD2d 211 [1997]; Consolidated Edison Co. of N.Y. v Hartford Ins. Co., 203 AD2d 83, 83-84 [1994]). Thus, Arch was required to disclaim coverage. Arch's disclaimer letter dated May 12, 2005 was effective as against Pav-Lak because Pav-Lak received a copy of it (see Schlott v Transcontinental Ins. Co., Inc., 41 AD3d 339 [2007], lv denied 9 NY3d 817 [2008]), and, further, the grounds of disclaimer were stated with sufficient specificity (see Realm Natl. Ins. Co. v Hermitage Ins. Co., 8 AD3d 110 [2004]). However, Arch's 45-day delay in disclaiming coverage was unreasonable as a matter of law. There was no need for an investigation, because the basis for the disclaimer was readily apparent from Zurich's tender letter, which Arch received on March 28, 2005 (see West 16th St. Tenants Corp. v Public Serv. Mut. Ins. Co., 290 AD2d 278 [2002], lv denied 98 NY2d 605 [2002]; McGinley v Odyssey Re (London), 15 AD3d 218 [2005]).

By failing to give Pav-Lak timely notice of its disclaimer, Arch waived its reliance on the Ranger Steel exclusion as a basis for disclaiming coverage (see Markevics v Liberty Mut. Ins. Co., 97 NY2d 646, 648-649 [2001]). In any event, however, resolving the ambiguity of the language of the exclusion against Arch, the exclusion does not apply to Pav-Lak (see Belt Painting Corp. v TIG Ins. Co., 100 NY2d 377, 383 [2003]).

Arch did not waive the $1 million deductible in its policy, because the deductible endorsement does not bar coverage or implicate policy exclusions and therefore is not subject to the time requirements for disclaiming coverage under Insurance Law § 3420(d) (see Power Auth. of State of N.Y. v National Union Fire Ins. Co. of Pittsburgh, 306 AD2d 139 [2003]). Nor is the endorsement a warranty under Insurance Law § 3106(a), since it contains no condition precedent to coverage.

In its contract with Pav-Lak, defendant B & J Welding & Iron Works agreed to name Pav-Lak as an additional insured on a primary basis and agreed that Pav-Lak's own general liability insurance would be excess only and non-contributory to B & J's policy. In accordance with that contract, B & J obtained the Arch policy, which contained an additional insured endorsement providing coverage to any entity that B & J was contractually required to insure for liability arising out of B & J's work or operations. This additional insured endorsement unambiguously
applied to Pav-Lak (see e.g. Tishman Constr. Corp. of N.Y. v American Mfrs. Mut. Ins. Co., 303 AD2d 323, 324 [2003]). Pav-Lak's commercial general liability policy, the Zurich policy, provided that its coverage would be excess over "[a]ny other primary insurance available to you covering liability for damages arising out of the premises or operations for which you have been added as an additional insured by attachment of an endorsement." Thus, the Zurich policy is excess to the Arch policy (see id.)

Cohen v. Medical Malpractice Insurance Pool of New York State


Rivkin Radler LLP, Uniondale (Evan H. Krinick of counsel), for
appellant.
Bondi & Iovino, Garden City (Desiree Lovell Fusco of
counsel), for respondent.

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered April 30, 2007, which, in a declaratory judgment action involving defendant-appellant insurer's obligation to defend and indemnify plaintiff in an underlying action for personal injuries, denied the insurer's motion for summary judgment, unanimously reversed, on the law, with costs, the motion granted, and it is declared that the insurer is not obligated to defend or indemnify plaintiff in the underlying action.

