Coverage Pointers - Volume X, No. 12

Dear Coverage Pointers Subscribers:

 

We hope you are gearing up for a wonderful holiday season.  It was great meeting some of you at the DRI Insurance program in NYC.  The DRI's spring coverage program, the Insurance Coverage and Claims Institute, will be held in Chicago between April 1 and April 3, 2009.  The DRI website, www.dri.org, will have registration information shortly.

 

For claims training, nothing tops the FDCC's 15th Annual Litigation Management College and 6th Annual LMC Graduate Program, being held at Emory University in Atlanta on June 14-18, 2009.  Registration is available on the website, www.thefederation.org. 

 

We're not done for the year, of course, with another 2008 edition scheduled in two weeks.  Don't think for a moment, of course, that you will be celebrating Christmas or Chanukah without your issue of Coverage Pointers in two weeks.  Earl Cantwell, playing Johnny Carson's Karnak the Magnificent last week at our firm's holiday party, held the envelope to his head and told the audience that the answer was Christmas Eve.  When he opened the envelope, he read the question: "What is just another Coverage Pointers deadline?"

 

OK, so we have Audrey's Angles, Margo's Musings, Peiper on Property and Potpourri and Earl's Pearls as well as the continuing special series on lead paint claims, Duquin, the Duke of Lead. I've been asked by more than one person why MY column doesn't have a name?  A fair question.  So I've been considering it.  Kohane's Coverage Capsules?  Dan's Declarations? Delusional Dan's Daydreaming Ditties?   Not sure yet, but would appreciate any recommendations.

 

Speaking of Training

 

I'm in the lovely City of Columbus, Ohio tonight, where we have been invited to do some end-of-the-year coverage training for an insurer in town.  We're looking forward to it.  The subject of this program is Complex Liability Insurance Issues, An Approach to Simplifying the Complex.  As you plan the 2009 training for your professional staff, remember that we can custom design a program for you.  Providing education is what we do and we do not charge for this training.

 

Some topics of interest are suggested here, but we can craft the presentation around whatever needs you may have.  For example, in the last 30 days, Audrey has been on the No Fault training circuit and I've been present on late notice issues, particularly in light of the legislation passed in NY this year and today's offering on simplifying complex coverage questions.  Here are a few topics to consider, offered alphabetically:

 

1.      Auto Liability Policy Primer

2.      CGL Policy Primer

3.      Complex Liability Insurance Issues, An Approach to Simplifying the Complex.

4.      Cooperation Clause - What Does Non-Cooperation Really Mean?

5.      Disclaimer Letters - Nuts & Bolts: How to Create and Write and Send a Disclaimer Letter, and How Not To. (The Reservation of Right Letter Myth)

6.      EUO's Under First Party Policies

7.      Homeowners Liability Policy Primer

8.      How to Resolve Coverage Disputes:  DJ Actions, Insurance Law Section 3420 Direct Actions (Choice, Strategy and Timing)

9.      Late Notice - In Tune, In Touch, In Time, New Rules, New Responsibilities

10.  No Fault Regs - Knowledge is Power

11.  No- Fault Arbitrations and Appeals: Mock Arbitrations, Preserving the Record, Taking an Appeal 

12.  Preventing Bad Faith Claims - First Party Cases

13.  Preventing Bad Faith Claims - Liability Cases

14.  Primary and Excess Insurance - Rights & Responsibilities

15.  Strategic Approaches to Handling Coverage Questions and Disputes

16.  SUM Claims Handling

17.  The "Serious Injury" Threshold; Early Dismissal with Properly Crafted Motions

18.  Using Your Coverage Counsel Wisely

 

One Hundred Years Ago Today

            This week, it was reported that a State Supreme Court judge refused to dismiss charges, including breach of fiduciary duty, against former American International Group, Inc. chairman Maurice R. Greenberg and others in a battle with AIG for control over shares of the insurer. 

            Mr. Greenberg is not the only insurance executive who has faced close judicial scrutiny.  In fact, 100 years ago today, a court dismissed charges against another high-profile insurance executive.  The headlines screamed:

HEGEMAN IS FREED BY SUPREME COURT
Release of Insurance Official Will Quash Other Indictments Now Standing

NEW YORK, - John R. Hegeman, President of the Metropolitan Life Insurance company, was freed by the Supreme Court today in a decision that, if it stands, will serve to quash all indictments now outstanding against insurance officials.

 

This is according to a statement by the district attorney, who, however, expects to take the case to the Court of Appeals.

 

Mr. Hegeman was charged with perjury in the verification of a report made by the Metropolitan Life Insurance Company to the Superintendent of Insurance in January.  The matter reached the Appellate Division of the Supreme Court through habeas corpus proceedings.

Editor's Note:  Hegeman had been charged with falsifying documents for the purpose of making the Annual Report to the Superintendent more "plausible," it was alleged. 

 

During the time Hegeman was president of Metropolitan Life Insurance Company, its assets rose from $11 million to $200 million.  He is also responsible for commissioning the Metropolitan Life Insurance Building which still stands on 23^rd  Street and Madison Avenue in NY. http://www.nyc-architecture.com/GRP/GRP019.htm.  Hegeman died in 1919 leaving an estate with over $3.3 million but, like the shoeless shoemaker's son, only $20,000 in life insurance. 

 

Audrey's Angles

 

Audrey has been busy as all get-out these last few weeks (months?) but never busy enough to forget our readership.  Here are here comments for this issue:

 

The Courts are remaining busy during this holiday season.  We have a few interesting decisions, one of which is a case providing an interpretation of CPLR 5003-a pertaining to settlements and when a plaintiff can file a judgment against the defendant for failure to timely pay.  There is another case where an insurer prevailed on the defense of failure to comply with two scheduled IMEs.  Finally, there is an interesting and well reasoned arbitration award from Arbitrator O'Connor.  This case was on remand from a Master Arbitrator on the issue of whether the EIP failed to appear for scheduled IMEs.  This is our last edition before the Christmas holiday and I hope that if you are celebrating you have a Merry Christmas.

 

Audrey 

 

Audrey A. Seeley
[email protected]

 

One Hundred Years Ago Today:  Former New York State Court of Appeals Chief Judge Charles Breitel was born.  Elected to the Court of Appeals in 1967 and then elected Chief Judge in 1973, he died in 1991.  Two of his most famous insurance coverage decisions included Graphic Arts v. Bakers Mutual Ins. Co, 45 NY2d 551 (1978)  and Sturges Mfg. Co. v. Utica Mut. Ins. Co., 37 N.Y.2d 69 (1975). 

 

The Graphic Arts decision held that a claim by a third party against an employer for contribution for an employee injury was different than a claim by the employee directly and was covered by the CGL policy, despite an employer's liability exclusion.  That decision led (through INA v. Dayton Tool) to what was known for a time as the New York Amendatory Endorsement which amended the that exclusion to include claims for case was the precursor to what first became the New York Amendatory Endorsement and eventually became part of Exclusion (e)(2) of the ISO CGL Policy which provides that the employers liability exclusion applies to "any obligation to share damages with or repay someone else who must pay damages because of the injury.          

 

The Sturges case, still cited today, addressed pre-1982 CGL policies and held that the mere incorporation of a defective product manufactured by an insured into a larger product could constitute "property damage" under the "own product" exclusion.

 

Earl's Pearls

 

The defense argues that the plaintiff should undergo surgery and if he or she does, the disability would be mitigated. The plaintiff refuses.  Does the defendant have any recourse?  Read Earl Cantwell's column, this week, to see his review of a recent case on the very compelling subject: Surgery or Other Medical Procedures in Mitigation of Damages.

 

The Duke of Lead

In the second part of a continuing series, Scott Duquin writes about notice requirement in lead paint cases.

 

This Week's Issue

I send special kudos to Margo Lagueras who reviewed 18 "serious injury" threshold cases for this issue.  Need anyone to make a motion for you?

 

This week's issue includes the following decisions of interest:

Dan's Unnamed Column

• Court "Suggests" that Prejudice Necessary when Denial of Coverage is Based on Late Notice of Lawsuit
• BP Air Conditioning Rides Again - Additional Insured Rights Established from Pleadings and Confirmed by the Proof
• Twenty Days - No More - to Seek Stay Uninsured Motorists Arbitration
• Relying on Outdated Statute Doesn't Impress Court
• For Uninsured Motorist Benefits, Hit-and-Run Requires Contact
• Unexcused Delay in Denying Coverage Dooms Disclaimer Based on Late Notice and Exclusion
• Punitive Damage and Emotional Distress Claims Dismissed Against Carrier on Motion
• Exclusivity of Workers Compensation Law Bars Action Against Special Employer 

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

Margo M. Lagueras

[email protected]
 

• Unsworn Reports May Be Considered to Deny Motion for Summary Judgment
• Objective Range-of-Motion Assessment Five Years After Accident Is Too Remote to Permit Inference that Limitations were Caused by Accident
• Three Week Absence from School and Inability to Participate in Gym Class for "Some Time" Does Not Meet 90/180-Day Requirement
• Evidence of Pre-existing Injury Requires Proof by Plaintiff Establishing Causation
• Sufficiency of Opposing Papers Not Considered Where Prima Facie Showing Not Made
• Order Is Res Judicata Where Plaintiff Fails to Timely Renew Motion to Vacate
• Failure to Submit Competent Medical Evidence Dooms Plaintiffs' Case
• Cross Motion on Issue of Liability Remitted for Determination on the Merits Where Defendants Fail on Showing of No Serious Injury
• Herniated and Bulging Discs Do Not, Per Se, Establish a Serious Injury
• Conclusory Assertions Tailored to Meet Statutory Requirements Are Insufficient to Raise a Triable Issue of Fact Concerning Serious Injury Absent Contemporaneous Evidence
• Submissions Addressing Condition Three Months After Accident Do Not Rebut Examination Nine Months after Accident Showing Injuries Resolved
• Failure to Reconcile Contradictory Medical Report and Affirmation Renders Affirmation Insufficient to Raise Triable Issue of Fact
• 19-Month Gap in Treatment Is Explained by Professional Courtesy and Home Exercises
• Affidavit Based on Examination 3 to 4 Years Before Motion for Summary Judgment Fails to Raise Triable Issue of Fact
• Emotional Injury Can Constitute a Serious Injury but Not if Medical Records Establish Prior Depressive Condition 

AUDREY'S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

 

Arbitration

• Applicant's Failure to Attend IME Was Not Unreasonable in Light of Lack of License or Funds to Pay for Transportation

Litigation

• Vacation of Default Judgment Denied for Failure to Establish a Meritorious Defense
• Plaintiff's Notice to Admit Does Not Establish Its Prima Facie Case at Trial
• Plaintiff's Failure to Object to Alleged Defects in 90 Day Demand and Failure to Act on Demand Results in Dismissal of Complaint
• Summary Judgment Granted for Insurer as Plaintiff Failed to Submit Evidence to Rebut Insurer's Prima Facie Case
• Insurer Prevails on Defense of Failure to Appear for Scheduled IMEs
• Plaintiff Not Entitled to Enter Judgment for Failure to Pay Settlement Due to Noncompliance with CPLR
• Carrier's Assertion of Comp Lien in Settlement with Non-Covered Person Permitted
• Issue of Fact Regarding Whether Verification was Outstanding
• Insurer's Cross-Motion Denied as Failed to Establish Did Not Insure Vehicle 

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper

[email protected]

 

Of Property (or first party)

• Interest on a Life Insurance Policy is Governed by Insurance Law § 3214
• Relation Back Doctrine of No Use to Plaintiff were Proposed Defendant had No Notice of the Accident
• The Good, The Bad, and the Creative - Plaintiff is not a Third-Party Beneficiary to a Surety Bond to Cover Tortfeasor's Claims Expenses
•  "Leased vehicles" are not "Rental Vehicles" under V&T Law § 370(3) 

Thanks for all your great feedback.

 

Dan

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

Newsletter Editor

Dan D. Kohane
[email protected]

 

Insurance Coverage Team

Dan D. Kohane, Team Leader
[email protected]

Michael F. Perley
Audrey A. Seeley
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

Duquin -- The Duke of Lead

 

12/9/08            American Transit Insurance Company v. Rechev of Brooklyn, Inc.

Appellate Division, First Department

Court “Suggests” that Prejudice Necessary when Denial of Coverage is Based on Late Notice of Lawsuit
The First Department denied coverage to an insured who timely provided notice of an accident but did not follow up with timely notice of the lawsuit commenced.  This case involved a liability policy.  Holding that “[p]laintiff having thus lost its right to appear and interpose an answer, its disclaimer of coverage was proper (see Insurance Law § 3420(a)(3),” and cited to a SUM case, where prejudice is required under the Court of Appeals decision in Reckemeyer.  The suggestion that prejudice is required, of course, does not comport with NY decisional law. 

 

A concurring judge wanted the majority to fess up and state categorically that the judges were requiring prejudice.

 

12/4/08            IBEX Construction, LLC v. Utica National Assurance Company
Appellate Division, First Department

BP Air Conditioning Rides Again – Additional Insured Rights Established from Pleadings and Confirmed by the Proof
The allegations in the personal injury complaint, and the proof in the subsequent trial made it clear that the additional insured general contractor’s liability arose out of the ongoing operations of the named insured subcontractor.  Thus, the duty to defend was triggered by the underlying allegations (BP Air Conditioning8 NY3d 798) and the obligation to indemnity was established by the proof).

 

12/2/08            In the Matter of Nova Casualty Company v. Martin

Appellate Division, Second Department

Twenty Days – No More – to Seek Stay Uninsured Motorists Arbitration
The failure to move to stay arbitration within 20 days after the demand for Uninsured Motorists benefits was file is fatal to the application.  Accordingly, the argument that the other car was insured cannot be raised. 

 

12/2/08            In re Allstate Insurance Company v. Harris

Appellate Division, First Department
Relying on Outdated Statute Doesn’t Impress Court

Allstate brought a petition to permanently stay Uninsured Motorist arbitration, claiming that National Grange did not properly cancel defendant’s policy.  On appeal, for first time, National Grange argued that statute did not require that notification be given to Department of Motor Vehicles of cancellation.  Two problems led to that contention being rejected.  First, and least important, was that the legal argument had not been made before so it couldn’t be considered on appeal.  Secondly, that statute relied up by National Grange had been repealed some years ago and thus was inapplicable to policy it had canceled. 
Editor’s Note: Oops.

 

12/2/08            In re The Hanover Insurance Company v. Lewis

Appellate Division, First Department
For Uninsured Motorist Benefits, Hit-and-Run Requires Contact
As a result of a framed issue hearing, court found that there had been no contact between alleged hit-and-run vehicle and claimant for Uninsured Motorist benefits.  Without such contact, claimant is not entitled to UM benefits for his injuries.  Appellate court had no reason to disturb findings of framed issue judge, who had to consider issues of credibility.

 

11/25/08          Quest Builders Group, Inc., v. Deco Interior Construction, Inc.
Appellate Division, Second Department
Unexcused Delay in Denying Coverage Dooms Disclaimer Based on Late Notice and Exclusion
Quest Builders Group, Inc. (Quest) claimed additional insured status under a policy issued by Burlington to the Deco. Burlington denied coverage on the ground that the notice of claim was untimely, and based on a policy exclusion for injuries to employees of Deco as the plaintiff in the underlying action was an employee of Deco.)

Quest demonstrated that Burlington's delay in issuing a disclaimer of coverage was unreasonable as a matter of law, and that, consequently, Burlington was precluded from disclaiming coverage based on a late notice of claim or a policy exclusion.  Burlington failed to raise a triable issue of fact as to whether the delay was reasonably related to the completion of a necessary, thorough, and diligent investigation, or whether there was any other satisfactory explanation for the delay.
Editor’s Note:  How many times have we learned THAT lesson learned under Insurance Law Section 3420(d).

