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Coverage Pointers - Volume X, No. 13

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Dear Coverage Pointers Subscribers:

 

679 and 0 and 3.  More later

 

Merry Christmas, Happy Chanukah and best wishes for the New Year from your Coverage Pointers team.  Let us hope that the New Year brings peace to the world, health to our families and stability and strength to our economy.

 

A special thanks to those who suggested titles for my section of the newsletter - there were a couple of great suggestions.  We'll try out Kohane's Coverage Corner, a suggestion of our good friend Phil Fortino, counsel to New York Central Mutual.

 

The Year in Review and the Status of New York Bad Faith

 

We'll get there, the long way.  First, let's put the year 2008 in perspective by comparing it to last year.

 

In last year's final issue, we had dusted off the abacus and counted the number of cases we reviewed in 2007.  The numbers: 651 and 1.   I had reported on 276 decision summaries in my Coverage Pointers columns, there had been 226 "serious injury" cases and Audrey gave angles on 123 No Fault arbitration and litigation decisions.  In addition to those, Steve reviewed about 26 first party (and other miscellaneous) cases.  All in all, in the calendar year 2007, Coverage Pointers has reviewed some 651 New York appellate decisions in 2007 and of those, in only ONE, did an appellate court allow a bad faith case against a liability carrier, seeking damages beyond the coverage limits, to go forward?  In that February 2007 case, an appellate court permitted discovery to proceed in a bad faith case.  There was not a single case where an appellate court affirmed an extra-contractual bad-faith verdict against a liability carrier.

 

So, how do these numbers compare for 2008?  This year we reported on 679 appellate coverage decisions, an increase of just over four percent.  I had an easy year, with an even 200 summaries.  Margo's Musings and her predecessor author Mark, reviewed 226 "serious injury" threshold cases.  Audrey was a mite busier with 176 appellate and arbitration awards covered in Audrey's Angles.  Steve about tripled his workload reviewing 77 in Peiper's Property and Potpourri column.  

 

And in these 679 appellate cases, how many New York Appellate Court decisions permitted a bad faith case to proceed against an insurer?  Well, technically none, but three were close enough to be troubling.  First, there were the February Court of Appeals companion decisions in Bi-Economy and Panasia.  These two permitted consequential damage claims to be pressed against insurers, although the Court claimed that these had little to do with bad faith.  You can read our summary of those two decisions in http://www.hurwitzfine.com/shownews.php?type=coverage&id=341 and their fallout, at the lower court level, continues.  Expect additional appellate decisions on the subject in the coming year. 

 

 The third troubling case was Elacqua II, reported in our June 13th issue. In that case, The Third Department held that a failure to advise an insured of its right to select “conflict counsel” (a.k.a. Cumis Counsel) constitutes a Deceptive Trade Practice subjecting a carrier to treble damages and attorneys fees. Elacqua has not yet been cited in any subsequent reported appellate or plenary court decision. You can find our summary of Elacqua here: http://www.hurwitzfine.com/shownews.php?type=coverage&id=351. Accordingly the count is 679 appellate decisions concerning insurance coverage, not a single one upholding a bad faith determination against a carrier but three permitting damages beyond the specific coverage set forth in the policy.

As we look back on 2008, we sense the aroma of extra-contractual litigation in the air, but so far, only that.

 

One Hundred Years Ago Today:

 

On the front page of the New York times today, we read about the state of the economy, stock fraud and the mortgage crisis.  A century ago, life was simpler:

 

New York Times

December 26, 1908

 

SHOOTS AT BIRDS, HITS WIFE.

Then Hohlub Goes to Jail Instead of

Eating Christmas Potpie

 

While shooting snow birds from his back bedroom window yesterday morning, William Hohlub of 81 Seventh Avenue, Astoria accidentally shot his wife Mary in the left arm.

 

The section in which Hohlub lives is sparsely settled. Scattering crumbs in his yard Hohlub lured flocks of birds to the place and from his point of vantage picked them off at will. He wanted to kill enough of them to make a Christmas pot pie and was rapidly getting them when his wife unexpectedly ventured out into the "game preserves" just as he fired. "Look out, Mary!" shouted Hohlub as he blasted away, but the warning was too late.  Mrs. Hohlub fell to the ground with a cry.

 

Dr. Hangarten of St. John's Hospital dressed the wound, and he (Hohlub) remained at Astoria Police Station, where he spent the greater part of the day locked up on a charge of reckless shooting.