Plaintiffs in the underlying action allege, inter alia, that plaintiff herein rendered negligent genetic counseling services; plaintiff herein alleges that she rendered the genetic counseling services in question as an employee of the physician named in the underlying action under whose medical malpractice policy she is claiming coverage. The policy in question covers the physician himself (referred to in the policy as "you") and the physician's solo professional service corporation, the physician's administrator, qualified temporary substitute physician, and estate. In addition, the policy covers "Vicarious Liability Claims," defined as "liability arising from Claims made against you because of Professional Services which were provided (or should have been provided) by other people for whose conduct you are legally responsible." The policy warns, however: "Be sure you understand that you are not covered under this policy for the acts of certain people in your employment for whose conduct you are responsible UNLESS THEY ARE INSURED UNDER A SEPARATE PROFESSIONAL LIABILITY INSURANCE POLICY," in which event the insurer would pay the excess of the vicarious liability claim over the coverage provided by the other policy. The exclusions section of the policy lists such "certain people": "Employed Physicians," physician's assistants, specialist's assistants, nurses providing anesthesia services, nurse practitioners, and midwives employed by the physician.

Plaintiff argues, and the motion court agreed, that the policy is ambiguous as to whether it covers employees of the physician other than the ones listed in the exclusions section. As the motion court saw it, to generally exclude employees would be to render the vicarious liability provision "meaningless and superfluous" since, "in the event that it is determined that [the physician] is vicariously liable for [plaintiff's] acts, the [underlying plaintiffs'] claim made against [plaintiff] is also a claim made against [the physician], the insured under [defendant's] policy." We reject that reasoning, and find that the policy's vicarious liability coverage is not ambiguous. That the physician is covered for "[s]ervices which were provided ... by other people for whose conduct [he is] legally responsible" does not create coverage for those "other people" (cf. National Gen. Ins. Co. v Hartford Acc. & Indem. Co., 196 AD2d 414 [1993] [no evidence that employee of insured was intended to be covered where employee was neither named nor added by endorsement]).

Sirius America Insurance Company v Joline Estates, LLC


Marshall Conway Wright & Bradley P.C., New York, N.Y.
(Norman J. Golub and Stacey H. Snyder of counsel), for appellants.
White, Quinlan & Staley, LLP, Garden City, N.Y. (Eugene
Patrick Devany of counsel), for
plaintiff-respondent.
Garcia & Stallone, Melville, N.Y. (Karl Zamurs of counsel), for
defendant Iter Campoverde.


DECISION & ORDER

In an action, inter alia, for a judgment declaring that the plaintiff, Sirius America Insurance Company, is not obligated to defend and indemnify the defendant Joline Estates, LLC, in an underlying action entitled Campoverde v Joline Estates, LLC, pending in the Supreme Court, Richmond County, under Index No. 102442/06, the defendants Underwriters at Lloyds and Harbin Adjustment Company, Inc., appeal from an order of the Supreme Court, Nassau County (Parga, J.), dated December 10, 2007, which, among other things, denied those branches of their motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint and cross claims insofar as asserted against them or pursuant to CPLR 3211(c) to treat the motion as one for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is affirmed, with costs to the respondent.

The documentary evidence submitted by the defendants Underwriters at Lloyds (hereinafter Underwriters) and Harbin Adjustment Company, Inc. (hereinafter Harbin) (together Lloyds), failed to establish that the defendant Premiere Builders Corp. (hereinafter Premiere) had made a material misrepresentation in its August 2004 insurance application that rendered proper Lloyds's January 2007 rescission of the subject policy (see Wright v Evanston Ins. Co., 14 AD3d 505; McCormack v Port Washington Union Free School Dist., 225 AD2d 531, 532). Further, viewing the complaint and cross claims in the light most favorable to the plaintiff and the defendant Joline Estates, LLC, the cross claimant, respectively (see Leon v Martinez, 84 NY2d 83, 87-88), the complaint and cross claims adequately state a cause of action (see Lanza v Wagner, 11 NY3d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901; Law Research Serv. v Honeywell, Inc., 31 AD2d 900, 901).

To the extent that Lloyds raises issues regarding that branch of their motion which was to dismiss the complaint and cross claims insofar as asserted against them on the ground of forum non conveniens, such issues are not properly before this Court, as that branch of the motion remained pending and was not decided in the order appealed from (see Katz v Katz, 68 AD2d 536, 542-543), and was subsequently determined in an order dated May 1, 2008, from which no appeal has been taken.