11/25/08          Tartaro v. Allstate Indemnity Company

Appellate Division, Second Department

Punitive Damage and Emotional Distress Claims Dismissed Against Carrier on Motion

Punitive damages are only recoverable where the breach of contract also involves a fraud evincing a high degree of moral turpitude, and demonstrating such wanton dishonesty as to imply a criminal indifference to civil obligations, and where the conduct was aimed at the public.  Accordingly, claim against insurer seeking those damages are dismissed.  As well dismissed are claims for intentional and negligent infliction of emotional distress.  To establish liability for the intentional infliction of emotional distress, the plaintiffs were required to show that the defendant's conduct was "so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency" and no such claim was alleged.

 

11/25/08          Balamos v. Elmhurst Realty Co. I, LLC
Appellate Division, Second Department

Exclusivity of Workers Compensation Law Bars Action Against Special Employer

An injured person who elects to receive Workers' Compensation benefits from his or her general employer is barred from maintaining a personal injury action against his or her special employer Facts to consider in determining whether a special employment situation exists includes who controls and directs the manner, details and results of employees work, who is responsible for wages, who furnishes equipment, who has the right to hire and fire, etc.

 

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

Margo M. Lagueras

[email protected]

 

12/11/08          Rivera v. Super Star Leasing, Inc.

Appellate Division, First Department

Unsworn Reports May Be Considered to Deny Motion for Summary Judgment

On appeal, the denial of the defendants’ motion is affirmed even though the defendants offered affirmed reports to show the plaintiff did not sustain a serious injury under the “permanent consequential limitation of use of a body organ or member.”  The plaintiff’s expert, who performed a recent examination of the plaintiff, opined the symptoms were caused by the accident, provided quantitative and qualitative range-of-motion limitations, and concluded that the plaintiff sustained a permanent consequential limitation of use of the cervical and lumbar spine and right shoulder.  Even though some unsworn reports were incorporated into the expert’s report, they were not the only evidence submitted and they may be considered in opposition to a motion for summary judgment.  In addition, the defendants’ expert did not examine the plaintiff until two years after the accident.  As such, the defendants could not offer any conclusions concerning the plaintiffs claim under the 90/180 day category.

 

 

12/09/08          Danvers v. New York City Transit Authority

Appellate Division, First Department

Objective Range-of-Motion Assessment Five Years After Accident Is Too Remote to Permit Inference That Limitations Were Caused by Accident

The denial of the defendants’ motion for judgment as a matter of law was reversed and the complaint dismissed.  The objective assessment of the plaintiff’s range-of-motion limitations made five years after the accident was too remote to permit an inference that those limitations were caused by the accident.  In addition, although the plaintiff has arthroscopic surgery to her ankle to repair a partially torn ligament eight months after the accident, and a history of pain, do not per se establish a serious injury, particularly where the objective evidence of range-of-motion limitations is remote from the time of the accident.  Any showing of serious injury was also negated by the plaintiff’s almost three year unexplained gap in treatment.

 

12/09/08          Ayala v. Douglas

Appellate Division, First Department

Three Week Absence From School and Inability to Participate in Gym Class For “Some Time” Does Not Meet 90/180-Day Requirement

At trial, the defendant’s motion for summary judgment was denied and the plaintiff’s on the issue of liability was granted.  On appeal, the Order was modified to the extent of granting summary judgment to the defendant dismissing the plaintiff’s 90/180-day claim. 

 

The infant plaintiff testified and submitted an affidavit stating that he was hit while crossing the street.  The defendant’s opposition on the issue of liability failed as he only submitted an affirmation of his attorney who had no personal knowledge of the facts.  However, the plaintiff failed to show that a “medically determined” injury or impairment prevented him from engaging in his normal activities for at least 90 of the first 180 days after the accident because his only evidence was his own testimony that he missed three weeks of school and was unable to participate in gym class or other sports for “some time.”  This was insufficient to meet the requirements of the 90/180-day category of serious injury.

 

12/04/08          Sky v. Tabs

Appellate Division, First Department

Evidence of Pre-existing Injury Requires Proof by Plaintiff Establishing Causation

The denial of the defendants’ motion for summary judgment is unanimously reversed, on the law.  The plaintiff failed to address how her “current medical problems, in light of her past medical history, are causally related to the subject accident”, particularly as her experts failed to discuss her prior neck and back injuries.  The defendants submitted the plaintiff’s own deposition testimony in which she testified that, in the six years prior to the subject accident, she sustained neck and back injuries in two motor vehicle accidents and a slip-and-fall, and that only three weeks before the accident she received chiropractic treatment for the neck and back injuries.  The defendants also submitted an MRI report which compared a current MRI with one taken approximately a year prior to the subject accident.  The radiologist concluded there was “no significant interval change” in the plaintiffs’ spine between the two films.  Summary judgment should have been granted to the defendants.

 

12/02/08          Rose v. City of New Rochelle

Appellate Division, Second Department

Sufficiency of Opposing Papers Not Considered Where Prima Facie Showing Not Made

Where the defendants’ proof does not eliminate all issues of fact and thus fails to make a prima facie showing that the plaintiff did not sustain a serious injury, there is no need for the court to consider the sufficiency of the plaintiff’s papers opposing the motion for summary judgment.

 

12/02/08          Sainval v. City of New York

Appellate Division, Second Department

Order Is Res Judicata Where Plaintiff Fails to Timely Renew Motion to Vacate

The plaintiff hit a large pothole and sued alleging he sustained injuries.  On the defendant, Brooklyn Union Gas Co.’s motion for summary judgment, the Brooklyn Supreme Court marked the motion off the calendar due to the failure of both the moving defendant and the plaintiff to appear on the motion return date.  The Court also granted defendant, DiFazio & Sons Construction Co.’s motion for summary judgment that the plaintiff did not sustain a serious injury, based on the plaintiff’s default in submitting opposition.  The Court additionally searched the record and dismissed the complaint and cross claims as to all the remaining co-defendants as the plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102.

 

The plaintiff timely moved to vacate in July 2003 but the motion was denied until December 2003 because DiFazio’s insurance carrier was in liquidation.  The plaintiff then failed to renew its motion to vacate until four years later, when new counsel moved, and the Court granted, its motion to restore the action to active status.  On appeal, the Second Department reversed determining that the Order which granted summary judgment to DiFazio upon the plaintiff’s default and dismissing the complaint and all cross claims against the remaining co-defendants, was res judicata on the issue of serious injury.  To restore the matter would improperly allow the plaintiff the opportunity to relitigate the previously decided issue of serious injury.

 

12/02/08          Castrillon v. Oulabed

Appellate Division, Second Department

Failure to Submit Competent Medical Evidence Dooms Plaintiffs’ Case

The plaintiffs’ appealed, and lost, the court’s grant of summary judgment to the defendants.  The plaintiffs’ submissions either did not constitute competent medical evidence or otherwise failed to establish serious injury under any of the statutory definitions and thus failed to raise a triable issue of fact in opposition to the defendants’ prima facie showing that the plaintiff did not sustain a serious injury.

 

12/02/08          Busljeta v. Plandome Leasing, Inc.

Appellate Division, Second Department

Cross Motion on Issue of Liability Remitted for Determination on the Merits Where Defendants Fail on Showing of No Serious Injury

The trial court granted the defendants’ motion for summary judgment and, as a result, denied the plaintiffs’ cross motion on the issue of liability.  On appeal, the order was reversed, finding that the defendants failed to meet their prima facie burden as their neurologist failed to substantiate with objective medical evidence that the plaintiff’s restrictions in cervical motion were self-imposed.  Therefore, regardless of the sufficiency of the plaintiffs’ opposing papers, the defendants’ motion should have been denied, a result that requires that the matter be remitted for a determination on the merits as to the issue of liability.

 

11/25/08          Innocent v. Mensah

Appellate Division, First Department

Herniated and Bulging Discs Do Not, Per Se, Establish a Serious Injury

Here, on appeal the defendants are granted summary judgment.  The plaintiff submitted MRIs performed some two months after the accident in support of his allegations of continuing pain.  Although the MRIs showed the existence of herniated and bulging discs, the plaintiff did not seek treatment for any disabling condition, only missed a few days from work, and only underwent a limited period of physical therapy and acupuncture treatment, but he did not offer any competent medical proof that he could not perform his daily tasks.  In addition, the radiologist interpreting the MRIs did not relate the injuries to the accident and the report of the examination done more than three years after the accident did not explain why plaintiff’s examining expert believed the injuries were the result of the accident.  As such, the plaintiff failed to raise a triable issue of fact.

 

11/25/08          Migliaccio v. Miruku

Appellate Division, First Department

Conclusory Assertions Tailored to Meet Statutory Requirements Are Insufficient to Raise a Triable Issue of Fact Concerning Serious Injury Absent Contemporaneous Evidence

The plaintiff alleged that a car driven by the defendant backed into her in a crosswalk.  She testified that she initially missed one week of work, two additional weeks during the course of the year, and that she stopped going for treatment some eight months later because it was not helping with the pain.  She submitted numerous expert reports but all but one were either unsworn or unaffirmed and, as such, did not “meet the test of competent, admissible medical evidence sufficient to defeat a motion for summary judgment.”  The only admissible report was made almost four years after the accident and only stated, in conclusory manner, that the noted conditions were related to the accident, but without addressing the findings of the defendant’s experts, which were supported by MRIs, that the plaintiff’s conditions were degenerative in nature.  Such conclusory assertions tailored to meet statutory requirements are insufficient absent admissible contemporaneous evidence of serious injury.

 

11/25/08          Dilone v. Tak Leu Cheng

Appellate Division, First Department

Submissions Addressing Condition Three Months After Accident Do Not Rebut Examination Nine Months After Accident Showing Injuries Resolved

The Defendants’ summary judgment is affirmed where they established, based on objective testing performed nine months after the accident, that the plaintiff’s injuries had resolved by that date.  The plaintiff failed to rebut the defendant’s prima facie case as her submissions only addressed her condition three months after the accident, and did not adequately establish a causal relationship, nor did she adequately explain her 14-month gap in treatment.

 

 

11/25/08          Carrillo v. DiPaola

Appellate Division, Second Department

Failure to Reconcile Contradictory Medical Report and Affirmation Renders Affirmation Insufficient to Raise Triable Issue of Fact

On appeal, the award of summary judgment is affirmed and the plaintiffs, relying mainly on the affirmations of their treating physician, fail to raise a triable issue of fact.  The doctor’s affirmation concerning Julia Carrillo was not based on a recent examination.  His affirmation concerning Edwin Carrillo stated that he had range-of-motion limitations in 2007.  However, the doctor’s affirmed report of May 2006 stated that Edwin had full range-of-motion as of that date in his cervical, thoracic and lumbar spines.  The doctor’s failure to reconcile the findings rendered his affirmation insufficient to raise a triable issue of fact. 

 

11/25/08          Domanas v. Delgado Travel Agency, Inc.

Appellate Division, Second Department

19-Month Gap in Treatment Is Explained by Professional Courtesy and Home Exercises

Here, the plaintiff, a physical therapist, was rear-ended, treated for approximately three months, and then apparently ceased treatment for 19 months.  He sufficiently explained the gap in treatment, however, by testifying that, because his no-fault benefits were cut off, he could no longer afford to pay for treatment, but that, as a professional courtesy, his colleagues continued to perform physical therapy on him and he continued to do home therapy exercises on his own. 

 

11/25/08          Johnson v. Berger

Appellate Division, Second Department

Affidavit Based on Examination 3 to 4 Years Before Motion For Summary Judgment Fails to Raise Triable Issue of Fact

The denial of the defendants’ motion for summary judgment is reversed and the complaint is dismissed where the plaintiff’s treating chiropractor’s affidavit was based on an examination performed 3 to 4 years before the motion for summary judgment was brought and failed to address both the defendants’ expert’s report that the plaintiff’s bulging discs were due to degenerative conditions, and the plaintiff’s own testimony wherein he admitted to sustaining 2 or 3 work-related injuries, including injuries to his back and left knee. 

 

11/25/08          Villeda v. Cassas

Appellate Division, Second Department

Emotional Injury Can Constitute a Serious Injury But Not if Medical Records Establish Prior Depressive Condition

The plaintiff alleged physical and psychological injuries as a result of a motor vehicle accident in 2003.  While “a causally-related emotional injury, alone or in combination with a physical injury, can constitute a serious injury”, here the Court determined that was not the case.  Based on the information in the plaintiff’s treating physician’s medical records, the defendants’ neurological expert found that the plaintiff’s depressive condition had existed continually since 2000 and was unrelated to the accident.  In opposition, the plaintiff’s treating neurologist’s diagnosis, relying in part on an unsworn EEG report, was based only on the plaintiff’s subjective complaints as all the admissible objective test results were wither normal or inconclusive.

 

AUDREY’S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

 

Arbitration

12/4/08            In the Matter of the Arbitration Between Applicant and Respondent

Arbitrator Veronica K. O’Connor (Erie County)

Applicant’s Failure to Attend IME Was Not Unreasonable in Light of Lack of License or Funds to Pay for Transportation

This arbitration was on remand from a Master Arbitrator who vacated the lower arbitrator’s award in favor of the insurer on whether the Applicant, eligible injured person, failed to comply with an independent medical examination (“IME”) request in violation of a policy condition.

 

The assigned arbitrator on remand found that the insurer’s denial was not appropriate.  The Applicant was scheduled to appear for an IME in Orchard Park, NY in February 2006.  The Applicant’s attorney contacted the insurer advising that the Applicant could not attend the appointment because of the lack of transportation.  The Applicant advised that her home was quite a distance from Orchard Park and that there was no public transportation available to her.  The insurer rescheduled the examination, in Orchard Park, in March and April 2006 and the insurer agreed to reimburse the Applicant for taxi fare to the appointment.  The Applicant’s attorney paid $138.00 in taxi fare of which only $79.87 was paid by the insurer due to the charges exceeding the established rated by the NY City Taxi and Limousine Commission.

 

In August 2006, the insurer scheduled the Applicant for a re-examination in Orchard Park which prompted the Applicant’s counsel to request the insurer to arrange for transportation or schedule the examination with a physician that was located closer to Applicant’s residence.  The insurer refused the requests.  The Applicant did not possess a driver’s license and could not find a taxi company that would accept the insurer’s rates for reimbursement.  The Applicant did not attend the examination and the insurer denied her no-fault benefits based upon her failurere to appear for two scheduled examinations.

 

The assigned arbitrator reasoned that the insurer’s demand to have the IME conducted in Orchard Park was unreasonable after it was aware that the Applicant did not possess a driver’s license; have no access to public transportation; and had no funds to pay for a taxi.  It was further noted that the Applicant lived in the City of Buffalo and there was ample public transportation for her to use if the insurer had scheduled the IME in Buffalo.

 

Here’s the Angle:       The insurer has the right to have the EIP undergo independent medical examinations, but the EIP also has the right to have them conducted at a time and place reasonably convenient to the EIP.  This is a case where common sense should prevail.  If the EIP does not have a license; has no ability to get a family member or friend to drive her; has no access to public transportation; and has no monetary means of paying for the transportation then perhaps it would be reasonable to schedule the EIP for an examination closer to her home. 

 

Litigation

12/5/08            State Farm Auto. Ins. Co. a/s/o Karen Listopad  v. A&G Luxury Limo, Inc.