 

Earl's Pearl: 

Earl Cantwell discusses the law of warranties in this week's Earl's Pearls column.  Thanks for the contribution.

 

Scott Duquin: The Duke of Lead

In the third part of his continuing series on lead paint, and perfectly timely after gift giving, is Scott's article that reviews the alternative sources of lead paint, often important for the defense of lead paint litigation involving homeowners claims.

 

One Hundred Years Ago Today:

 

An upstate paper wrote of a significant verdict in a local court:

 

Middletown Times Press
December 26, 1908


VERDICT IN COW CASE.

$65 for John B. Minard

The next case take up was that of John B. Minard against George N. Morrow. The suit was brought on a breach of contract, the plaintiff claims that he had not received the Holstein Friesian cow for which he had paid. The cow under dispute was known as Bonnie Bess II and was famed for her butter making records. The animal was registered in the office of the Holstein Association, and a certificate of the same went with the animal. There was considerable humor brought out in the case, as there invariably is. At the close of the case, Judge Mills was inclined to dispose of if without sending it to the jury but finally agreed to let the lawyers earn their money by talking a half hour each on the subject.  The jury brought in a verdict of $65 for the plaintiff.

And you wondered where the beef might be.

 

Happy New Year:

 

Let's ring out the old year with a wheelbarrow load of interesting decisions:

 

KOHANE'S COVERAGE CORNER
Dan D. Kohane

[email protected]

 

  • Carrier Not Precluded from Relitigating Adverse Coverage Decision where it was Not a Party
  • Outside Director Entitled to Some Portion of Directors & Officers Coverage Proceeds
  • Split Court Highlights Issues in "Reasonable Belief in Non-Liability" Defense
  • Printout Not Enough to Establish Cancellation

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

Margo M. Lagueras

[email protected]

 

  • Contemporaneous MRIs Showing Degenerative Process Support Summary Judgment
  • Report of Range-of-Motion Limitations Must Be Specifically Detailed
  • Experts' Conclusory Statements Are Insufficient to Defeat Summary Judgment
  • Case Fails Where Range-of-Motion Restrictions Are Reported 3 Years After Accident and After Surgery
  • Opposing Papers Are Not Considered if Issues of Fact Remain
  • Case Fails Where Range-of-Motion Restrictions Are Reported 5 Years After Accident 

AUDREY'S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

 

  • EMG/NCV Testing on Pregnant Woman to Recommend Treatment Post Pregnancy Not Medically Necessary
  • Timely Denial on Intoxication Exclusion Upon Receipt of Additional Verification Precludes Summary Judgment 

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper

[email protected]

 

  • Service Via the Nail and Mail Upheld
  • Question of Fact as to Whether Counsel's Failure to Provide Timely Notice of a Claim Constituted Malpractice

Thanks for all your support and best wishes for the New Year.

 

Dan

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

 

 

Newsletter Editor

Dan D. Kohane

[email protected]

 

Insurance Coverage Team

Dan D. Kohane, Team Leader
[email protected]

Michael F. Perley

Audrey A. Seeley

Steven E. Peiper

Margo M. Lagueras

 

Fire, First-Party and Subrogation Team

Andrea Schillaci, Team Leader

[email protected]

Jody E. Briandi

Steven E. Peiper

 

NO-FAULT/UM/SUM TEAM

Audrey A. Seeley, Team Leader

[email protected]

Tasha Dandridge-Richburg

Margo M. Lagueras

 

APPELLATE TEAM

Jody E. Briandi, Team Leader

[email protected]

 Scott M. Duquin

 

Index to Special Columns

 

Kohane’s Coverage Corner

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

 

KOHANE’S COVERAGE CORNER

Dan D. Kohane

[email protected]

 

12/16/08          Gaston v. American Transit Insurance Company

New York State Court of Appeals

Carrier Not Precluded from Relitigating Adverse Coverage Decision where it was Not a Party

Two default judgments in underlying lawsuits resolved coverage case against carrier while one default judgment in another underlying lawsuit resolved coverage case in favor of insurer.  With that backdrop,  Court of Appeals held that insurer was allowed to reopen and relitigate the coverage question in a direct action [3420(d) lawsuit] commenced against it.
Editor’s Note:  Surely, an insurer should not be bound by a decision in a lawsuit where it has not been a party.  That should be the case even if the carrier had assigned defense counsel to the protect the interests of the insured in an underlying lawsuit and there was a decision adverse to the coverage interests of the insured.  Why?  Because there is nobody in the courtroom in that is arguing in favor of, or presenting proof supportive of, the separate coverage interests of the insurer.