Lloyds's remaining contentions are without merit.
MASTRO, J.P., FLORIO, DICKERSON and BELEN, JJ., concur.

Mirabelli v Merchants Insurance Company of New Hampshire


Feldman, Rudy, Kirby & Farquharson, P.C., Westbury, N.Y.
(Gerald F. Kirby of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract and for a judgment declaring that a loss to the plaintiffs' property is covered under an insurance policy issued by the defendant, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated June 7, 2007, which granted the defendant's motion, in effect, for summary judgment dismissing the first cause of action and on the fifth cause of action declaring that the loss to the plaintiffs' property is not covered under the insurance policy issued by the defendant, and denied their cross motion, among other things, for summary judgment on the fifth cause of action declaring that the loss to their property is covered under the subject insurance policy.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment, inter alia, declaring that the loss to the plaintiffs' property is not covered under the insurance policy issued by the defendant.

On its motion, the defendant established its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324), by demonstrating, prima facie, that a loss to the plaintiffs' property was not covered under the subject insurance policy. The defendant provided evidence establishing that the plaintiffs not only failed to comply with a policy provision requiring that the property have a particular type of fire alarm, but also failed to fulfill their obligations under the policy's cooperation clause (see 232 Broadway Corp. v New York Prop. Ins. Underwriting Assn., 206 AD2d 419, 421; Dyno-Bite, Inc. v Travelers Cos., 80 AD2d 471, 473-474). Since, in opposition, the plaintiffs failed to raise a triable issue of fact, the Supreme Court properly granted the defendant's motion (see Alvarez v Prospect Hosp., 68 NY2d at 324).

The plaintiffs' remaining contentions either have not been reviewed (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 754-757; Bray v Cox, 38 NY2d 350, 353-355), or are without merit.

Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Suffolk County, for the entry of a judgment, inter alia, declaring that the loss to the plaintiffs' property is not covered under the subject insurance policy (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 90).
RIVERA, J.P., DILLON, COVELLO and ANGIOLILLO, JJ., concur.

ENTER:

 

Kinder Morgan Energy Partners, L.P. v Ace American Insurance Company


O'Melveny & Myers LLP, New York (Paul R. Koepff of
counsel), for appellant.
Baker & McKenzie LLP, Chicago, Il (Lindsay A. Philiben, of
the Illinois Bar, admitted pro hac vice, of counsel), for
respondents.

Order, Supreme Court, New York County (Judith J. Gische, J.), entered February 5, 2008, which denied defendant's motion to the extent it sought dismissal or a stay of this declaratory judgment action on grounds of forum non conveniens, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the motion granted and the complaint dismissed on condition that defendants waive any statute of limitations defense in California.

Plaintiffs seek a declaration of rights under insurance policies issued by defendant in connection with coverage for a pipeline explosion in California. In determining whether to dismiss an action on the ground of forum non conveniens, "[a]mong the factors to be considered are the burden on the New York courts, the potential hardship to the defendant, and the unavailability of an alternative forum in which plaintiff may bring suit. The court may also consider that both parties to the action are nonresidents and that the transaction out of which the cause of action arose occurred primarily in a foreign jurisdiction" (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479 [1984, citations omitted], cert denied 469 US 1108 [1985]).

The explosion caused physical damage in California, involved the alleged negligence of plaintiffs and nonparties there, and all of the underlying actions are pending in California, the residence of plaintiff SFPP. These facts support deference to California's stronger interest (see Flintkote Co. v American Mut. Liab. Ins. Co., 103 AD2d 501 [1984], affd 67 NY2d 857 [1986]). That the subject policies were issued in New York is but one factor to be considered (see Continental Ins. Co. v AMAX Inc., 192 AD2d 391 [1993], lv denied 82 NY2d 835 [1993]).

Moreover, plaintiffs' claims are based on a contract allegedly requiring the procurement of insurance. The existence and terms of that contract are relevant to a determination of coverage, and the location of witnesses and documents concerning the contract, which was negotiated in and subject to the laws of California, is relevant.