Appellate Term, Second Department

Vacation of Default Judgment Denied for Failure to Establish a Meritorious Defense

In order to vacate a default judgment the moving party must proffer a reasonable excuse and establish a meritorious defense.  The respondent established the first prong of the test but failed to establish the second.  While the respondent contended that his defense was premised upon being unaware that his employer’s insurance policy was cancelled, he failed to establish that he was not responsible for the underlying accident.  Therefore, the default judgment should not have been vacated.

 

12/4/08            Psychmetrics Med., P.C. a/a/o Rafael Deleon v. Travelers Ins. Co.

Appellate Term, Second Department

Plaintiff’s Notice to Admit Does Not Establish Its Prima Facie Case at Trial

At trial, plaintiff’s notice to admit to the insurer which attached insurance claim forms and the insurer’s response to the notice to admit were all admitted into evidence.  The plaintiff did not call a single witness to testify.  The insurer did not call a single witness to testify but argued that plaintiff failed to establish its prima facie case.  The trial court agreed with the insurer entered a judgment dismissing plaintiff’s complaint.

 

On appeal, the trial court judgment was upheld.  The appellate term reasoned that a matter deemed admitted is still subject to all objections of admissibility which may be interposed at trial.  The court, citing, Bajaj v. General Assur., 18 Misc3d 25 (2007), held that if a party seeks to satisfy it burden of proof at trial through admission of a document then testimony is required to establish the document’s admissibility.  The party cannot merely rely upon its opponent’s response in the notice to admit to establish that a document is a business record.

 

12/3/08            A.M. Med., P.C. a/a/o Arkadiy Yusufov v. State Farm Mut. Ins. Co. Appellate Term, Second Department

Plaintiff’s Failure to Object to Alleged Defects in 90 Day Demand and Failure to Act on Demand Results in Dismissal of Complaint

The insurer served the plaintiff with a 90 day demand to file the note of issue and statement of readiness for trial.  The plaintiff did nothing with the demand and the insurer moved to dismiss.  The plaintiff opposed the motion by claiming the demand was defective and a nullity as it failed to contain a caption enumerating the name of the court, the venue, and the index number.  The court held that plaintiff waived this objection as it failed to assert it upon receipt of the demand by returning same to the insurer stating the nature of the defect.

 

12/3/08            Delta Diagnostic Radiology, P.C. v. Progressive Cas.  Ins. Co.

Appellate Term, Second Department

Summary Judgment Granted for Insurer as Plaintiff Failed to Submit Evidence to Rebut Insurer’s Prima Facie Case.

The insurer properly presented evidence via affidavit from its peer review chiropractor with a factual basis and medical rationale why an MRI was not medically necessary to establish its prima facie case.  The plaintiff failed to submit any evidence to rebut the insurer’s showing and summary judgment in the insurer’s favor was warranted.

 

12/3/08            H.E. Tuncel, M.D. a/a/o Mohammad Kifayeh v. Progressive Cas.  Ins. Co.

Appellate Term, Second Department

Insurer Prevails on Defense of Failure to Appear for Scheduled IMEs

The insurer established that the eligible injured person failed to appear for two scheduled independent medical examinations through its chiropractor’s affidavit.  The chiropractor’s affidavit established that the eligible injured person failed to appear at the location within the scheduling letter which was the chiropractor’s office.

 

12/3/08            DJS Med. Supplies, Inc. a/a/o Anatoliy Dashkevich v. American Transit Ins. Co.

Appellate Term, Second Department

Plaintiff Not Entitled to Enter Judgment for Failure to Pay Settlement Due to Noncompliance with CPLR

The parties had resolved the no-fault action in November 2006 and when no payment was received the plaintiff in August 2007 moved, pursuant to CPLR §5003-a, for an order granting a judgment after settlement for the settlement amount plus additional interest and costs.  The insurer did not oppose the motion and the court DENIED the plaintiff’s motion.

 

On appeal, the appellate term affirmed the lower court’s decision but on different ground.  The plaintiff failed to comply with the requirements set forth in CPLR §5003-a as it failed to tender to the defendant a release and stipulation of discontinuance.  CPLR §5003-a provides that a settling defendant must pay the plaintiff within 21 days of tender by the plaintiff to the defendant of a duly executed release and stipulation of discontinuance executed by the plaintiff.  Here, the plaintiff made no showing that it actually tendered to the insurer a release and stipulation of discontinuance.

 

12/2/08            Alam v. Taxi Wheels to Lease, Inc.

Appellate Division, Second Department

Carrier’s Assertion of Comp Lien in Settlement with Non-Covered Person Permitted

A nonparty insurer was permitted to assert a Workers’ Compensation lien against plaintiff’s proposed settlement with a noncovered person as defined by Insurance Law §5104(b).  Therefore, the plaintiff must comply with the provisions of Section 29(5) of the Workers’ Compensation Law.

 

12/2/08            St. Barnabas Hosp. v. American Transit Ins. Co.

Appellate Division, Second Department

Issue of Fact Regarding Whether Verification was Outstanding

The hospital’s summary judgment motion was erroneously granted as the insurer raised an issue of fact whether verification was outstanding precluding it from denying or paying the claim until verification was received. 

 

12/2/08            Vincent Med. Servs., P.C. v. New York Cent. Mut. Fire Ins. Co.

Appellate Term, Second Department

Insurer’s Cross-Motion Denied as Failed to Establish Did Not Insure Vehicle

The insurer’s cross-motion for summary judgment was properly denied and particularly regarding the lack of insurance coverage ground.  The insurer failed to establish that it did not insure the vehicle involved in the accident on the date of loss.  Yet, the court notes that the insurer did establish through its documentation that the vehicle the eligible injured person occupied at the time of the accident was not insured by the carrier under the claimed policy number.

 

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper

[email protected]

 

Of Property (or first party)

 

11/18/08          Gassman v. Metropolitan Life Ins. Co.

Appellate Division, Second Department

Interest on a Life Insurance Policy is Governed by Insurance Law § 3214

Pursuant to the clear terms of the Insurance Law, interest on a life insurance policy shall be computed pursuant to the option elected and set forth in the policy.  Interest shall accrue from the date of death, until such amount is tendered to the beneficiary.  Insofar as Insurance Law § 3214 applies, the statutory rate for prejudgment interest is irrelevant. 

 

And Potpourri

 

12/02/08          Flederbach v. Fayman

Appellate Division, Second Department

Relation Back Doctrine of No Use to Plaintiff were Proposed Defendant had No Notice of the Accident

Plaintiff was injured in an automobile accident which resulted in the instant lawsuit.  More than three years after the matter was placed into suit, the deposition of the defendant driver was taken which revealed, for the first time, that he was operating a leased vehicle at the time of the accident.  As the statute of limitations to add the purported lessor, Chase Manhattan, had expired, plaintiff sought to add them through the relation back doctrine. 

 

Relying upon the Court of Appeals’ decision in Bill v. Jones, the Second Department noted that the Graves Amendment – which extinguished vicarious liability claims against lessors of cars – did not bar relation back claims where the incident occurred before its codification.  However, because plaintiff was unable to establish that Chase Manhattan had any notice of the incident during the time period when the statute of limitations was running the relation back doctrine did not apply.

 

11/14/08          Gillies v. National Fire. Ins. Co. of Hartford

Appellate Division, Fourth Department

The Good, The Bad, and the Creative – Plaintiff is not a Third-Party Beneficiary to a Surety Bond to Cover Tortfeasor’s Claims Expenses

The Good :       Plaintiff was awarded a $1.3 million dollar award against Consolidated

                        Freight

 

The Bad:          Consolidated was in bankruptcy at that time, and its carrier, Reliance was in

                        liquidation.

 

The Creative:  Undeterred by a carrier in liquidation and a defendant in bankruptcy,  plaintiff

tried to satisfy its award through a surety bond that Consolidated procured to cover claims expenses incurred by Reliance that fell within the deductible under Consolidated’s policy.  Unfortunately, the Fourth Department noted that the Surety Bond was payable only to Reliance, and was not assignable to any other party  Likewise there was no indication that it afforded standing to purported third-party beneficiaries.  As such, plaintiff’s attempts to satisfy its judgment were struck and the claim against the issuer of the Bond, National Fire Insurance of Hartford, was dismissed accordingly. 

 

11/18/08          Schiffman v Hann Auto Trust

Appellate Division, Second Department

“Leased vehicles” are not “Rental Vehicles” under V&T Law § 370(3)

Plaintiff was injured when struck by a vehicle owned by defendant Shiffman.  The automobile being operated by Shiffman was leased from Penn Toyota, LTD, and such lease had been assigned to defendant Hann Auto Trust.  After being named as a co-defendant, Hann commenced a cross-claim for contractual indemnification against Shiffman under the terms of the lease agreement.  However, Hann’s motion for summary judgment was denied where Shiffman raised a question as to whether the font size of the indemnification provision was compliant with CPLR § 4544. 

 

The Court went on to note that a question of fact also existed regarding whether the mandatory minimum coverage required by rental vehicles under V&T § 370(3) applied in the instant matter.  If the vehicle in question fell within the definition of a leased vehicle, and not a rental vehicle, V&T § 370(3) would be not apply. If it did not apply, defendant Shiffman would not be entitled to a set off in the amount of the mandatory amount required.  However, if V&T 370 applied, then any claim for contractual indemnification would be reduced by that amount. 

 

EARL’S PEARLS

Earl K. Cantwell, II
[email protected]

 

Surgery or Other Medical Procedures in Mitigation of Damages

 

An interesting recent case in the State of Indiana raises the issue whether and when a plaintiff’s refusal to undergo surgery, or engage in other medical procedures, can be raised in mitigation of damages.  Simmons v. Erie Insurance Exchange, 891 N.E.2d 1059 (Indiana Ct. App. 8/11/08). 

 

Simmons had underinsured motorist bodily injury coverage with Erie Insurance Exchange.  At trial, Erie argued that Simmons did not mitigate his damages by failing to undergo surgery to treat Plantar Fasciitis, and also citing his alleged failure to regularly use medications and/or orthotics.  At trial, the court gave the jury an instruction proposed by Erie Insurance on the alleged failure to mitigate damages.  On appeal, the court found that the main issue was whether the trial court erred in instructing the jury with respect to the defense of failure to mitigate damages. 

 

Generally, with respect to that defense, a defendant bears the burden of proving that the plaintiff failed to exercise reasonable care to mitigate his or her post-injury damages, and that this failure to exercise reasonable care caused the plaintiff to suffer further identifiable avoidable harms not naturally or otherwise attributable to defendant’s negligent conduct.  In this context, expert medical testimony is generally required to establish the propriety and advisability of surgical procedures, and the degree of success that might be achieved in diminishing the plaintiff’s alleged pain or symptoms.  The point of the mitigation defense is to reduce or offset damages which the plaintiff would not have incurred with the exercise of reasonable medical care and treatment. 

 

The obligation of a plaintiff to submit to invasive surgery has caused courts some conceptual trouble.  On the one hand, because surgery is an invasive procedure, courts have been reluctant to say that a plaintiff must incur an additional invasion of his or her physical well-being to “protect” the tortfeasor from the full consequences of the wrong.  On the other hand, it seems patently unfair to permit a plaintiff to voluntarily extend or aggravate pain or disability in order to enhance damages when surgery or other medical procedure could correct or greatly lessen the symptoms or disability.  Legal discussion on this issue is rare, and in the Indiana case it was noted that the state courts had not really addressed the issue for almost a century. 

 

The Indiana court ruled that whether a plaintiff has a duty to submit to surgery requires a “reasonable person” analysis.  The question is whether a reasonable person would submit to surgery – which indicates it will normally be a question for the jury if appropriate proof and argument is introduced.  The court listed the factors to be considered when making such a “reasonable person” inquiry: 

 

1.                  The likelihood that the surgery or medical procedure will correct or improve the condition, pain or symptoms;

2.                  The level of risk involved in the surgery;

3.                  The pain or inconvenience envisioned by the surgery; and

4.                  Plaintiff’s ability to incur the cost and expense of the surgery. 

 

Note that the last of these factors – plaintiff’s ability to pay for the surgery – may have to be handled carefully to avoid infecting the trial with the dreaded word “insurance.” 

                       

In the Simmons case itself, the court concluded on appeal that the evidence did not warrant the instruction on failure to mitigate damages.  Apparently, no doctor had recommended surgery.  Simmons had seen several doctors who prescribed a variety of treatments other than surgery.  Erie Insurance apparently also failed to introduce evidence regarding the propriety, risks, benefits, costs, or inconvenience of the surgery under discussion.   Defendant also failed to cite evidence indicating that the failure to undergo surgery had aggravated or increased the plaintiff’s injuries.  The court ultimately held that the jury instruction on the failure to mitigate damages was prejudicial and required reversal.  In requesting such a jury question or instruction, a defendant must be able to prove the benefit of surgery, what symptoms, costs, or further treatment it would alleviate, and how the plaintiff’s injuries were increased or aggravated or not relieved. 

The lessons to be learned from Simmons are (a) that a plaintiff who refuses to undergo surgery or reasonable medical care and treatment may be held in failure to mitigate damages, however, (b) the defendant must introduce medical evidence with respect to the surgical option, the risks, benefits, and costs thereof, and that the surgery in some fashion would alleviate pain and suffering, symptoms, or perhaps the need for other medical treatments such as extended physical therapy or extended disability.  A specific question on the jury verdict sheet as to whether the plaintiff had failed to mitigate damages, and if so in what amount, is probably advisable to determine how the jury approached and decided such questions

 

DUQUIN – THE DUKE OF LEAD

Scott M. Duquin
[email protected] 

 

LEAD the Lingering Litigation

 

Article II: Notice

 

Lead-based paint is a paint or coating with a lead content greater than or equal to 1 mg/cm² or .5% by weight.[1] Lead-based paint has been federally banned for residential use since 1978.  Your insureds most likely did not paint their property with lead-based paint, but as the old lead-based paint at the insured premises peels, chips, flakes or otherwise deteriorates, usually into dust, the lead contained therein becomes available for human ingestion.  Usually young children ingest such materials through typical hand-to-mouth behaviors common in young children.  Less common is the child actually eating the paint chip, but we have seen x-rays of the stomach where paint chips are present.  One medical doctor actually testified at trial that children prefer the leaded paint chips over their unleaded counterparts because they were sweeter in taste.  On cross-examination, when asked how the doctor knew of the taste, he replied that he had personally tasted both.  This holiday season when you go over the river and through the woods to grandma’s, we highly recommend avoiding the leaded paint chips no matter how sour the egg nog. 

 

The New York City Administrative Code defines a “lead-based paint hazard” as “any condition in a dwelling or dwelling unit that causes exposure to lead from lead-contaminated dust, from lead-based that is peeling…that is present on chewable surfaces, deteriorated subsurfaces, friction surfaces, or impact surfaces.”[2]  The same section also defines all of these different types of surfaces.  My favorite definition in the section however, is “peeling”: “the paint or other surface-coating material is curling, cracking, scaling, flaking, blistering, chipping, chalking or loose in any manner, such that a space or pocket of air thereof…that the paint is not completely adhered to the underlying surface.”[3] 

 

Under New York law, a property owner can not be held liable for lead-based hazards at the property unless the property owner had actual or constructive notice of the presence of lead-based paint at the property.  After notice, New York law charges your insured with the duty to promptly abate the hazard.  Plaintiffs generally allege the insured was negligent in maintaining the property by allowing lead-based paint hazards to exist and in failing to properly and timely abate and/or remediate the lead-based paint hazard.  The type of housing (i.e., is it a single unit in a multi unit property, a single-family home, or a city house with an upper and lower flat) and the location (i.e., is there a local ordinance regulating lead-based paint) are relevant inquiries on the notice issue.