 

12/18/08          Federal Insurance Company v. Tyco International Ltd.

Appellate Division, First Department
Outside Director Entitled to Some Portion of Directors & Officers Coverage Proceeds
Outside director violation of the Martin Act (Blue Sky law) did not bar his recovery of defense costs under the directors and officers’ liability insurance obtained by Tyco. In equitably distributing the policy proceeds, the court correctly found that the policy gives priority to the claims of "insured persons" over those of the insured corporation, properly considered the corporation's access to excess coverage, and properly declined to consider the order in which the insureds submitted their defense bills.


12/16/08         
Jaglon v. Insurance Company of Greater New York

Appellate Division, First Department
Split Court Highlights Issues in “Reasonable Belief in Non-Liability” Defense
Plaintiff sought a judgment that his carrier should defend him in a libel suit.  The insurer claimed that the insureds failed to give timely notice. Plaintiff responded to the motion by explaining that they did not provide notice to defendant until they were served with a summons and complaint, because until then they believed in good faith that they were not liable for defamation. The three judge majority concluded that there were questions of fact presented regarding the existence and the reasonableness of the insured's professed good-faith belief that the party that has since commenced the defamation action against them would not seek to hold the insured liable.

 

A strong (and we suggest well-considered) defense disagreed. There is no dispute that the plaintiffs waited a significant amount of time before notifying the defendant of the defamation claim. The question, argued the defense, is whether the insured learned of an occurrence that may result in the assertion of liability against the insured and had a reasonable "good-faith belief of nonliability" not whether the matter could be successfully defended.  Here the proof was clear that a claim was coming and accordingly, the notice should have been given.

 

12/11/08          In the Matter of Long Island Insurance Company v. MVAIC
Appellate Division, Second Department
Printout Not Enough to Establish Cancellation

Carrier’s computer print out of cancellation notice was not enough to establish that policy was actually canceled.  Insurer must provide additional proof, which should include affidavit describing cancellation process.

 

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

Margo M. Lagueras

[email protected]

 

12/23/08          Reyes v. Brito

Appellate Division, First Department

Contemporaneous MRIs Showing Degenerative Process Support Summary Judgment

The defendant submitted a neurological examination of the plaintiff that found no disabling injuries.  In addition, the MRIs taken around the time of the accident revealed that the abnormalities in the cervical and lumbar spine were the result of a degenerative process and not the accident.  In opposition, the plaintiff’s treating physician did not address the findings of pre-existing degeneration and therefore failed to show that the accident was the cause of a permanent consequential or significant limitation of use of a body function or system. 

 

12/18/08          Pinkhasov v. Weaver

Appellate Division, First Department

Report of Range-of-Motion Limitations Must Be Specifically Detailed

The affirmed reports of the defendants’ neurologist and orthopedist, who examined the plaintiff, his medical records, and performed detailed and objective tests, concluded that the plaintiff had full range-of-motion in his cervical and lumbar spine.  In opposition, the plaintiff submitted unsworn MRI reports and an affirmation from his medical expert which failed to detail his limitations with any specificity and, as such, provided no objective medical proof to support the claim of permanent injury.  In addition, the plaintiff’s claim under the 90/180 day category failed where the defendants submitted the plaintiff’s deposition testimony in which he stated he was only confined to bed for three to four days following the accident, and the plaintiff only offered subjective statements, without any objective medical evidence, in opposition.

 

12/18/08          Mitchell v. Atlantic Paratrans of NYC, Inc.

Appellate Division, First Department

Experts’ Conclusory Statements Are Insufficient to Defeat Summary Judgment

It was undisputed that the plaintiff had certain spinal defects, including scoliosis and spina bifida, both of which are congenital conditions.  On appeal, the defendants win a reversal, on the law, of the trial court’s denial of their motion for summary judgment where, in opposition to the defendants’ neurologist, the plaintiff’s experts only made conclusory statements, without the support of any probative evidence, that the plaintiff’s limitations were causally related to the accident.

 

12/16/08          Norme v. Ajons

Appellate Division, Second Department

Case Fails Where Range-of-Motion Restrictions Are Reported 3 Years After Accident and After Surgery

Here, the plaintiff was a pedestrian who was struck and thrown over the defendants’ car, hitting his right shoulder on the windshield.  The defendants appealed the denial of their motion dismissing the complaint but the court affirmed the decision noting that the defendants’ own medical expert found that the plaintiff’s range-of-motion in his right shoulder was significantly decreased even 3 years after the accident and after having undergone arthroscopic surgery, thus raising an issue of fact as to the permanence and severity of the injury.  This finding made consideration of the plaintiff’s physician’s affidavit unnecessary.