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

Blakney v. Leathers


James G. Bilello, Westbury, N.Y. (Tammy E. Skinner of counsel),
for appellants.
Greg Garber, New York, N.Y., for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Solomon, J.), dated November 29, 2007, which granted the plaintiff's motion, in effect, to vacate a general release and a stipulation of discontinuance, and to restore the action to the active calendar.

ORDERED that the order is affirmed, with costs.

In October 2006 the plaintiff was involved in a motor vehicle accident with the defendants and sustained personal injuries. Thereafter, he retained an attorney (hereinafter the attorney) to represent him in an action against the defendants.

In March 2007 the attorney negotiated a settlement of the action with a representative of GEICO Insurance Company (hereinafter GEICO) in the amount of $35,000. He forwarded a stipulation of discontinuance and a general release to GEICO on or about March 16, 2007. The release purportedly was signed by the plaintiff and notarized by the attorney. Thereafter, a joint settlement check was forwarded by GEICO to the attorney.

The plaintiff claimed to have had no knowledge of the settlement negotiations and transactions, and asserted that he became aware of them only upon telephoning GEICO in July 2007 after attempts to contact the attorney proved unsuccessful.

The plaintiff moved to vacate the general release and the stipulation of discontinuance, and to restore the action to the active calendar, asserting that he neither authorized nor consented to the settlement, that the signature on the general release and endorsement on the settlement check were forgeries, and that he never received any of the proceeds. The Supreme Court granted the plaintiff's motion.

An attorney must be specifically authorized to settle and compromise a claim, as an attorney has no implied power by virtue of his general retainer to compromise and settle his client's claim (see Hallock v State of New York, 64 NY2d 224, 230; Nash v Y & T Distribs., 207 AD2d 779, 780). Here, the plaintiff established, and it is not disputed, that he did not expressly authorize the attorney to settle the instant action. In opposition, the defendants failed to satisfy their burden of showing that the attorney had the apparent authority to settle the case (see Nash v Y & T Distribs., 207 AD2d at 781). Accordingly, the plaintiff's motion was properly granted.

The defendants' remaining contentions are without merit.
SPOLZINO, J.P., RITTER, SANTUCCI and CARNI, JJ., concur.

Gallagher v The New York Post


Sacks and Sacks, LLP, New York (Scott N. Singer of counsel),
for Gallagher appellants-appellants.
Jones Hirsch Connors & Bull P.C., New York (Richard
Imbrogno of counsel), for The New York Post and NYP Holdings,
Inc., respondents-respondents/NYP Holdings, Inc., respondent-
appellant.
French & Rafter, LLP, New York (Howard K. Fishman of
counsel), for Francis A. Lee Co., appellant-respondent.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered August 17, 2007, which, insofar as appealed from as limited by the briefs, upon reargument, adhered to its prior order denying plaintiffs' motion for summary judgment on the issue of liability on their Labor Law § 240(1) cause of action, and vacated its determination granting so much of the cross motion of defendants The New York Post and NYP Holdings, Inc. (collectively NYP) for summary judgment dismissing plaintiffs' Labor Law § 200 claim and reinstated the claim, and which denied the motion of third-party plaintiffs NYP for summary judgment on the first cause of action in the third-party complaint for conditional contractual indemnification against third-party defendant Francis A. Lee Co. (Lee), and which denied Lee's motion to sever the third-party action and its cross motion for summary judgment dismissing the third-party complaint, and which granted NYP and Lee's motions to strike the note of issue filed by plaintiffs, modified, on the law, NYP's cross motion for summary judgment granted to the extent of dismissing plaintiffs' claim pursuant to Labor Law § 200, NYP's motion for summary judgment granted on its first cause of action in the third-party complaint for conditional contractual indemnification, and Lee's cross motion for summary judgment granted to the extent of dismissing the second cause of action in the third-party complaint for breach of the contract to procure insurance, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered January 10, 2007, dismissed, without costs, as superseded by the appeal from the subsequent order.