 

Notice of lead-based paint hazards can come in the form of statutory presumption.   In New York City, there is a local ordinance that creates a presumption of notice of lead-based paint in multiple unit dwellings built before 1960.[4]  Multiple unit dwellings are residential housing units with four or more rental units.

 

If your insured purchased the subject property after 1992, actual notice of the presence of lead-based paint at the property may come from a disclosure in the real estate purchase contract, called the “Lead-Based Paint Rider”.  The Residential Lead-Based Paint Hazard Reduction Act of 1992 requires a “seller’s disclosure” of any known lead-based paint hazards.  Incidentally, this and other legislation requires your insured to advise the potential tenant of any known lead-based paint within the dwelling prior to rental and occupancy of the unit.

 

Actual notice can also come from the local health department that performed an environmental survey at the property, and then sent notice to the insured advising that there was a lead-based paint hazard at the property or there were conditions conducive to lead poisoning at the property.  Generally, the local health department environmental survey consists of a visual inspection of the property for peeling paint, and then testing for the presence of lead-based paint. 

 

Testing for lead-based paint can be done by collecting paint and/or dust samples and submitting them for laboratory analysis, which is an expensive process.  Generally, a lower-cost alternative, called XRF detection, can be used as well.  XRF detection is performed with an x-ray fluorescent analyzer.  The analyzer works by emitting radiation through the paint to the substrate of the painted surface being tested. The analyzer then counts the subatomic particles being reflected back.  Based upon the number of counts within a specified time, the analyzer determines the concentration of lead present.

                       

The problem with actual notice from a local health department is that it may come too late—environmental surveys were usually only performed after it was discovered that the potential plaintiffs had elevated blood lead levels—and the insured may have been under the duty to remediate the hazard sooner.  Unless your insured is Superman whose x-ray vision is impaired by the leaded paint chips, how can your insured tell the paint chip is leaded and not a latex-based paint chip?  New York has developed a five factor test for constructive notice of a lead-based paint hazard:

 

1)                  the insured retained a right of entry to the premise and assumed duty to                    make repairs;

2)                  the insured knew the apartment was constructed at a time before lead-based interior paint was banned;

3)                  the insured was aware paint was peeling on the premises;

4)                  the insured knew of the hazards of lead-based paint to young children; and

5)                  the insured knew that a young child lived in the apartment.[5]

           

If all of these factors are met, then the insured is deemed to have constructive notice of a lead-based paint hazard at the property.  New York case law has also developed a rule that if the property owner had notice of a lead-based paint condition at the property in a common area—a shared space such as doorways, entrance, hallways, shared stairways, and the exterior of the premise—then the insured is charged with having notice of a lead-based paint condition within the subject apartment. [6]

 

Once the insured has notice of the lead-based paint hazard, they have a duty to fix the problem.  If improper abatement techniques are employed, the lead-based paint hazard may actually be exacerbated.   When interviewing your insured in evaluating the claim, it is important to inquire as to what abatement or remediation work was done at the premise.  Information to ascertain includes: whether the insured visited the EPA web site, reviewed any government publications or pamphlets, and/or spoke with the local health department regarding proper abatement techniques before performing any abatement; whether the abatement was a do-it-yourself project or performed by an experienced general contractor; whether steps were taken to control dust; how the abatement site was cleaned; and whether the plaintiff was present while the abatement work was being performed.

 

We have been getting excellent feedback from our readers and will be tailoring future pieces here to address some of the issues raised.  If you have something specific you would like addressed, please let us know.  Next issue we will begin looking at other sources of lead exposure, including kid’s toys.  After the New Year, we will be examining insurance coverage and insurance regulation issues with respect to lead-based paint. 

 

ACROSS BORDERS

12/08/08          Rallya v. A.J. Rose Mfg. Co.
Ohio Ninth Judicial District
Summary Judgment Reversed on Intentional Workplace Injury Claim
Rallya was working for A.J. Rose as a tool and die maker, "flipping" a die to access the internal tooling, when the 4,760-pound die fell on his feet, severely injuring him. Rallya refiled a complaint sounding in employer intentional tort. His wife Virginia alleged a claim for loss of consortium. The trial court granted the motion for summary judgment in favor of A.J. Rose and against Rallya. Although A.J. Rose presented evidence that there have been no formal written safety concerns regarding the use of wheeled horses in the die flipping procedure, Rallya presented evidence that A.J. Rose was aware of employee concerns that the use of unstable, wheeled horses during flipping was dangerous, especially in light of the limited range of movement away from the die during flipping due to the use of a corded crane control. Specifically, Rallya presented evidence to show that a question exists regarding whether A.J. Rose, through its supervisors, managers, directors and/or owner, was aware that the use of wheeled horses during the die flipping procedure constituted a dangerous process or procedure. Accordingly, the trial court erred by finding that no genuine issue of material fact existed regarding the first prong of the Fyffe test. Based on a review of the evidence, the Court concluded that Rallya met his reciprocal burden to show that a genuine issue of material fact exists regarding whether A.J. Rose knew that if employees were subjected to the company's die flipping procedure using wheeled horses that harm to the employees would be a substantial certainty. There were prior incidents of dies falling and causing property damage, if not personal injuries. There is evidence that numerous employees discussed their concerns about the safety of the use of wheeled horses to flip dies, especially those with uneven weight distribution, and that many employees expressed their beliefs that someone would be injured by the process. In its motion for summary judgment, A.J. Rose argued that it neither required nor expected that Rallya would be standing "in the zone of danger" when the horse "kicked out" and the die fell on his foot. A.J. Rose argued that Rallya had been trained to stand to the side of the die when flipping, never to the front. The company argued that, because Rallya was injured when he was standing in front of the die against company training and policy, he cannot prevail on his claim. Under the circumstances, Rallya has met his reciprocal burden under Tompkins, supra, to show that a genuine issue of material fact existed regarding whether A.J. Rose required him to continue to perform the dangerous task. Flipping dies was a necessary part of his work as a tool and die maker. He, along with other tool and die makers, received no formal die flipping training. Not only was he never directed to stand in any particular place when flipping a die, there is no evidence that the company ever identified a "zone of danger" to any employee.

Submitted by: Debra T. Herron (McNeer Highland McMunn and Varner, L.C.)

 

12/02/08          United States Fidelity & Guaranty Co. v. Liberty Surplus Ins. Co.
Eleventh Circuit

Under Florida Law, Does The Doctrine of Lex Loci Contractus Apply To Comprehensive General Liability Insurance Policies Made Outside Florida?
In a Florida district court coverage action involving a commercial general liability insurance policy for a commercial contractor, the question presented was whether the law of the place of contracting, which was Massachusetts, or the law of the place of the insured’s risk, which was Florida, governs a dispute involving damage for work performed in Florida under a policy issued to a Massachusetts contractor. The district court determined that the Supreme Court of Florida would apply the law of Massachusetts, under the doctrine of lex loci contractus. Lex loci contractus provides that the law of the state where the contract was made or to have been performed governs the interpretation of the contract. On appeal, the Eleventh Circuit held that because state law is unsettled on this issue, it would certify the following question to the Supreme Court of Florida: “Does the doctrine of lex loci contractus apply to a dispute about coverage that involves a policy for comprehensive general liability insurance, made outside of Florida, that insures the operations of a contractor on a project located in Florida?”

Submitted by: Sedgwick, Detert, Moran & Arnold LLP (Bruce D. Celebrezze & Michelle Y. McIsaac)

 

REPORTED DECISIONS

 

Balamos v. Elmhurst Realty Co. I, LLC

Michael N. David, New York, N.Y., for appellant.
Gallo, Vitucci, Klar, Pinter & Cogan, LLP, New York, N.Y.
(Yolanda L. Ayala, Richard J. Gallo,
and Kimberly Ricciardi of counsel), for
respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Agate, J.), entered January 14, 2008, as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants Savino Maintenance, LLC, and Michael J. Savino Management.

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

Workers' Compensation Law §§ 11 and 29(6) provide that an employee who elects to receive compensation benefits may not sue his or her employer in an action at law for the injuries sustained. These exclusivity provisions also have been applied to shield persons or entities other than the injured plaintiff's direct employer from suit, including special employers (see Fung v Japan Airlines Co., Ltd., 9 NY3d 351; Thompson v Grumman Aerospace Corp., 78 NY2d 553). Thus, an injured person who elects to receive Workers' Compensation benefits from his or her general employer is barred from maintaining a personal injury action against his or her special employer (see Fung v Japan Airlines Co., Ltd., 9 NY3d 351, 358-359; Thompson v Grumman Aerospace Corp., 78 NY2d 553, 560). Although many factors are considered in determining whether a special employment arrangement exists, significant weight is placed upon "who controls and directs the manner, details and ultimate result of the employee's work" (Thompson v Grumman Aerospace Corp., 78 NY2d at 558; see Altima v East 72nd Garage Corp., 54 AD3d 978; Graziano v 110 Sand Co., 50 AD3d 635). Other relevant factors include who is responsible for the payment of wages, who furnishes the worker's equipment, who had the right to hire and discharge the worker, and whether the work being performed was in furtherance of the special employer's or the general employer's business (see Navarette v A & V Pasta Prods., Inc., 32 AD3d 1003; Perkins v Dryden Ambulance, Inc., 31 AD3d 859; Alvarez v Cunningham Assoc., L.P., 21 AD3d 517, 518; Matthews v Town of Morristown, 286 AD2d 535).

The defendants Savino Maintenance, LLC, and Michael J. Savino Management (hereinafter together the Savino defendants), made a prima facie showing that they were entitled to summary judgment on the ground that the plaintiff was their special employee. In support of the motion, the Savino defendants submitted the deposition testimony of one of their principals, which established that they hired the plaintiff to perform brick-pointing work on an apartment building which they managed and maintained, that the plaintiff was supervised by one of their direct employees, that they had the exclusive authority to discharge the plaintiff, that they provided the plaintiff with the equipment necessary to perform his work, and that the work performed was in furtherance of their responsibility to provide management and maintenance services for the apartment building (see Robertson v Moveway Transfer & Stor., 44 AD3d 839; Ugijanin v 2 W. 45th St. Joint Venture, 43 AD3d 911; Navarette v A & V Pasta Prods., Inc., 32 AD3d 1003; Gherghinoiu v ATCO Props. & Mgt., Inc., 32 AD3d 314; Martinez v Fifty Two W. Seventy Seventh St. Corp., 39 AD3d 503). In opposition to the motion, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly concluded that the plaintiff's receipt of Workers' Compensation benefits from his general employer precludes his action against the Savino defendants.

Tartaro v. Allstate Indemnity Company

Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Charles W. Benton
of counsel), for appellant.
Anthony P. Marchesi, Garden City, N.Y. (John V. Decolator of
counsel), for respondents.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Feinman, J.), dated September 21, 2007, as denied those branches of its motion which were pursuant to CPLR 3211(a)(7) to dismiss the second and third causes of action for failure to state a cause of action or pursuant to CPLR 3212 for summary judgment dismissing those causes of action.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the defendant's motion which were pursuant to CPLR 3211(a)(7) to dismiss the second and third causes of action for failure to state a cause of action are granted, and those branches of the motion which were pursuant to CPLR 3212 for summary judgment dismissing those causes of action are denied as academic.

The Supreme Court erred in denying that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action, seeking punitive damages, for failure to state a cause of action. New York does not recognize an independent cause of action for punitive damages (see Aronis v TLC Vision Ctrs., Inc., 49 AD3d 576). Therefore, the plaintiffs failed to state a cause of action upon which relief may be granted, as they are unable to assert an underlying cause of action upon which a demand for punitive damages can be grounded (see Cinderella Holding Corp. v Calvert Ins. Co., 265 AD2d 444).

Contrary to the plaintiffs' contention, punitive damages are not recoverable in an ordinary breach of contract case, as their purpose is not to remedy private wrongs but to vindicate public rights. Punitive damages are only recoverable where the breach of contract also involves a fraud evincing a high degree of moral turpitude, and demonstrating such wanton dishonesty as to imply a criminal indifference to civil obligations, and where the conduct was aimed at the public generally (see New York Univ. v Continental Ins. Co, 87 NY2d 308, 315-316; Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 613). Punitive damages are available where the conduct associated with the breach of contract is first actionable as an independent tort for which compensatory damages are ordinarily available, and is sufficiently egregious to warrant the additional imposition of exemplary damages. A party must demonstrate not only egregious tortious conduct, but also that such conduct was part of a pattern of similar conduct directed at the public generally (see New York Univ. v Continental Ins. Co, 87 NY2d at 316; Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d at 613). Here, the defendant showed that its conduct was not egregious or of high moral turpitude, and thus was not actionable as an independent tort. Furthermore, there is no evidence of a pattern of egregious conduct directed toward the public at large.

The Supreme Court also erred in denying that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the third cause of action, alleging negligent and intentional infliction of emotional distress, for failure to state a cause of action. To establish liability for the intentional infliction of emotional distress, the plaintiffs were required to show that the defendant's conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency" (Ruggiero v Contemporary Shells, 160 AD2d 986, 987; see Freihofer v Hearst Corp., 65 NY2d 135, 143). That same test has been applied to causes of action for the negligent infliction of emotional distress (see Chime v Sicuranza, 221 AD2d 401; Burrell v International Assn. of Firefighters, 216 AD2d 346). Here, accepting the allegations of the complaint as true, they do not allege conduct so outrageous in character, and so extreme in degree, as to state a cause of action for negligent or intentional infliction of emotional distress (see Curry v Dollard, 52 AD3d 642).

Quest Builders Group, Inc., v. Deco Interior Construction, Inc.

Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T.
Fitzpatrick, Glenn A. Kaminska, and Brian F. Mark of counsel), for
appellants-respondents.
Ford Marrin Esposito Witmeyer & Gleser, LLP, New York, N.Y.
(James M. Adrian and Andrew I.
Mandelbaum of counsel), for
respondent-appellant.


DECISION & ORDER

In an action, inter alia, for a judgment declaring that the defendant Burlington Insurance Company is obligated to defend and indemnify the plaintiffs in an underlying action entitled McDermott v Prospective, LLC, pending in Supreme Court, New York County, under Index No. 113906/04, the plaintiffs appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Nassau County (LaMarca, J.), dated October 19, 2007, as denied their motion for summary judgment declaring that the defendant Burlington Insurance Company is obligated to defend and indemnify them in the underlying action, and (2) so much of an order of the same court dated April 4, 2008, as, upon reargument, adhered to the original determination denying their motion, and the defendant Burlington Insurance Company cross-appeals, as limited by its brief, from so much of the order dated October 19, 2007, as denied its cross motion for summary judgment declaring that it was not obligated to defend or indemnify the plaintiffs in the underlying action. The cross appeal brings up for review so much of the order dated April 4, 2008, as, upon reargument, adhered to the original determination denying the cross motion of the defendant Burlington Insurance for summary judgment (see CPLR 5517[b]).