 

12/16/08          Cracolici v. Lassiter, and

12/09/08          Atan v. Fitzgerald

Appellate Division, Second Department

Opposing Papers Are Not Considered if Issues of Fact Remain

In both these cases the defendants appealed and lost again because they failed to make a prima facie showing to support summary judgment.  Because of their failure, the courts did not even consider the sufficiency of the plaintiffs’ opposing papers.

 

12/09/08          Akhtar v. Santos

Appellate Division, Second Department

Case Fails Where Range-of-Motion Restrictions Are Reported 5 Years After Accident

Here it is the plaintiffs that appeal and win a reversal where the defendant’s own orthopedic expert found range-of-motion restrictions in the plaintiff’s cervical and lumbar spines and left shoulder five years after the accident.  As such, the defendant failed to make her prima facie case and it is not necessary to consider the sufficiency of the plaintiff’s opposing papers.

 

AUDREY’S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

 

12/16/08          Matter of Arb. Applicant v. Respondent

Arbitrator Thomas J. McCorry

EMG/NCV Testing on Pregnant Woman to Recommend Treatment Post Pregnancy Not Medically Necessary

The Applicant, eligible injured person, was in her second trimester of pregnancy when she was involved in a motor vehicle accident.  She complained of intolerable leg pain and extreme low back pain.  After the accident, she back treating with a chiropractor, Mr. Ward, three times per week.  Mr. Ward could not recommend or perform an x-ray or MRI due to the Applicant’s pregnancy.  Instead he decided to conduct an EMG/NCV test.  Mr. Ward opined that the EMG/NCV test was medically necessary because he had made a diagnosis (which was not mentioned in the decision) and was waiting for the Applicant to give birth before sending her to the appropriate specialist for treatment. 

 

The insurer properly denied the bill for the EMG/NCV testing based upon a peer review that the assigned arbitrator found persuasive.  The arbitrator held that the testing was not medically necessary.  Further, he questioned why Mr. Ward would have subjected her to what has been described as a pain test during her pregnancy when she could not be treated immediately.

 

12/9/08            Westchester Med. Ctr. a/a/o Josh Logan v. Clarendon Natl. Ins. Co.

Appellate Division, Second Department

Timely Denial on Intoxication Exclusion Upon Receipt of Additional Verification Precludes Summary Judgment

Plaintiff’s summary judgment motion on the first cause of action should have been denied as the insurer raised a triable issue of fact by presenting evidence that it issued a timely denial based upon the intoxication exclusion within 30 days of receipt of additional verification.

 

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper

[email protected]

 

12/23/2008      Ayala v. Bassett

Appellate Division, First Department

Service Via the Nail and Mail Upheld

Plaintiff’s process server sought to personally serve defendant with the Summons and Complaint on three different occasions over a period of 22 days.  Importantly, the process server tried to reach plaintiff in the morning, the afternoon, and the evening, all of which were to no avail.  When its efforts at personal service failed, plaintiff resorted to the “nail and mail” provision of the CPLR. 

 

In holding that the plaintiff had made a prima facie showing of proper service, the First Department ruled that the burden then shifted to the defendant to come forward with evidence challenging plaintiff’s efforts.  Where defendant was unable to do so, the default was affirmed. 

 

12/16/2008      Fireman’s Fund Ins. Co. v. Farrell

Appellate Division, Second Department

Question of Fact as to Whether Counsel’s Failure to Provide Timely Notice of a Claim Constituted Malpractice

In this action, the injured party commenced a lawsuit against a property owner for damages he sustained when he fell from the property owner’s roof while in the course of construction work.  In response, the property owner commenced a third-party action against the injured party’s employer, Six G’s, seeking therein common law indemnification and/or contribution.  Unfortunately, Six G’s counsel, Mr. Farrell, failed to notify the workers’ compensation carrier, the State Fund, until more than 2 ½ years after the third-party action was commenced, and 1 year after partial summary judgment was granted.

 

Armed with this delay, the State Fund disclaimed on late notice.  However, to resolve the underlying claim, the State Fund contributed $400,000 to the settlement.  In addition, Six G’s also assigned a claim of malpractice against counsel to the owner/main-party defendant and its carrier, Fireman’s Fund.  Thereafter, Fireman’s Fund commenced the instant malpractice action seeking to recover the monies it paid in settling the underlying action. 