Initially, we find that the motion court properly denied plaintiffs' motion for summary judgment on the Labor Law § 240(1) cause of action, albeit for the reasons it initially adopted, and then rejected, on reargument. Labor Law § 240(1), commonly referred to as the Scaffold Law, provides, in pertinent part, that:

"All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

The Court of Appeals has long and repeatedly observed that the purpose of the statute is to protect workers by placing the ultimate responsibility for safety practices where such responsibility belongs, on the owners and general contractors, instead of on the individual workers who are not in a position to protect themselves (Martinez v City of New York, 93 NY2d 322, 325-326 [1999]; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520 [1985]; Koenig v Patrick Constr. Corp., 298 NY 313, 318 [1948]). Consistent with this objective, the Court of Appeals has stated that the statute is to be construed as liberally as necessary to accomplish the purpose for which it was framed (Panek v County of Albany, 99 NY2d 452, 457 [2003]; Gordon v Eastern Ry. Supply, 82 NY2d 555, 559 [1993]), but has also cautioned that not every worker who falls at a construction site, nor every object that falls on a worker, gives rise to an award of damages under Labor Law § 240(1) (Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 50 [2004]; Blake v Neighborhood Housing Servs. of N.Y., Inc., 1 NY3d 280, 288 [2003]). Accordingly, it is still necessary for a plaintiff to demonstrate that the statute was violated, and that the violation proximately caused his/her injuries (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]; Quattrocchi v F.J. Sciame Constr. Corp., 44 AD3d 377, 381 [2007], affd __ NY3d __, 2008 NY Slip Op 06736 [2008]). Thus, where a plaintiff's own actions are the sole proximate cause of the accident, liability under Labor Law § 240(1) does not attach (Robinson v East Med. Ctr. LP, 6 NY3d 550, 554 [2006]; Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d at 39). Moreover, if adequate safety devices are made available to the worker, but the worker does not use, or misuses, them, there is no liability (Robinson, 6 NY3d at 554-555; Tonaj v ABC Carpet Co., Inc., 43 AD3d 337, 338 [2007]), and "[t]he burden of showing that an elevation-related risk exists, and that the owner or contractor did not provide adequate safety devices, falls upon the plaintiff" (Broggy v Rockefeller Group, Inc., 8 NY3d 675, 681 [2007]).

In this matter, we are compelled to disagree with the dissent's conclusion that "there is simply no evidence of record that the plaintiff chose not to use an available safety device." Jonathan Schreck, plaintiff's employer's assistant project manager, testified at a deposition conducted on January 31, 2006, that: he had weekly meetings with the safety specialist hired to oversee the construction project in question; the ironworkers were required to use certain safety devices, such as lanyards, cables or harnesses, when working near open areas; the devices were used to prevent injury in case a worker fell through an opening or off an elevated surface; the safety devices were available on the job site the day plaintiff was injured; and a standing order was in place that all workers operating around any opening in the floor were to be in a harness and tied off.

In our view, the foregoing testimony, which directly contradicts that of plaintiff, his co-worker, and the project foreman, consists of more than "[m]ere generic statements of the availability of safety devices"[FN1] and is sufficient, at this juncture, to raise issues of fact as to whether plaintiff was provided with adequate safety devices, was instructed to use them, and declined to do so, rendering his actions, or lack thereof, the sole proximate cause of his injuries. We are not convinced, however, that even if plaintiff's grip was not up to full strength as a result of a prior unrelated injury, that such weakness could be considered the sole proximate cause of the accident.

The court erred in reinstating the Labor Law § 200 claim, where the evidence establishes that NYP did not exercise the requisite degree of control over plaintiff's work that would give rise to liability (see Buckley v Columbia Grammar & Preparatory, 44 AD3d 263, 272 [2007], lv denied 10 NY3d 710 [2008]). That NYP retained a project manager for day-to-day monitoring of the project does not warrant a different conclusion (see Aragon v 233 W. 21st St., 201 AD2d 353, 354 [1994]).