ORDERED that the appeal and cross appeal from the order dated October 19, 2007, are dismissed, as that order was superseded by the order dated April 4, 2008, made upon reargument; and it is further,

ORDERED that the order dated April 4, 2008, is reversed insofar as appealed from, on the law, upon reargument, the original determination in the order dated October 19, 2007, denying the plaintiffs' motion for summary judgment declaring that the defendant Burlington Insurance Company was obligated to defend and indemnify them in the underlying action is vacated, and thereupon, the plaintiffs' motion is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the defendant Burlington Insurance Company is obligated to defend and indemnify the plaintiffs in the underlying action; and it is further,

ORDERED that the order dated April 4, 2008, is affirmed insofar as reviewed on the cross appeal; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The plaintiffs commenced this action, inter alia, for a judgment declaring that the defendant Burlington Insurance Company (hereinafter Burlington) is obligated to defend and indemnify them in an underlying action entitled McDermott v Prospective, LLC, pending in Supreme Court, New York County, under Index No. 113906/04 (hereinafter the underlying action). The plaintiff Quest Builders Group, Inc. (hereinafter Quest), is an additional insured under a policy issued by Burlington to the defendant Deco Interior Construction, Inc. (hereinafter Deco). Burlington denied coverage on the ground that the notice of claim was untimely, and based on a policy exclusion for injuries to employees of Deco. (The plaintiff in the underlying action was an employee of Deco.) The plaintiffs moved for summary judgment declaring that Burlington was obligated to defend and indemnify them in the underlying action, and Burlington cross-moved for summary judgment declaring that it was not so obligated. The Supreme Court denied the motion and cross motion and, upon reargument, adhered to those determinations.

Upon reargument, the Supreme Court erred in adhering to its original determination denying the plaintiffs' motion for summary judgment declaring that Burlington was obligated to defend and indemnify them in the underlying action. The plaintiffs demonstrated a prima facie entitlement to judgment as a matter of law with evidence that Burlington's delay in issuing a disclaimer of coverage was unreasonable as a matter of law, and that, consequently, Burlington was precluded from disclaiming coverage based on a late notice of claim or a policy exclusion (see Insurance Law § 3420[d]; Tex Dev. Co., LLC v Greenwich Ins. Co., 51 AD3d 775; Sirius Am. Ins. Co. v Vigo Constr. Corp., 48 AD3d 450; Liberty Mut. Fire Ins. Co. v National Cas. Co., 47 AD3d 770; Quincy Mut. Fire Ins. Co. v Uribe, 45 AD3d 661; Matter of Allstate Ins. Co. v Swinton, 27 AD3d 462). In opposition, Burlington failed to raise a triable issue of fact as to whether the delay was reasonably related to the completion of a necessary, thorough, and diligent investigation, or whether there was any other satisfactory explanation for the delay (see Quincy Mut. Fire Ins. Co. v Uribe, 45 AD3d 661; Tully Constr. Co., Inc. v TIG Ins. Co., 43 AD3d 1150).

The parties' remaining contentions are without merit.

Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that Burlington is obligated to defend and indemnify the plaintiffs in the underlying action (see Lanza v Wagner, 11 NY2d 317, 334, lv dismissed 371 US 74, cert denied 371 US 901).

Innocent v. Mensah

Feinman & Grossbard, P.C., White Plains (Steven N. Feinman
of counsel), for appellants.
Mitchell Dranow, Mineola, for respondent.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered April 4, 2008, which denied the motion of defendants Seth Mensah and Yahya Karogor for summary judgment dismissing the complaint as against them on the ground that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d), unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed as against Mensah and Karogor. The Clerk is directed to enter judgment accordingly.

Summary judgment dismissing the complaint as against Mensah and Karogor should have been granted where plaintiff's opposition to defendants' prima facie showing that the subject automobile accident did not cause plaintiff to sustain a serious injury
failed to raise a triable issue of fact. Although plaintiff claimed to be afflicted with continuing pain, and submitted evidence, in the form of MRIs performed two months after the accident, of the existence of herniated and bulging discs, he acknowledged that he only missed a few days from work, did not seek medical treatment for any disabling condition, but instead, underwent a limited period of physical therapy and acupuncture treatment (see Rossi v Alhassan, 48 AD3d 270 [2008]).

Proof of a bulging or herniated disc, in the absence of "additional objective medical evidence establishing that the accident resulted in significant physical limitations," is insufficient to demonstrate a serious injury (Pommells v Perez, 4 NY3d 566, 574 [2005], and plaintiff offered no competent medical proof that substantiated his contention that he could not perform his daily tasks (see Arjona v Calcano, 7 AD3d 279, 280 [2004]). Furthermore, the radiologist who interpreted the MRIs made no representation that plaintiff's injuries were caused by, or related to, the accident, and plaintiff's expert, who examined plaintiff more than three years after the accident, stated his opinion in a conclusory manner without explaining why he believed the injuries were the result of the accident (id.).

Migliaccio v. Miruku

Kerner & Kerner, New York (Kenneth T. Kerner of counsel),
for appellants.
Cheven, Keely & Hatzis, New York (William B. Stock of
counsel), for respondent.

Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered September 5, 2007, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The injured plaintiff alleged that a car driven by defendant backed into her in a crosswalk in Queens in March 2003. She testified that she missed one week from work immediately after the accident, and an additional two weeks over the course of the year. She stopped going for treatment in December of that year because she said it was not helping with the pain.

Defendant moved for summary judgment on the ground that plaintiff did not suffer a "serious injury" within the meaning of Insurance Law § 5102(d), submitting the reports of various medical experts. A neurologist reported a normal examination, with mild tenderness in the cervical and lumbar spine. An orthopedic surgeon concluded that the patient had suffered sprains of the neck, back and right knee, and made a complete recovery. A radiologist reviewed MRIs taken seven and eight months after the accident, which he said showed longstanding degenerative conditions in the cervical spine and right knee, not causally related to the accident. This evidence was sufficient to sustain defendant's initial burden of establishing that the injured plaintiff had not suffered a serious injury, and the burden then shifted to plaintiffs to demonstrate a triable issue of fact by coming forward with evidence to overcome defendant's submissions (Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; Shinn v Catanzaro, 1 AD3d 195, 197 [2003]).

Although plaintiffs submitted reports of numerous experts, all but one were unsworn and not affirmed. Statements and reports by the injured party's examining and treating physicians that are unsworn or not affirmed to be true under penalty of perjury do not meet the test of competent, admissible medical evidence sufficient to defeat a motion for summary judgment (McLoyrd v Pennypacker, 178 AD2d 227, 228 [1991], lv denied 79 NY2d 754 [1992]). The only report in admissible form reflected findings made almost four years after the accident, and stated in conclusory fashion that the conditions noted were causally related to the accident. However, it did not address the findings of defendant's experts, which were supported by the patient's MRIs, that the conditions were degenerative in nature. Conclusory assertions tailored to meet statutory requirements are insufficient to raise a triable issue of fact concerning serious injury (Gaddy, 79 NY2d at 958). In the absence of admissible contemporaneous evidence of a serious injury, the proffered conclusions of plaintiffs' expert are insufficient (Petinrin v Levering, 17 AD3d 173 [2005]).

Dilone v. Tak Leu Cheng

Steven Siegel, P.C., Kew Gardens (Wendy Bishop of counsel),
for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Holly E. Peck of counsel), for respondent.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered July 20, 2007, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants' experts' findings, upon objective testing, that plaintiff's injuries had resolved by the time of examination nine months after the accident demonstrated prima facie that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d) (see Brown v Achy, 9 AD3d 30, 31 [2004]).  As plaintiff's submissions address her condition within 92 days of the accident, plaintiff failed to rebut defendants' experts' findings (see Hoisington v Santos, 48 AD3d 333 [2008]). Her osteopath's report failed to establish an adequate causal connection between plaintiff's claimed continuing range of motion limitations and the accident. Moreover, plaintiff did not adequately explain the 14-month gap in her treatment (see Pommels v Perez, 4 NY3d 566, 574 [2005]).

Plaintiff's submissions were also insufficient to raise an issue of fact as to her 90/180-day claim (see Grimes-Carrion v Carroll, 17 AD3d 296, 297 [2005]; Thompson v Abbasi, 15 AD3d 95, 100-101 [2005]).

Carrillo v. DiPaola

Cannon & Acosta, LLP, Huntington Station, N.Y. (June Redeker
and Roger Acosta of counsel), for appellants.
Richard T. Lau, Jericho, N.Y. (Kathleen E. Fioretti of counsel),
for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Phelan, J.), dated September 24, 2007, as granted the defendant's motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

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

The defendant met his prima facie burden of showing that neither of the plaintiffs sustained 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 Giraldo v Mandanici, 24 AD3d 419; Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456). In opposition, the plaintiffs failed to raise a triable issue of fact.

The plaintiffs principally relied on the affirmations of Dr. Joseph Perez, their treating physician, to oppose the defendant's motion. Dr. Perez's affirmation concerning the plaintiff Julia Carrillo failed to raise a triable issue of fact as to whether she sustained a serious injury under the significant limitation and/or permanent limitation-of-use categories of Insurance Law § 5102(d) because his findings were not based on a recent examination (see Landicho v Rincon, 53 AD3d 568, 569; Cornelius v Cintas Corp., 50 AD3d 1085; Young Hwan Park v Orellana, 49 AD3d 721; Amato v Fast Repair Inc., 42 AD3d 477).

Dr. Perez's affirmation concerning the plaintiff Edwin Carrillo also failed to raise a triable issue of fact as to whether that plaintiff sustained a serious injury to his lumbar spine or cervical spine under the same categories of Insurance Law § 5102(d), because Perez failed to reconcile his report dated May 16, 2006, with the findings in his subsequent affirmation, based, in part, on that report. Dr. Perez clearly set forth in his affirmed medical report dated May 16, 2006, that Edwin had full range of motion in his cervical, thoracic, and lumbar spines as of that date. Yet in his affirmation, which was based in part on that report, he determined that Edwin had range-of-motion limitations in those areas in 2007. His failure to reconcile his findings in 2007 with his findings of full range of motion in 2006 rendered his affirmation insufficient to raise a triable issue of fact (see Magarin v Kropf, 24 AD3d 733; Powell v Hurdle, 214 AD2d 720; Antorino v Mordes, 202 AD2d 528). Furthermore, it is clear that Dr. Perez relied on unsworn reports of other physicians in coming to his conclusions in his affirmation (see Uribe-Zapata v Capallan, 54 AD3d 936; 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).

Domanas v. Delgado Travel Agency, Inc.

Buratti, Kaplan, McCarthy & McCarthy, East Elmhurst, N.Y.
(E. Richard Vieira of counsel), for appellants.
Tumelty & Spier, LLP (Michael J. Andrews, P.C., New York,
N.Y., of counsel), 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.), dated December 14, 2007, which, upon reargument, vacated an original determination in an order dated June 18, 2007, granting 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), and thereupon denied their motion for summary judgment.

ORDERED that the order is affirmed, with costs.

The plaintiff, a licensed physical therapist, allegedly was injured in a parking garage on January 20, 2005, when the car he was operating was struck in the rear by a vehicle driven by the defendant Mario A. Erazo and owned by the defendant Delgado Travel Agency, Inc. For a period of approximately 3 months following the accident, the plaintiff was treated for injuries he allegedly sustained, but then he apparently stopped treatment for a period of approximately 19 months. After the plaintiff commenced this action, discovery was conducted and the defendants moved for summary judgment dismissing the complaint. In granting the motion, the Supreme Court found that the defendants established their prima facie entitlement to judgment as a matter of law and it also found, erroneously, that the plaintiff's expert proof had not been submitted in admissible form. Upon reargument, the Supreme Court vacated its original determination and denied the defendants' motion. We affirm.

The defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Gaddy v Eyler, 79 NY2d 955, 956-957; Luckey v Bauch, 17 AD3d 411; Sims v Megaris, 15 AD3d 468; Check v Gacevk, 14 AD3d 586). In opposition, however, the plaintiff raised a triable issue of fact by submitting, inter alia, the affirmed reports of his examining physicians (see Altreche v Gilmar Masonry Corp., 49 AD3d 479; Lim v Tiburzi, 36 AD3d 671, 672; Clervoix v Edwards, 10 AD3d 626, 627). Moreover, contrary to the defendants' contention, the plaintiff adequately explained the apparent 19-month gap in his medical treatment by his testimony that his no-fault benefits were cut off and he could no longer afford to pay for treatment, but that colleagues at his place of employment had, as a professional courtesy, performed physical therapy on him and he had performed home therapy exercises on his own (see Jules v Barbecho,AD3d, 2008 NY Slip Op 07622 [2d Dept 2008]; Francovig v Senekis Cab Corp., 41 AD3d 643, 644; Williams v New York City Tr. Auth., 12 AD3d 365; Black v Robinson, 305 AD2d 438, 439-440). Accordingly, upon reargument, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.

Johnson v. Berger

Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y.
[Marshall D. Sweetbaum], of counsel), for appellants.
Barry M. Sweeney, Cross River, N.Y., for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Queens County (Dorsa, J.), dated January 18, 2008, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff Philip Johnson 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.

In support of their motion for summary judgment dismissing the complaint, the defendants submitted the deposition testimony of the injured plaintiff, Philip Johnson, and the affirmed medical reports of their examining neurologist, orthopedist, and radiologist, which established prima facie that Johnson 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 345). In opposition, the plaintiffs failed to raise a triable issue of fact. The affidavit of Johnson's treating chiropractor was based upon his examinations of Johnson 3½ to 4 years before the motion for summary judgment was made (see Batista v Olivo, 17 AD3d 494; Frier v Teague, 288 AD2d 177, 178; Hand v Bonura, 283 AD2d 608, 609; Mohamed v Dhanasar, 273 AD2d 451), and failed to address the finding of the defendants' examining radiologist that Johnson's lumbar spine bulging discs were due to degenerative processes, and the fact that the plaintiff had admittedly sustained two or three injuries at work, including an injury to his back and an injury to his left knee (see Tudisco v James, 28 AD3d 536, 537; Giraldo v Mandanici, 24 AD3d 419, 420; Allyn v Hanley, 2 AD3d 470, 471; Lorthe v Adeyeye, 306 AD2d 252, 253). Furthermore, the plaintiff failed to proffer 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 Sainte-Aime v Ho, 274 AD2d 569, 570; DiNunzio v County of Suffolk, 256 AD2d 498, 499).

Villeda v. Cassas

James P. Harris, Goshen, N.Y., for appellant.
Susan B. Owens, White Plains, N.Y. (Paul L. Neugebauer 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, Orange County (Giacomo, J.), dated July 26, 2007, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The plaintiff alleges that she sustained various physical and psychological injuries from an accident on August 5, 2003, in which the defendants' motor vehicle collided with her motor vehicle. After the plaintiff commenced this action, the defendants moved 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).

The defendants established, prima facie, that the injuries the plaintiff allegedly sustained either were not serious within the meaning of Insurance Law § 5102(d) or were not the result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352; Gaddy v Eyler, 79 NY2d 955, 957). Although "'a causally-related emotional injury, alone or in combination with a physical injury, can constitute a serious injury'" (Taranto v McCaffrey, 40 AD3d 626, 627, quoting Bissonette v Compo, 307 AD2d 673, 674), any psychological condition or depression sustained by the plaintiff was found by the defendants' neurological expert to be unrelated to the subject motor vehicle accident, in light of detailed medical records prepared by the plaintiff's own treating physician establishing that her depressive condition had continually existed since 2000.

The evidence submitted by the plaintiff in opposition to the defendants' motion failed to raise a triable issue of fact (see Olson v Russell, 35 AD3d 684). The affidavit submitted by the plaintiff's treating neurologist, aside from relying in part upon an unsworn EEG report of another physician (see Olson v Russell, 35 AD3d 684, 685; Magarin v Kropf, 24 AD3d 733, 734; Friedman v U-Haul Truck Rental, 216 AD2d 266, 266-267), sets forth a diagnosis of post-traumatic encephalopathy and concussion based only upon the plaintiff's subjective complaints, as all admissible objective test results were normal or inconclusive (see Franchini v Palmieri, 1 NY3d 536, 537).