 

Defendant Farrell opposed the malpractice claim by arguing that even if the notice provided to the State Fund was not timely, the State Fund’s failure to issue a timely disclaimer resulted in the loss of the late notice defense pursuant to the Insurance Law.  In addition, Farrell also argued that the State Fund’s participation in settlement also resulted in the waiver of the late notice policy defense. 

 

The Second Department found a question of fact regarding whether the State Fund’s disclaimer was untimely, but largely acknowledged that if it were precluded from relying upon a breach of a condition as a result of a late disclaimer then Farrell would be shielded from malpractice.  Likewise, the Court also found a question of fact as to whether the State Fund waived its reliance upon a policy breach by participating in the underlying settlement. 

 

EARL’S PEARLS

Earl K. Cantwell, II
[email protected]

 

Price Check on Aisle 1:  Special Sale on the Law of Sales and Warranties

 

A recent case decided by the Second Department, Jesmer d/b/a First Americans Food Stores v. Retail Magic, Inc. and Auto-Star Compusystems, Inc., 55 A.D.3rd 171, 863 N.Y.S.2d 737 (2nd Dept. September 9, 2008) recently encountered a case where the Uniform Commercial Code, common law of sales, and a faulty computer system combined for a tossed salad of tangled legalese.  Essentially the plaintiff grocery store, a dissatisfied end-user of the computer system, sought to sue the manufacturer and an authorized dealer on UCC and common law theories including breach of express and implied warranties. 

 

The grocery shopping trip started innocently enough when the plaintiff (First Americans) decided to upgrade its cash registers and accounting system by purchasing a “state of the art” point of sale (POS) computer system.  They dealt with Auto-Star Compusystems, a developer of POS systems and software for grocery stores with its principal office located in the iconic city of Medicine Hat, Alberta, Canada, and Retail Magic, Inc. an authorized Auto-Star distributor.  The plaintiff, an IGA supermarket near the Canadian border, wanted, inter alia, to be able to handle “loonies” and “toonies” as well as dollars and cents.  As you might expect, their computer shopping trip ended with grief at the checkout aisle. 

 

Plaintiff claimed there were various meetings and presentations wherein an Auto-Star vice president and a representative of Retail Magic assured them that the POS computer system could be adapted to handle all of the store’s requirements, such as a requirement that the computers be able to recognize and handle the dual U.S. and Canadian currencies.  During the sales presentation, the plaintiff was given and read a brochure entitled “Auto-Star Seamless POS Abilities” stating that the computer system was the filet mignon of the retail meat department.   Thereafter, there was a price quotation for the software, equipment, installation, and support given as shoppers special to the plaintiff. 

 

After picking a number at the deli, the computer system was installed in June 2005 by the plaintiff and, according to the plaintiff, the tomatoes were rotten, the milk was sour, and the system never functioned properly and was never fully operational.  After various attempts were made to clean up the aisles and make the system functional, in February 2006 the plaintiff commenced suit against Auto-Star and Retail Magic.  The first shelf of the frozen food relationship department alleged rescission of the contract and return of approximately $230,000 paid for the system.  The second, third, and fourth shelves of frozen food alleged breach of express warranties, breach of implied warranties, breach of warranty of fitness for a particular purpose under the UCC, and breach of contract.  Auto-Star moved to dismiss under CPLR 3211 and the Court acted as the customer service department to settle what claims and refunds could be maintained.  The Trial Court granted the motion to dismiss, but the Second Department modified the order by sustaining the second and third causes of action alleging breach of certain express warranties that the computer system would be ripe, fresh and delicious.

 

After reviewing the in store specials and the newspaper insert, the Appellate Division concluded that the plaintiff’s purchase of the computer system from Retail Magic did not create a contractual relationship between the plaintiff and Auto-Star.  Therefore, it held that the Trial Court properly granted those parts of the motion to dismiss the first cause of action for rescission of the purchase agreement and the fourth cause of action to recover damages for breach of contract asserted against Auto-Star – the manufacturer.  The Appeals Court also ruled that certain representations and warranties contained in a Digital License Agreement were unenforceable because the plaintiff never expressly agreed to that agreement nor authorized the distributor to accept that agreement on its behalf. 