NYP was entitled to summary judgment on the first cause of action in the third-party complaint for conditional contractual indemnification, since any negligence giving rise to the accident, i.e., the purported failure to provide safety harnesses, arises out of the work performed by plaintiff's employer, Lee. Moreover, contrary to Lee's position, the anti-subrogation rule is only applicable to bar claims for indemnification to the extent of the limits of a common policy (see Federated Dept. Stores, Inc. v Twin City Fire Ins. Co., 28 AD3d 32, 40 [2006]). By virtue of the "other insurance" language of the umbrella policy obtained by Lee, the primary policy obtained by NYP is not a common policy, since Lee is not an insured under that policy. Thus, NYP's primary policy would attach prior to the umbrella policy, and accordingly, it is entitled to contractual indemnification for any damages awarded in excess of $1,000,000 and below $3,000,000.

The evidence further establishes that Lee did obtain the requisite insurance under its contract with NYP and thus, the second cause of action in the third-party complaint for failure to procure insurance should have been dismissed.

Inasmuch as this determination disposes of liability issues with regard to the third-party action, it does not appear that there should be any outstanding discovery. Any discovery regarding damages has presumably been shared between the parties to the third-party action, who are being provided a defense by the same carrier. Therefore, unless Lee can establish a need for further discovery, discovery should be closed, and severance of the third-party action is unnecessary.

All concur except Catterson and Moskowitz, JJ. who dissent in part in a memorandum by Catterson, J. as follows:


CATTERSON, J. (dissenting in part)

The plaintiffs' motion for summary judgment on the Labor Law § 240(1) cause of action should have been granted, since there are no triable issues regarding whether the requisite safety equipment was made available, and, if so, whether the injured the plaintiff chose not to make use of it. See Montgomery v. Federal Express Corp., 4 NY3d 805, 806, 795 N.Y.S.2d 490, 828 N.E.2d 592 (2005). It is uncontested that while the plaintiff was cutting through steel decking with a gas-powered circular cut-off saw, the saw became bound up in the decking. At that point, the moment of inertia of the saw relative to the captured saw blade caused the plaintiff to be thrown a distance of approximately 14 feet into an opening in the floor whereupon he was injured. He testified that he was not provided with any safety devices. This was corroborated by the affidavit of the plaintiff's co-worker, the testimony of the plaintiff's own foreman, and the employee sign-in sheet. The plaintiff made out a prima facie case that he was not supplied with safety devices adequate to prevent him from being propelled into an open hole [FN2]. The burden then shifts to the defendant to establish that, "there was no statutory violation and that plaintiff's own acts and omissions were the sole cause of the accident." Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289, 771 N.Y.S.2d 484, 489, 803 N.E.2d 757 n 8 (2003).

We once again must observe that this is not merely a negligence action, that the Labor Law and decisional authority impose a greater burden on the defendants, and that public policy protecting workers requires that the statutes in question be construed liberally to afford the appropriate protections to the worker.

Thus, to defeat summary judgment in this case based on violations of the Labor Law, the defendant would necessarily have to establish that the plaintiff "had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured." Cahill v Triborough Bridge + Tunnel Auth., 4 NY3d 35, 40, 790 N.Y.S.2d 74, 76, 823 N.E.2d 439, 441 (2004). The record fails to establish that there is an issue of material fact on several of the Cahill sole proximate cause factors.

Primarily, there is simply no evidence of record that the plaintiff chose not to use an available safety device. Indeed,
every witness except FAL's assistant project manager, Jonathan J. Schreck, testified that no safety devices were provided to the iron workers. At no point does Schreck specifically state that the plaintiff was told to use certain safety devices and that he declined and that he had "no good reason not to do so." Furthermore, the defendants point to no evidence of record that like the plaintiffs in Cahill and Blake, the plaintiff explicitly refused to use the available safety devices. See Quattrocchi v. F. J. Sciame Constr. Corp., 44 AD3d 377, 381-382, 843 N.Y.S.2d 564, 568 (1st Dept. 2007), aff'd _ NY3d _, 2008 N.Y. Slip Op. 06736 (2008). Indeed, Schreck testified that the plaintiff's foreman was the best person to ask about the iron workers' use of safety devices. The foreman stated that no such devices were provided to the plaintiff. Mere generic statements of the availability of safety devices are insufficient to create an issue of fact that the plaintiff was the sole proximate cause of his injury.