The plaintiff's remaining contentions are without merit.

In re The Hanover Insurance Company v. Lewis

Susan R. Nudelman, Westbury, for appellant.
Goldman & Grossman, New York (Eleanor R. Goldman of
counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Lottie E. Wilkins, J.), entered August 22, 2007, granting the petition brought pursuant to CPLR article 75 to permanently stay uninsured motorist arbitration, unanimously affirmed, without costs.

Physical contact is a condition precedent to the arbitration of this uninsured motorist claim, and whether or not there was physical contact between the insured vehicle and an alleged "hit and run" vehicle is an issue of fact to be decided by the court (see Matter of Empire Mut. Ins. Co. [Zelin], 120 AD2d 365 [1986]; see also Lumbermens Mut. Cas. Co. v Nespolini, 281 AD2d 365 [2001]). Here, the evidence at the framed-issue hearing establishes that the court's determination that the vehicle driven by respondent did not come into contact with another vehicle at the time of the accident was supported by a fair interpretation of the evidence, and there is no basis to disturb the hearing court's credibility determinations (see e.g. Claridge Gardens v Menotti, 160 AD2d 544 [1990]). Respondent acknowledged that he told the police officer who responded to the scene of the accident that he had only been cut off, and the police report, which was entered into evidence without objection, is consistent with respondent's testimony.

In re Allstate Insurance Company v. Harris

Law Office of Eric N. Wolpin, New York (Thomas G. Connolly
of counsel), for appellant.
Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck (Sara
Luca Salvi of counsel), for Allstate Insurance Company,
respondent.
Paul I. Marx, White Plains, for Materia respondents.

Order, Supreme Court, Bronx County (Alan J. Saks, J.), entered April 3, 2007, which granted petitioner Allstate Insurance Company's application for a permanent stay of arbitration, unanimously affirmed, with costs.

We decline to reach respondent National Grange Mutual Insurance Company's argument, advanced for the first time on appeal, that an insurer need not file a notice of termination with the Commissioner of the Department of Motor Vehicles after the insured has failed to pay a renewal premium on a policy that had been in force for six months. Were we to consider this argument, we would find it without merit, as it relies on a version of Vehicle and Traffic Law § 313(2)(a) that has not been in effect since 1998 (see L 1998, ch 509).

IBEX Construction, LLC v. Utica National Assurance Company

French & Rafter, LLP, New York (Howard K. Fishman of
counsel), for appellants-respondents.
Lustig & Brown, LLP, Orangeburg (James M. Haddad of
counsel), for respondent-appellant.

Order, Supreme Court, New York County (Louis B. York, J.), entered February 27, 2008, which denied plaintiffs' motion for summary judgment declaring that defendant was obligated to defend and indemnify plaintiff IBEX Construction in the underlying personal injury action, and denied defendant's motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant plaintiffs' motion, and otherwise affirmed, without costs.

The allegations in the personal injury complaint, and the subsequent trial thereof, make clear that the plaintiff in the underlying action claimed he fell from an improperly secured ladder provided by his employer, defendant's insured and a subcontractor of IBEX. In a post-trial appeal, this Court held that IBEX was liable to the employee, pursuant to Labor Law § 240(1) (see Bradley v IBEX Constr., LLC, 54 AD3d 626, 627 [2008]). Thus, IBEX is an additional insured as defined by the policy, i.e., one "held liable for [the insured's] acts or omissions arising out of . . . ongoing operations performed by [the insured] or [its] subcontractors" (see BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d 708, 714 [2007]). Defendant's duty to defend IBEX was triggered by the allegations in the underlying complaint, which brought the claims potentially within the scope of coverage (id.).

Sky v. Tabs

Kelly, Rode & Kelly, LLP, Mineola (Susan M. Ulrich of
counsel), for appellant.
The Zaloudek Law Firm, P.C., New York (Steven J. Zaloudek
of counsel), for respondent.

Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered March 20, 2008, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

On June 3, 2003, plaintiff and defendant were involved in a motor vehicle accident in which a vehicle driven by plaintiff was struck by a vehicle driven by defendant. Plaintiff commenced this action against defendant to recover damages for neck and back injuries she allegedly sustained as a result of that accident. Defendant moved for summary judgment dismissing the complaint, arguing, among other things, that plaintiff's injuries were not caused by the accident. In support of his motion, defendant submitted plaintiff's deposition testimony in which she stated that she had been injured in three accidents prior to the motor vehicle accident involving defendant. In April 1997 plaintiff was involved in a motor vehicle accident that caused injuries to her neck and back. In May or July 2001 plaintiff was in another motor vehicle accident that also caused injuries to her neck and back. Later in 2001 plaintiff slipped and fell, again sustaining injuries to her neck and back. Notably, plaintiff obtained chiropractic care and physical therapy for the neck and back injuries she sustained as a result of these three accidents. In fact, only three weeks prior to the June 2003 accident, plaintiff received chiropractic treatment for the neck and back injuries she sustained in the slip and fall accident.

Additionally, defendant submitted the July 10, 2003 MRI report of a radiologist consulted by plaintiff's treating physician. The report indicated that plaintiff had a herniated disk at C6-C7, a minimal bulge at T3-T4 and "small central bulges" at L3-L4 and L4-L5 caused by degenerative disease. The radiologist compared the July 9, 2003 MRI films on which his report was based to MRI films of plaintiff's spine taken prior to the June 2003 accident on March 22, 2002, and concluded that there was "no significant interval change" in plaintiff's spine between the films.^[FN1]

In opposition, plaintiff submitted the joint sworn-to-report of a physician and a chiropractor averring that plaintiff had certain limitations in the range of motion in both the cervical and lumbar portions of her spine, and, as a result, "suffers from a 15% permanent whole person impairment as it relates to the cervical spine, of which 10% is preexisting, and 5% is directly and causally related to the [June 2003 accident] . . . [and] an 11% permanent whole person impairment as it relates to the lumbar spine, of which 8% is preexisting, and 3% is directly and causally related to the [June 2003 accident]." That report, however, does not even mention let alone discuss the above-noted prior accidents that caused injuries to plaintiff's neck and back.^[FN2]

Supreme Court denied defendant's motion, finding triable issues of fact with respect to whether plaintiff suffered a serious injury. We conclude that defendant made a prima facie showing of entitlement to summary judgment dismissing the complaint and, in opposition, plaintiff failed to raise a triable issue of fact. Accordingly, we reverse.

Defendant submitted evidence, including plaintiff's own deposition testimony, that she sustained neck and back injuries in three separate accidents in the six years and two months prior to the motor vehicle accident giving rise to this litigation. Plaintiff obtained chiropractic care and physical therapy for those injuries, and, only three weeks prior to the June 2003 accident, plaintiff received chiropractic treatment for the neck and back injuries she sustained in the 2001 slip and fall accident. Evidence of plaintiff's prior neck and back injuries, coupled with the July 2003 MRI report in which plaintiff's consulting radiologist concluded that there was "no significant interval change" in her spine between the films taken approximately one year and two months prior to the June 2003 accident and the July 2003 films, was sufficient to establish defendant's prima facie showing of entitlement to judgment as a matter of law (see Brewster v FTM Servo, Corp., 44 AD3d 351, 352 [2007] ["Once a defendant has presented evidence of a pre-existing injury, even in the form of an admission made at a deposition, it is incumbent upon the plaintiff to present proof to meet the defendant's asserted lack of causation"] [internal citation omitted]; Figueroa v Castillo, 34 AD3d 353, 353-354 [2006] ["Defendants' submissions included excerpts from plaintiff's deposition, as well as medical reports by plaintiff's doctors, and described another automobile accident one month before the subject accident, wherein she sustained similar knee and back injuries, and a fall on the same knee subsequent to the latest accident. These established additional contributing factors, interrupting the chain of causation between the subject accident and claimed injury, thereby shifting the burden of proof to plaintiff"]; see also Ronda v Friendly Baptist Church, 52 AD3d 440, 441 [2008] ["Defendants carried their initial burden of showing that plaintiff's shoulder tendon tear and other injuries were not proximately caused by the subject accident, by submitting reports of plaintiff's previous line-of-duty injuries and the opinion of their examining orthopedist, based in part on the MRI report describing arthritic changes in the shoulder joint as degenerative, that the shoulder injury was among plaintiff's preexisting conditions"] [internal citation omitted]).

In opposition, plaintiff failed to raise a triable issue of fact since her experts failed to address how her "current medical problems, in light of her past medical history, are causally related to the subject accident" (Style v Joseph, 32 AD3d 212, 214 [2006]). The most glaring deficiency in plaintiff's opposition is that her experts did not discuss her prior neck and back injuries at all (see Becerril v Sol Cab Corp., 50 AD3d 261, 261-262 [2008] ["plaintiff conceded at his deposition that he sustained injuries to his neck and back in a prior accident, and an MRI conducted shortly after the subject accident showed degenerative disc disease. In these circumstances, it was incumbent upon plaintiff to present proof addressing the asserted lack of causation"]; Brewster, 44 AD3d at 352; see also Donadio v Doukhnych, ___AD3d___, 2008 NY Slip Op 07612 [2d Dept, Oct. 7, 2008] ["The plaintiffs relied solely on the affirmed medical report of the injured plaintiff's treating physician. That report failed to acknowledge that the injured plaintiff had been involved in two other accidents in which he injured his neck, back, and shoulders. In light of this omission, the treating physician's conclusion that the injuries and range of motion limitations to the injured plaintiff's neck, back, and shoulders observed during his examinations were the sole result of the subject accident was speculative"]). To be sure, plaintiff's experts assert that certain percentages of the limitations in range of motion were "directly and causally related" to the June 2003 accident. But this assertion is conclusory, premised on an incomplete history of plaintiff's prior relevant injuries and is insufficient to raise a triable issue of fact (see Micciola v Sacchi, 36 AD3d 869, 871 [2007]; Gray v South Nassau Communities Hosp., 245 AD2d 337, 337 [1997]; see also Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002] ["Where the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation . . . the opinion should be given no probative force and is insufficient to withstand summary judgment"]).

In the Matter of Nova Casualty Company v. Martin

McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y.
(Barry L. Manus of counsel), for proposed additional respondent-appellant.
Lawrence N. Rogak, LLC, Oceanside, N.Y. (Renee A. Breitner of
counsel), for petitioner-respondent.

DECISION & ORDER

In a proceeding to permanently stay arbitration of a claim for uninsured motorist benefits, GMAC Insurance Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Balter, J.), dated September 24, 2007, as, in effect, granted that branch of the petition which was for a framed-issue hearing to determine whether there was insurance available through GMAC Insurance Company.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the petition which was for a framed-issue hearing to determine whether there was insurance available through GMAC Insurance Company is denied.

The petitioner's contention that there is no coverage under its policy's uninsured motorist provisions because the offending vehicle was, in fact, insured, is irrelevant to the issue of whether the instant proceeding pursuant to CPLR article 75 was timely commenced (see Matter of Steck [State Farm Ins. Co.], 89 NY2d 1082; Matter of Travelers Indem. Co. v Castro, 40 AD3d 1005, 1006-1007; Matter of Hartford Ins. Co. v Buonocore, 252 AD2d 500, 501). Such contention "relates to whether certain conditions of the contract have been complied with and not whether the parties have agreed to arbitrate" and, thus, the petitioner's contention is outside the exception articulated by the Court of Appeals in Matter of Matarasso (Continental Cas. Co.) (56 NY2d 264) (Matter of Steck [State Farm Ins. Co.], 89 NY2d 1082, 1084; see Matter of Hartford Ins. Co. v Buonocore, 252 AD2d 500, 501).

Since the petition to stay arbitration of the demand was made well beyond the 20-day period set forth in CPLR 7503 (c), and the exception set forth in Matter of Matarasso does not apply,  the Supreme Court should not have, in effect, granted that branch of the petition which was for a framed-issue hearing to determine whether there was insurance available through GMAC Insurance Company. Rather, the proceeding should have been dismissed in its entirety (see Matter of Travelers Indem. Co. v Castro, 40 AD3d 1005, 1007; Matter of Hartford Ins. Co. v Buonocore, 252 AD2d 500, 501).

Rose v. City of New Rochelle

Gary M. Gash, New York, N.Y. (Pollack Pollack Isaac & De Cicco
[Brian J. Isaac] of counsel), for plaintiff-respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Joe G. Metzger and Florence Metzger appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), entered August 3, 2007, as denied their cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

The appellants' proof failed to eliminate all issues of fact as to whether, as a result of the subject motor vehicle accident, the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d), and thus failed to make a prima facie showing that the appellants were entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). Under these circumstances, it is not necessary to consider the sufficiency of the plaintiff's opposition papers (see Tchjevskaia v Chase, 15 AD3d 389).

Sainval v. City of New York

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela
Seider Dolgow and John Hogrogian of counsel), for appellant City
of New York.
Krez & Peisner, New York, N.Y. (Edwin H. Knauer of counsel),
for appellant Verizon New York, Inc.,
s/h/a Nynex.
Cullen & Dykman, LLP, Brooklyn, N.Y. (Patrick Neglia and
Joseph Delfino of counsel), for appellant
Brooklyn Union Gas Company.
L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y.
(Peter L. Contini and Claudia P. Lovas
of counsel), for appellant S. DiFazio &
Sons Construction Co.
Subin Associates, LLP, New York, N.Y. (Brooke Lombardi of
counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants separately appeal from an order of the Supreme Court, Kings County (Battaglia, J.), dated July 11, 2007, which granted the plaintiff's motion to restore this action to active status.

ORDERED that the order is reversed, on the law, and the plaintiff's motion to restore this action to active status is denied, with one bill of costs payable by the plaintiff to the defendants appearing separately and filing separate briefs.

The plaintiff alleged that on August 5, 1995, he sustained serious injuries when the vehicle he was operating struck a large pothole on Jefferson Avenue near Ralph Avenue in Brooklyn. After joinder of issue, the defendants Brooklyn Union Gas Company (hereinafter Brooklyn Union) and S. DiFazio & Sons Construction Company (hereinafter DiFazio) separately moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. In an order dated October 29, 2002 (hereinafter the 2002 order), the Supreme Court (1) marked Brooklyn Union's motion "off" the calendar because of the failure of Brooklyn Union and the plaintiff to appear on the return date of the motion, (2) granted, upon the plaintiff's default in submitting opposition, that branch of DiFazio's motion which was for summary judgment dismissing the complaint insofar as asserted against it on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102, and (3), in effect, searched the record and directed that the "plaintiff's complaint and all cross claims are dismissed as to all remaining codefendants since plaintiff did not sustain [a] serious injury pursuant to [Insurance Law § ] 5102." Shortly after the July 2003 service upon the plaintiff of a copy of the 2002 order, with notice of entry, the plaintiff moved to vacate that order. The Supreme Court denied the motion, without prejudice, on the ground that a stay was in effect with respect to any actions against DiFazio until December 13, 2003, because of the liquidation of DiFazio's insurance carrier. Upon expiration of that stay, the plaintiff did not renew the motion to vacate. Instead, four years later, in 2007, the plaintiff, through new counsel, moved to restore the action to active status, a motion which the Supreme Court granted. We reverse.

The doctrine of res judicata provides that "as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action" (Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485; see Ryan v New York Tel. Co., 62 NY2d 494, 500; Burch v Trustees of Freeholders & Commonalty of Town of Southampton, 47 AD3d 654, 657; Barbieri v Bridge Funding, 5 AD3d 414, 415). This doctrine is premised on the notion that "a limit should be prescribed to litigation, and that the same cause of action ought not to be brought twice to a final determination" (Ryan v New York Tel. Co., 62 NY2d at 500 [internal quotations omitted]; see O'Brien v City of Syracuse, 54 NY2d 353, 357; Matter of Sandhu v Mercy Med. Ctr., 35 AD3d 479).