Footnotes


Footnote 1:Indeed, Mr. Schreck testified, in a manner indicating a good deal of familiarity with the safety devices, as to the various types of safety harnesses that were made available to the ironworkers, as well as the details of their operation, rendering his testimony somewhat more than generic statements.

Footnote 2:It is noted, as the majority points out, that even if the plaintiff's grip was not up to full strength as a result of a prior unrelated injury, such weakness could not be considered the sole proximate cause of the accident.

Canete v Judlau Contracting, Inc.


London Fischer, LLP, New York, N.Y. (Bernard London, Daniel
Zemann, Jr., and Anthony D. Capasso of counsel), for appellants.
Andrew L. Weitz & Associates, P.C. (Pollack, Pollack, Isaac &
De Cicco, New York, N.Y. [Brian J.
Isaac and Jillian Rosen], of counsel),
for respondents.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the defendants Judlau Contracting, Inc., Thomas Iovino, and Judith Iovino appeal from an order of the Supreme Court, Suffolk County (Pitts, J.), dated May 2, 2007, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

The plaintiff Hugo Canete (hereinafter the plaintiff) fell from a ladder while performing work at the home of the defendants Thomas Iovino and Judith Iovino (hereinafter together the Iovinos). The plaintiff and his wife Maria Canete, who asserted a derivative claim, commenced this action against, among others, the Iovinos and Judlau Contracting, Inc. (hereinafter Judlau), a construction company of which Thomas Iovino is the chief executive officer and from which the plaintiff received his paycheck. The Iovinos and Judlau (hereinafter collectively the appellants) moved for summary judgment dismissing the complaint insofar as asserted against them. The appellants contend that (1) the claims against the Iovinos were barred by Workers' Compensation Law § 11 because the plaintiff was employed by the Iovinos and the Iovinos maintained a workers' compensation insurance policy covering him, (2) the claims against Judlau must be dismissed because Judlau was merely the Iovinos' "pay agent" and had no involvement with the circumstances giving rise to the accident, and (3) the plaintiffs' Labor Law §§ 240(1) and 241(6) causes of action must be dismissed because the accident occurred at the Iovinos' private home while the plaintiff was working as a domestic employee.

The Supreme Court properly denied the appellants' motion. The appellants failed to demonstrate their prima facie entitlement to judgment as a matter of law regarding their contention that the Iovinos, as opposed to Judlau, was the plaintiff's employer (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). While the appellants submitted an affidavit of Thomas Iovino stating that the Iovinos personally employed the plaintiff as a caretaker of their home and merely paid him "through [Judlau] as a pay agent," the plaintiff's W-2 forms, also submitted by the appellants, list Judlau as the plaintiff's "employer." Since Judlau is a legal entity distinct from the Iovinos, the Iovinos, as landowners, would not be exempted from tort liability by the exclusivity provisions of the Workers' Compensation Law if it is determined that Judlau was the plaintiff's employer (see Masley v Herlew Realty Corp., 45 AD3d 653, 654; Richardson v Benoit's Elec., 254 AD2d 798, 799; Casas v 559 Warren St. Realty Corp., 211 AD2d 742, 743). Inasmuch as the appellants failed to submit any evidence regarding what type of work the plaintiff was performing at the time he fell from the ladder, the appellants also failed to make a prima facie showing with respect to the Labor Law §§ 240(1) and 241(6) causes of action (see Joblon v Solow, 91 NY2d 457, 465-466).
SPOLZINO, J.P., RITTER, SANTUCCI and CARNI, JJ., concur.

Board of Hudson River-Black River, etc.  v. Praetorian Ins. Co.


Calendar Date: September 10, 2008
Before: Mercure, J.P., Peters, Spain, Malone Jr. and Stein, JJ.


Crane, Parente & Cherubin, Albany (Clemente J.
Parente of counsel), for appellant.
White, Fleischner & Fino, L.L.P., New York City
(Jason Steinberg of counsel), for respondent.

MEMORANDUM AND ORDER
Peters, J.