Here, the second decretal paragraph of the 2002 order granted, upon the plaintiff's default, that branch of DiFazio's motion which was for summary judgment dismissing the complaint and all cross claims asserted against it on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102, and, in effect, searched the record and directed the dismissal of the complaint and all cross claims insofar as asserted against the "remaining codefendants" on the ground that the plaintiff had failed to establish a serious injury as defined by Insurance Law § 5102. The Supreme Court's order constituted a determination that the plaintiff failed to raise a triable issue of fact as to whether he sustained a serious injury. Restoring the matter would allow the plaintiff, in contravention of the doctrine of res judicata, to relitigate the issue of whether he sustained a serious injury within the meaning of Insurance Law § 5102. Accordingly, the plaintiff's motion should have been denied.

In light of our determination, we need not reach the defendants' remaining contentions.

Castrillon v. Oulabed

Michael A. Cervini, Jackson Heights, N.Y. (Jonathan B. Seplowe
of counsel), for appellants.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Michael I. Josephs of counsel), for
respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Nelson, J.), dated January 28, 2008, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Juan Carlos Castrillon 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 Juan Carlos Castrillon (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs' submissions either did not constitute competent medical evidence in admissible form (see Grasso v Angerami, 79 NY2d 813, 814-815; Pagano v Kingsbury, 182 AD2d 268, 270), or otherwise failed to establish that the injured plaintiff sustained a serious injury under any statutory definition of the term (see Eldrainy v Hassain,AD3d, 2008 NY Slip Op 08449 [2d Dept 2008]; Krauer v Hines, 55 AD3d 881; Deutsch v Tenempaguay, 48 AD3d 614, 615). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.

Busljeta v. Plandome Leasing, Inc.

Corpina, Piergrossi, Overzat & Klar LLP (Pollack, Pollack, Isaac
& De Cicco, New York, N.Y. [Joseph B. Corpina and Brian J.
Isaac], of counsel), for appellants.
Law Office of Robert J. Adams, Jr., LLC, Garden City, N.Y.
(Maryellen David of counsel), for
respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (O'Connell, J.), dated August 27, 2007, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Annmary Busljeta did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and, in effect, denied, as academic, the plaintiffs' cross motion for summary judgment on the issue of liability.

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

The defendants failed to meet their prima facie burden of showing that the plaintiff Annmary Busljeta (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants' neurologist failed to explain or substantiate, with any objective medical evidence, the basis for his conclusion that the restrictions in cervical motion that were noted as part of his qualitative assessment were self-imposed (see Toure v Avis Rent A Car Sys., 98 NY2d 345; cf. Gonzales v Fiallo, 47 AD3d 760; Style v Joseph, 32 AD3d 212). Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

In light of our determination that the defendants' motion for summary judgment should have been denied, we remit the matter to the Supreme Court, Nassau County, for a determination of the cross motion on the merits (see e.g. Scavuzzo v City of New York, 47 AD3d 793, 795).

American Transit Insurance Company v. Rechev of Brooklyn, Inc.

Kagan & Gertel, Brooklyn (Irving Gertel of counsel), for
appellant.
Marjorie E. Bornes, New York, for respondent.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered August 1, 2007, which granted plaintiff insurer's motion for summary judgment declaring that it has no duty to defend and indemnify defendants insureds in an underlying personal injury action brought by defendant-appellant, and denied appellant's cross motion for summary judgment directing plaintiff to satisfy the judgment in the underlying action, affirmed, without costs.

Although appellant had provided plaintiff with information about the accident shortly after it occurred, in compliance with the policy, she failed to give plaintiff notice of her suit against its insureds until 14 months after the suit was commenced and she had obtained an order for a default judgment. Plaintiff having thus lost its right to appear and interpose an answer, its
disclaimer of coverage was proper (see Insurance Law § 3420(a)(3); American Tr. Ins. Co. v B.O. Astra Mgt. Corp., 39 AD3d 432 [2007], lv denied 9 NY3d 802 [2007]).

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

McGUIRE, J. (concurring)

I agree with the majority's implicit conclusion that plaintiff insurer American Transit Insurance Co. (ATIC) was required to show that it was prejudiced by the failure of defendant Klausner, the plaintiff in the underlying personal injury action, to provide timely notice to ATIC of the action she had commenced against ATIC's insured. I write separately because I believe we should explain that conclusion, especially in light of decisions by this Court and the Second Department that appear to support a different conclusion.

Although ATIC did not receive timely notice of the action from Klausner, it did receive timely notice of the accident, as is evinced by the letter it sent to Klausner less than two months after the accident requesting that she complete a form providing information about the accident and her injuries. Indeed, ATIC conceded in its reply papers that it had received timely notice of the accident. Moreover, that letter addresses Klausner as "Claimant." According to Klausner's submission opposing ATIC's motion for summary judgment, she completed and returned the form, and her attorney thereafter provided medical reports and records to ATIC and engaged in settlement discussions with ATIC. ATIC did not dispute these assertions in its reply papers.

In Argo Corp. v Greater N.Y. Mut. Ins. Co. (4 NY3d 332, 340 [2005]), the Court of Appeals held that a commercial liability insurer "was not required to show prejudice before declining coverage for late notice of lawsuit." The Court stressed in its opinion, however, that the carrier also had not received timely notice of claim (id. at 339-340). As the Court of Appeals noted in Argo, "[i]n Matter of Brandon (Nationwide Mut. Ins. Co.) (97 NY2d 491 [2002]), we again departed from the general no-prejudice rule and held that the carrier must show prejudice before disclaiming based on late notice of a lawsuit in the SUM [supplementary underinsured motorist] context" (4 NY3d at 339). In Rekemeyer v State Farm Mut. Auto. Ins. Co. (4 NY3d 468 [2005]), the plaintiff in a declaratory judgment action against her insurance carrier "did not submit notice of her SUM claim as soon as practicable" (id. at 474). Although the notice of claim was untimely, the Court accepted the plaintiff's argument that the Court should "relax its application of the no-prejudice rule in SUM cases where the carrier has been timely put on notice of the accident" (id.).

Because this case is not one involving SUM coverage, Klausner cannot maintain that Matter of Brandon and Rekemeyer require relaxation of the no-prejudice rule. Indeed, Rekemeyer arguably supports the opposite conclusion: timely notice of the accident should not lead to relaxation of the no-prejudice rule because this is not a SUM case. Moreover, the proposition that ATIC was required to show that it was prejudiced by Klausner's failure to give timely notice of her suit against ATIC's insured is at least called into question by our recent decision in 1700 Broadway Co. v Greater N.Y. Mut. Ins. Co. (54 AD3d 593 [2008]). In 1700 Broadway, the insured did not give notice to the commercial general liability insurer of the underlying personal injury action against the insured until eight months after the insured was served with the summons and complaint. This Court held that the unexplained delay "constituted late notice as a matter of law" and that the insurer "was not required to demonstrate prejudice by reason of the delay in order to disclaim coverage" (id. at 593-594). Although nothing in this Court's opinion suggests that the insurer had received timely notice either of the occurrence or of the claim, nothing in the opinion suggests that whether either notice had been given in timely fashion was relevant to the holding. Moreover, the Second Department has held that an insurer validly disclaimed coverage on the ground of untimely notice of the underlying personal injury action against its insured even though the insurer had received written notice of the accident one month after the accident and one of the plaintiffs in the personal injury action had sought no-fault benefits from the insurer not later than three and one-half months after the accident (Matter of GEICO Co. v Wingo, 36 AD3d 908 [2007]).

As the majority indicates, this appeal is controlled by our decision in American Transit Ins. Co. v B.O. Astra Mgt. Corp (39 AD3d 432 [2007], lv denied 9 NY3d 802 [2007]). Consistent with the emphasis the Court of Appeals placed in Argo on the fact that the carrier had not received timely notice of claim, this Court held that "[h]aving received timely notice of claim, plaintiff insurer was not entitled to disclaim coverage based on untimely notice of the claimant's commencement of litigation unless it was prejudiced by the late notice" (id. at 432). This case is a fortiori to B.O. Astra, because ATIC received both timely notice of the accident and timely notice of Klausner's claim.

The majority's analysis premises the propriety of the disclaimer of coverage on ATIC "having ... lost its right to appear and interpose an answer." For this reason, and because the majority goes on to cite B.O. Astra, it appears that the majority has concluded, albeit implicitly, that ATIC was required to show prejudice. As stated above, I agree that B.O. Astra requires that conclusion. Unquestionably, moreover, ATIC was prejudiced by Klausner's failure to provide notice until after she had obtained a default judgment. As Justice Lehner observed in his written decision granting ATIC's motion for summary judgment, although ATIC "could ... have applied to vacate the default ... on the part of its insured, it is far from clear whether such a motion would be granted, and it could be prejudicial to [ATIC's] rights to require it to appear for its insured under such circumstances." I would add only — I doubt Justice Lehner meant to suggest otherwise — that it is prejudicial to ATIC's rights to require it to shoulder the burden of moving to vacate the default.

Finally, there is no merit to Klausner's argument that ATIC's disclaimer is really a disclaimer for failure to cooperate. Although an insurer can disclaim on account of its insured's failure to cooperate in the handling of a claim, ATIC disclaimed on the distinct ground of lack of timely notice of the underlying action. The requirement of timely notice of that action is a condition precedent to ATIC's liability (American Tr. Ins. Co. v Sartor, 3 NY3d 71, 76 [2004]), and Klausner failed to exercise her independent right to fulfill this policy obligation (id. ["the Legislature has given an injured party the statutory right to fulfill this policy obligation [of timely notice] by allowing any necessary notification to be issued by the claimant"]).

Ayala v. Douglas

Rivkin Radler LLP, Uniondale (Melissa M. Murphy of counsel),
for appellant.
Levine & Blit, PLLC, New York (Leslie J. Levine of counsel),
for respondents.

Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered July 30, 2007, which denied defendant's motion for summary judgment dismissing the complaint on the ground that the infant plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and granted plaintiffs' cross motion for summary judgment on the issue of liability, unanimously modified, on the law, to grant defendant's motion to the extent of dismissing the infant plaintiff's 90/180-day claim, and otherwise affirmed, without costs.

Defendant established prima facie that the infant plaintiff did not sustain a serious injury (see e.g. Nagbe v Minigreen Hacking Group, 22 AD3d 326 [2005]). She submitted an orthopedic surgeon's findings on examination that plaintiff's sprains of the cervical, thoracic and lumbar spine and left knee had resolved and a radiologist's findings that MRIs of plaintiff's lumbar spine showed degenerative changes manifested by disc hydration, disc space narrowing and a mild annular bulge and that the MRI of plaintiff's left knee showed intact lateral menisci and no abnormalities.

In opposition, plaintiffs raised a triable issue of fact by providing objective evidence of a permanent disability causally related to the accident (see e.g. Engles v Claude, 39 AD3d 357 [2007]). They submitted an affidavit by a physician who diagnosed a herniated disc and derangement of plaintiff's left knee, quantified limitations in the ranges of motion of the lumbar spine and left knee, and opined that the injuries were causally related to the accident, and a radiologist's report that the MRI of plaintiff's left knee showed a tear of the medial meniscus, the MRI of his cervical spine showed straightening of the normal lordosis, and the MRI of his lumbar spine revealed disc herniation. Although unsworn, plaintiff's radiologist's reports were properly considered, because they were reviewed by defendant's expert in reaching his conclusion (see id.).

Plaintiffs did not, however, raise an inference that a "medically determined" injury or impairment prevented plaintiff from performing substantially all his usual and customary daily activities for at least 90 of the first 180 days following the accident (see e.g. Prestol v McKissock, 50 AD3d 600, 601 [2008]). The only evidence as to this claim is plaintiff's testimony that he returned to school after three weeks and that he was unable to participate in gym and sports for some time.

In his testimony and affidavit, plaintiff stated that he was crossing the street with the light and looked in both directions before stepping off the curb into the crosswalk, where he was struck by defendant's car. In opposition to plaintiffs' cross motion for summary judgment on the issue of liability, defendant submitted only an affirmation by her counsel, who had no personal knowledge of the facts (see Diaz v New York City Tr. Auth., 12 AD3d 316 [2004]).

Danvers v. New York City Transit Authority

Steve S. Efron, New York, for appellants-respondents.
Rubert & Gross, P.C., New York (Soledad Rubert of counsel),
for respondent-appellant.

Judgment, Supreme Court, Bronx County (Alan J. Saks, J., and a jury), entered June 14, 2007, awarding damages for personal injuries and bringing up for review, inter alia, the denial of defendants' motion at the close of evidence for judgment as a matter of law, unanimously reversed, on the law, without costs, defendants' motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

Plaintiff failed to make out a prima facie case of serious injury under either a quantitative or qualitative analysis (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]). Concerning her lumbar spine, while plaintiff submitted evidence of herniated and bulging discs and a history of pain, an objective assessment of her range-of-motion limitations was not made until more than five years after the accident, too remote to permit an inference that her limitations were caused by the accident (see Medina v Medina, 49 AD3d 335 [2008]). Concerning her ankle, the arthroscopic surgery performed eight months after the accident to repair a partially torn ligament and a history of pain do not by themselves establish a serious injury (see O'Bradovich v Mrijaj, 35 AD3d 274 [2006]), and, once again, the only objective evidence of range-of-motion limitations was produced by tests too remote in time from the accident to permit an inference that plaintiff's present limitations were caused by the accident. In any event, plaintiff's evidence reveals an unexplained gap of two years and nine months in her primary physician's treatment, negating any showing of serious injury (see Otero v 971 Only U, Inc., 36 AD3d 430 [2007]).

Rivera v. Super Star Leasing, Inc.

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

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered February 20, 2008, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants, through the affirmed reports of a radiologist, orthopedic surgeon and neurologist, made a prima facie showing of entitlement to summary judgment regarding plaintiff's claim of serious injury on the theory of "permanent consequential limitation of use of a body organ or member" (Insurance Law § 5102[d]).

However, plaintiff's expert raised a triable issue of fact on this theory of serious injury. Plaintiff's expert, who reviewed the relevant medical records and examined plaintiff as recently as September 2007, provided both quantitative and qualitative range of motion limitations in his report. He opined that plaintiff's symptoms were caused by the accident, and concluded that plaintiff had sustained permanent consequential limitation of use of his cervical and lumbar spine and right shoulder (see Garner v Tong, 27 AD3d 401 [2006]; Gonzalez v Vasquez, 301 AD2d 438 [2003]). To the extent the expert incorporated into his affirmation several unsworn reports of other doctors who examined plaintiff, these unsworn reports were not the only evidence submitted by plaintiff in opposition to the motion, and may be considered to deny a motion for summary judgment (see e.g. Largotta v Recife Realty Co., 254 AD2d 225 [1998]).

Furthermore, the motion court properly concluded that defendants failed to demonstrate a prima facie entitlement to summary judgment on plaintiff's 90/180-day claim. Defendants' experts did not examine plaintiff until approximately two years after the accident and could offer no conclusions regarding plaintiff's condition in the 180 days following the accident (see Loesburg v Jovanovic, 264 AD2d 301 [1999]).

We have considered defendants' remaining arguments and find them unavailing.

GILLIES v NATIONAL FIRE INSURANCE COMPANY OF HARTFORD

Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered September 5, 2007. The order granted the motion of defendant to dismiss the complaint and denied plaintiff's cross motion for summary judgment.