Appeal from an order of the Supreme Court (Devine, J.), entered July 10, 2007 in Albany County, which, among other things, granted defendant's motion for summary judgment dismissing the complaint.

On July 24, 2005, Christina Chera sustained injuries on property allegedly controlled and maintained by plaintiff. On October 19, 2005, plaintiff received a notice of claim for personal injuries and damages relating to the incident, but failed to forward it to defendant, its liability insurer, or otherwise notify defendant of the occurrence. One year later, plaintiff was served with a summons and complaint in the underlying personal injury action. Plaintiff thereafter forwarded the summons and complaint to its insurance broker, who promptly forwarded them to defendant. Defendant disclaimed coverage based upon plaintiff's failure to notify it of the occurrence "as soon as practicable" and to "[i]mmediately" send it a copy of the notice of claim, as required by the insurance policy. Plaintiff then commenced this declaratory judgment action seeking to compel defendant to defend and indemnify it in the underlying action. After joinder of issue, both parties moved for summary judgment. Finding that plaintiff failed to give timely notice as a matter of law, Supreme Court granted summary judgment in favor of defendant. Plaintiff appeals and we affirm.

"'Where a policy of liability insurance requires that notice of an occurrence be given "as soon as practicable," such notice must be accorded the carrier within a reasonable period of time'" (Klersy Bldg. Corp. v Harleysville Worcester Ins. Co., 36 AD3d 1117, 1118 [2007], quoting Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]). Such a notice provision is a condition precedent to coverage and, absent a valid excuse, the failure to satisfy the notice requirement vitiates the contract of insurance (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d at 743; Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 440 [1972]). Moreover, the insurer need not demonstrate actual prejudice from the delay in order to successfully disclaim coverage (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d at 743; Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339 [2005]).

Plaintiff concedes that there is no evidence that it furnished notice of the occurrence to defendant prior to October 2006, a full year after it received the notice of claim. Plaintiff's only excuse for the delay is that its then-general counsel "should have" forwarded the notice of claim to defendant when it was received and that it "assumed" that notice had been so provided. Although "[t]here may be circumstances, such as lack of knowledge that an accident has occurred or a reasonable belief in nonliability, that will excuse or explain delay in giving notice" (White v City of New York, 81 NY2d 955, 957 [1993]; see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d at 441), mere neglect or inadvertence on the part of plaintiff's employee is not a valid excuse (see e.g. Todd v Bankers Life & Cas. Co., 135 AD2d 1066, 1068 [1987]; Tennant v Farm Bur. Mut. Auto. Ins. Co., 286 App Div 117, 120-121 [1955]). Thus, in the absence of a reasonable excuse, plaintiff's one-year delay in notifying defendant of the occurrence was unreasonable as a matter of law (see Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d at 339-340; Centenniel Ins. Co. v Hoffman, 265 AD2d 629, 630 [1999]).[FN1]

Finally, even had plaintiff provided notice to its broker prior to October 2006, notice to an insurance broker does not constitute notice to the liability carrier (see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d at 442 n 3; Kamyr, Inc. v St. Paul Surplus Lines Ins. Co., 152 AD2d 62, 65 [1989]) and, unlike the circumstances in Jeffrey v Allcity Ins. Co. (26 AD3d 355 [2006]), the notification provisions of the instant policy are not ambiguous as to who must be notified in the event of an occurrence.

Mercure, J.P., Spain, Malone Jr. and Stein, JJ., concur. 

ORDERED that the order is affirmed, with costs.

Footnotes


Footnote 1:We further note that, "even if a question of fact existed as to whether [plaintiff] complied with its obligation to give notice of a suit 'as soon as practicable,' the failure to comply with the obligation to 'immediately send [defendant] copies of any legal papers received,' for which no valid reason was given, independently absolved [defendant] of its coverage obligations" (Steadfast Ins. Co. v Sentinel Real Estate Corp., 283 AD2d 44, 54 [2001], quoting Viles Contr. Corp. v Hartford Fire Ins. Co., 271 AD2d 349, 349 [2000]).

 

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