COHEN & LOMBARDO, P.C., BUFFALO (RICHARD N. BLEWETT OF COUNSEL), FOR PLAINTIFF-APPELLANT.
BROWN & KELLY, LLP, BUFFALO (FREDERICK D. TURNER OF COUNSEL), FOR DEFENDANT-RESPONDENT.


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

Memorandum: Plaintiff was injured in a motor vehicle accident and obtained a judgment of $1.3 million against Consolidated Freightways Corporation of Delaware (CFC). At the time of the accident, CFC was insured under a commercial lines automobile insurance policy issued by Reliance National Indemnity Company (Reliance). That policy included a $3 million deductible per accident. CFC and Reliance entered into a Deductible Reimbursement Agreement (Agreement) providing that CFC would reimburse Reliance for any payments made by Reliance within the deductible amount, and requiring CFC to provide security for its reimbursement obligation. To fulfill that requirement, CFC obtained a Deductible Reimbursement Security Bond (Bond) from defendant.

At the time plaintiff obtained her judgment against CFC in the amount of $1.3 million, CFC and Reliance were insolvent, and plaintiff filed claims in CFC's bankruptcy proceeding and Reliance's liquidation proceeding. Plaintiff thereafter commenced this action seeking, inter alia, a determination that defendant has an obligation under the Bond to satisfy the judgment obtained in the personal injury action and awarding plaintiff the amount of that judgment. Supreme Court properly granted defendant's motion to dismiss the complaint for failure to state a cause of action and denied plaintiff's cross motion for summary judgment.

"[S]urety bonds, like all contracts, are to be fairly construed so as to effectuate the intent of the parties as it has been expressed in the terms of the contract" (First Natl. Bank of Waterloo v Story, 163 App Div 279, 282, affd 222 NY 562). Here, the Bond expressly states that "[n]o right of action shall accrue to other than the named Obligee [in this case, Reliance] and its successors and assigns," and nothing in the Bond or Agreement indicates an intent to benefit third parties such as plaintiff (see BIB Constr. Co. v Fireman's Ins. Co. of Newark, N.J., 214 AD2d 521, 524; Town of Southeast v Seaboard Sur. Co., 208 AD2d 520, appeal dismissed 87 NY2d 860). Contrary to the contentions of plaintiff, moreover, neither the Motor Vehicle Financial Security Act (Vehicle and Traffic Law art 6), Insurance Law § 3420 nor public policy considerations mandate a right of action in her favor to recover under the Bond. Finally, we reject plaintiff's contention that defendant's motion should have been denied as premature. "[P]laintiff has not established that additional discovery would disclose facts essential to justify opposition' to defendant's motion" (Bouley v Bouley, 19 AD3d 1049, 1051, quoting CPLR 3211 [d]).

Flederbach v Fayman

Tinari, O'Connell, Osborn & Kaufman, LLP, Central Islip, N.Y.
(Frank A. Tinari of counsel), for appellants.
Zaklukiewicz Puzo & Morrissey, LLP, Islip Terrace, N.Y.
(Aileen R. Kavanagh of counsel), for
nonparty-respondents.


DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Emerson, J.), dated June 1, 2007, which denied their motion for leave to serve a supplemental summons and amended complaint adding Chase Manhattan Automotive Finance Corp. and Chase Auto Finance Corp. as party defendants.

ORDERED that the order is affirmed, without costs or disbursements.

The plaintiff Wendy Flederbach was injured in an accident with a vehicle operated by the defendant Yvacheslav Fayman. The police accident report identified the owner of the offending vehicle as Irina Fayman, who also was named as a defendant in this action to recover damages for personal injuries brought by Flederbach and her husband, derivatively. At his deposition conducted more than three years after the accident, Yvacheslav Fayman testified that he leased the offending vehicle from Chase Manhattan Automotive Finance Corp., now known as Chase Auto Finance Corp. (hereinafter together Chase).

The plaintiffs moved for leave to serve a supplemental summons and amended complaint adding Chase as defendant to the action, contending, inter alia, that the claim against Chase related back to the timely-asserted claim against the operator of the offending vehicle, with whom Chase was united in interest. The motion was denied based upon this Court's holding in Jones v Bill (34 AD3d 741), because, although this action was commenced prior to the enactment of 49 USC § 30106 (the Graves Amendment), which abolished vicarious liability of automobile lessors for the negligence of the operators of leased vehicles in actions commenced after its enactment on August 10, 2005, the motion for leave to serve a supplemental summons and amended complaint adding Chase as a defendant was made after the August 10, 2005, effective date. Thereafter, however, Jones v Bill (34 AD3d 741) was reversed by the Court of Appeals, which held that the Graves Amendment only applies to actions commenced by the filing of the initial summons and complaint after its enactment date, and did not bar vicarious liability claims against vehicle lessors asserted in an amended pleading in an action commenced prior to its effective date (see Jones v Bill, 10 NY3d 550).

The plaintiffs are correct, therefore, that their motion is not barred by the Graves Amendment, since this action was commenced prior to the effective date of that statute. Nonetheless, we affirm the order denying the motion, on the ground that the claim against Chase is barred by the statute of limitations. The plaintiffs argue that the claim against Chase relates back to the timely- commenced action against the operator of the offending vehicle. However, the plaintiffs failed to meet their burden of proving that the relation-back doctrine is applicable, since there is no evidence that Chase knew or should have known that, but for a mistake on the part of the plaintiff, it would have been named in the action as well (see Buran v Coupal, 87 NY2d 173). Indeed, there is no evidence that Chase was aware of the accident, much less the lawsuit, within the limitations period (see Williams v Majewski, 291 AD2d 816; compare Porter v Annabi, 38 AD3d 869). Since notice within the limitations period is "the 'linchpin' of the relation back doctrine" (Buran v Coupal, 87 NY2d 173, 180), the denial of the plaintiffs' motion for leave to serve a supplemental summons and amended complaint adding Chase as a defendant to the action was correct.
SKELOS, J.P., LIFSON, SANTUCCI and CARNI, JJ., concur.

ENTER:

Gassman v Metropolitan Life Insurance Company, et al.,

Hyman Clurfeld, P.C., Garden City, N.Y., for appellants.
d'Arcambal Levine & Ousley LLP, New York, N.Y. (Aimee P.
Levine of counsel), for respondent
Metropolitan Life Insurance Company.
McCormick Dunne & Foley, New York, N.Y. (Christopher P.
Foley of counsel), for respondent
United States Life Insurance Company
in the City of New York.
Piken & Piken, New York, N.Y. (Robert W. Piken pro se of
counsel), for respondents Arthur
Rothlein, individually and conducting
business under the names A R Agency and
Arthur Rothlein Agency, and Arthur
Rothlein Agency, Inc., and for
third-party defendant Robert W. Piken.


DECISION & ORDER

In an action, inter alia, to recover damages for breach of an insurance contract, the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (Woodard, J.), entered April 18, 2007, which, upon converting the motion of the defendant United States Life Insurance Company in the City of New York pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against it into a motion for summary judgment dismissing the complaint insofar as asserted against it, granted the motion (2), as limited by their brief, from so much of an order of the same court entered December 21, 2007, as granted those branches of the motion of the defendants Arthur Rothlein, individually and conducting business as A R Agency and Arthur Rothlein Agency, and Arthur Rothlein Agency, Inc., which were for summary judgment dismissing the third and fourth causes of action insofar as asserted against them, granted the separate motion of the defendant Metropolitan Life Insurance Company for summary judgment dismissing the third and fourth causes of action insofar as asserted against it and for leave to amend its answer, denied that branch of their cross motion which was for leave to amend the complaint, sua sponte, directed a hearing to determine the applicability of Insurance Law § 3214, and, upon reargument, in effect, adhered to its prior determination in the order entered April 18, 2007, granting the converted motion of the defendant United States Life Insurance Company in the City of New York for summary judgment dismissing the complaint insofar as asserted against it, and (3), as limited by their brief, from so much of an order of the same court entered January 11, 2008, as denied their motion for summary judgment on the fifth and sixth causes of action, insofar as asserted against the defendants United States Life Insurance Company in the City of New York, Arthur Rothlein, individually and conducting business under the names A R Agency and Arthur Rothlein Agency, and Arthur Rothlein Agency, Inc.

ORDERED that the appeal from the order entered April 18, 2007, is dismissed, as that order was superseded by so much of the order entered December 21, 2007, as was made upon reargument; and it is further,

ORDERED that on the Court's own motion, the notice of appeal from so much of the order entered December 21, 2007, as, sua sponte, directed a hearing to determine the applicability of Insurance Law § 3214 is treated as an application for leave to appeal, and leave is granted (see CPLR 5701[c]); and it is further,

ORDERED that the order entered December 21, 2007, is modified, on the law (1), by deleting the provisions thereof granting those branches of the motion of the defendants Arthur Rothlein, individually and conducting business under the names A R Agency and Arthur Rothlein Agency, and Arthur Rothlein Agency, Inc., which were for summary judgment dismissing the third and fourth causes of action insofar as asserted against them and substituting therefor provisions denying those branches of the motion and (2) by deleting the provision thereof, sua sponte, directing a hearing on the applicability of Insurance Law § 3214; as so modified, the order entered December 21, 2007, is affirmed insofar as appealed from, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith; and it is further,

ORDERED that the order entered January 11, 2008, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendants United States Life Insurance Company in the City of New York and Metropolitan Life Insurance Company, payable by the plaintiffs.

The Supreme Court erred in awarding summary judgment dismissing the third and fourth causes of action insofar as asserted against the defendants Arthur Rothlein, individually and conducting business under the names A R Agency and Arthur Rothlein Agency, and Arthur Rothlein Agency, Inc. (hereinafter collectively the Rothlein defendants). The Rothlein defendants failed to make a prima facie showing of entitlement to judgment as a matter of law (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Furthermore, contrary to the contention of the Rothlein defendants, the doctrine of law of the case did not apply to the determination awarding summary judgment dismissing the third and fourth causes of action insofar as asserted against them since the issue of their liability had not been previously judicially determined (see United States v United States Smelting Refining & Min. Co., 339 US 186, 198; Martin v City of Cohoes, 37 NY2d 162, 165).

Furthermore, the plaintiffs are correct that the Supreme Court erred in, sua sponte, directing a hearing on the applicability of Insurance Law § 3214. Pursuant to the express terms of Insurance Law § 3214, interest upon the proceeds of a life insurance policy, such as the one at bar, "shall be paid from the date of the death of the insured . . . pursuant to the provisions of subsection c." Subsection c of that section specifically provides that "interest upon the principal sum paid to the beneficiary or policyholder shall be computed daily at the rate of interest currently paid by the insurer on proceeds left under the interest settlement option, from the date of the death of an insured or annuitant in connection with a death claim on such a policy of life insurance . . . and shall be added to and be a part of the total sum paid" (see Chipetine v William Penn Life Ins. Co., 227 AD2d 216). Based upon the facts of the instant case, the plaintiffs were entitled to interest computed under the interest settlement option contained in the insurance policy assumed by the defendant Metropolitan Life Insurance Company and not the statutory rate of interest for the prejudgment period. No hearing was required. Thus, the matter must be remitted to the Supreme Court, Nassau County, for a calculation of the interest payable to the plaintiffs.

The plaintiffs' remaining contentions are without merit.
RIVERA, J.P., LIFSON, ENG and CHAMBERS, JJ., concur.

Schiffman v Hann Auto Trust

Lewis Johs Avallone Aviles & Kaufman, LLP, Melville, N.Y.
(Elizabeth A. Fitzpatrick of counsel), for appellant-respondent.
Bee Ready Fishbein Hatter & Donovan, LLP, Mineola, N.Y.
(Robert M. Conti of counsel), for
respondents-appellants.

DECISION & ORDER

In an action to recover damages for personal injuries, (1) the defendant Lawrence H. Schiffman appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Palmieri, J.), entered June 2, 2006, as conditionally granted the motion of the defendants Hann Auto Trust and Hann Financial Services Corporation for summary judgment on their cross claim against him for contractual indemnification, and the defendants Hann Auto Trust and Hann Financial Services Corporation cross-appeal, as limited by their notice of appeal and brief, from so much of the same order as limited their recovery on the cross claim to an amount in excess of the minimum amount of liability insurance required to be carried by law, and (2) the defendants Hann Auto Trust and Hann Financial Services Corporation appeal from a judgment of the same court (Brandveen, J.), dated January 3, 2007, which, upon a jury verdict, is in favor of the plaintiff and against them in the principal sum of $650,000.

ORDERED that the appeal from the judgment is dismissed as abandoned; and it is further,

ORDERED that the order entered June 2, 2006, is reversed insofar as appealed and cross-appealed from, on the law, the motion of the defendants Hann Auto Trust and Hann Financial Services Corporation for summary judgment on their cross claim against the defendant Lawrence H. Schiffman for contractual indemnification is denied, the cross claim is severed, and the matter is remitted for further proceedings in accordance herewith; and it is further,

ORDERED that one bill of costs is awarded to the defendant Lawrence H. Schiffman payable by the defendants Hann Auto Trust and Hann Financial Services Corporation.

The defendant Lawrence H. Schiffman (hereinafter the appellant) leased a vehicle from Penn Toyota, LTD, which assigned the lease to the defendant Hann Auto Trust and/or the defendant Hann Financial Services Corporation (hereinafter together Hann). Subsequently, Daniel Schiffman, the appellant's son, was involved in an accident while using the vehicle with the appellant's permission. The plaintiff, Bruria Schiffman, Daniel's wife and a passenger in the vehicle, was injured in the accident. The plaintiff commenced this action against the appellant and Hann, alleging that they were liable for her injuries pursuant to Vehicle and Traffic Law § 388. Hann asserted a cross claim against the appellant for contractual indemnification pursuant to a provision in the vehicle lease, and moved for summary judgment on its cross claim.

The Supreme Court should have denied Hann's motion for summary judgment on its cross claim for contractual indemnification. In opposition to Hann's prima facie showing of its entitlement to summary judgment on its cross claim, the appellant raised a triable issue of fact concerning whether the type size of the indemnification provision of the subject lease fails to meet the requirements of CPLR 4544 and is thus unenforceable (see CPLR 105[t]; Gulf Ins. Co. v Kanen, 13 AD3d 579, 580; Matter of Filippazzo v Garden State Brickface Co., 120 AD2d 663, 665).

On its cross appeal, Hann contends that because Vehicle and Traffic Law § 370(3), which requires those engaged in the business of renting or leasing "rental vehicles" to provide a minimum amount of primary insurance to their renters, does not apply to those engaged in the business of leasing "leased vehicles," the Supreme Court should not have limited Hann's recovery on its cross claim to an amount in excess of the minimum amount of liability insurance required to be carried by law (see Vehicle and Traffic Law §§ 121-d, 137-a; ELRAC, Inc. v Ward, 96 NY2d 58, 78). It cannot be determined on this record whether the subject vehicle was a "rental vehicle" within the meaning of Vehicle and Traffic Law § 370(3). Therefore, if the lease is found to meet the type-size requirements of CPLR 4544, thereby entitling Hann to recover on its cross claim for contractual indemnification, the Supreme Court shall hold a hearing to determine whether the subject vehicle was a "rental vehicle" within the meaning of Vehicle and Traffic Law § 370(3), and thus, whether Hann's recovery should be limited to an amount in excess of the minimum amount of liability insurance required by that statute (see ELRAC, Inc. v Ward, 96 NY2d at 78).

The parties' remaining contentions are without merit.
SKELOS, J.P., SANTUCCI, BALKIN and CHAMBERS, JJ., concur.