 

However, the plaintiff’s bacon was saved with the Appellate Department finding that the manufacturer could be bound by express warranty language set forth in its sales brochure, a Software Distribution Agreement, the Price Quotation and related sales documentation.  Reviewing this antipasto salad of a relationship, the Court explained that an express warranty can arise from literature published about a product, and such warranties are not barred by general disclaimers of warranty that may accompany the sale of the product.  The Appellate Division acting as store manager therefore overruled the Trial Court, the store clerk, by saying that the lower court erred in granting the motion to dismiss the third cause of action to recover damages for breach of an express warranty that the computer system was fit for the plaintiff’s particular use and that part of the second cause of action to recover damages for breach of express warranties set forth in some of the referenced literature. 

 

However, just as the plaintiff was proceeding through the checkout line with some of its claims still in its shopping cart, the Appellate Division did a final price check and held that, since the plaintiff was not in privity of contract with the manufacturer (Auto-Star) or in a relationship akin to or approaching privity, the plaintiff could not as an end-user of the computer system recover economic losses from the manufacturer under a theory of implied warranty.  The Appellate Division was unwilling to give a price discount on the lack of privity theory since the entity that was in privity with the manufacturer – the distributor Retail Magic – was not considered to be an agent of either the plaintiff or the manufacturer. 

 

In short, most of the direct breach of contract and implied warranty claims were dismissed because the plaintiff food store did not directly contract or buy the system from the manufacturer but rather from the distributor Retail Magic.  In short, breach of contract and implied warranty claims run with the buyer-seller relationship, but express warranties that the melons and rutabaga were fresh may attach to the product and manufacturer-producer.  Here, the plaintiff’s lawsuit was not turned into a total turkey because of at least colorable claims in some of the sales literature that the court felt could be construed as express warranties.

 

So the next time you are in the grocery store waiting at the deli for a pound of this and a half pound of that, just imagine the lovely legal claims that could arise if you are given bologna slices instead of the roast beef you ordered. 

 

UPDATE:  Revisiting an earlier column, in Gutman v. Klein previously discussed, an Eastern District Court judge recently accepted the Magistrate’s Report and Recommendation and granted a default judgment against the party as sanctions for extreme measures taken to destroy and falsify ESI in a conspiracy and fraud action.  This is reportedly the first time in the Second Circuit where a court awarded default judgment for losing or tampering with electronic evidence.  Gutman v. Klein, 03-cv-1570. 

 

DUQUIN – THE DUKE OF LEAD

Scott M. Duquin
[email protected] 

 

LEAD the Lingering Litigation

 

Part III – Lead Where?

 

In evaluating and defending a lead-based paint case, attention should be given to locating alternate sources of lead exposure.  This installment of our Lead Series focuses on friction surfaces at the insured premise, and other potential sources of plaintiff’s lead exposure. 

 

Besides improper abatement techniques of lead-based paint, plaintiff’s counsel often focuses his or her case on lead exposure from the friction surfaces at the insured’s properties.  In this context, a friction surface is the location where two surfaces rub together, such as the window or door and their jams.  The two painted surfaces rubbing against each other create friction, which speeds the deterioration of the paint into dust.  In a window sill, the dust may accumulate over time.  In one sad case where a child living in New Hampshire died from lead exposure in 2000, authorities made an extensive investigation into the source of the lead.  Ultimately, radioactive analysis revealed that the isotopic lead composition in the child’s blood most closely matched the isotopic lead composition of the dust found in the window sill, and also the paint on the front porch of the child’s residence. 1  Although that is only one case, alternative sources of lead are much more common than we may think. 

 

Any structure where the plaintiff spent time during the alleged period of lead exposure should be investigated.  Often the local health department will investigate these other structures if they are identified in the interview process.  Other structures may include the residences of family members who may have babysat on a regular basis, the day care center, or even the child’s school, and should be explored.  Records of local health department environmental surveys for lead hazards can be obtained through Freedom of Information Requests.  Addresses for these properties can be obtained through deposition questioning and other discovery devices. 

 

There are several studies that show the ground/dirt/topsoil in close proximity to a gas station, or a factory that uses lead in its manufacturing process, may have lead contamination.  Lead may also be present in the soil, left from deteriorating lead-based paint or leaded gasoline when it was still used. Defense counsel’s deposition inquiries should also ascertain if the plaintiff’s primary residence was near a gas station, factory, rail yard or heavy traffic area.  Parental occupational exposure should also be explored.  If the plaintiff’s parents work in an environment where lead is present, the source of exposure could be the parental clothing worn home from work then laundered in the family laundry.  In these types of scenarios, it may be necessary to retain a certified industrial hygienist or an environmental engineer to perform testing of the soil or clothes to more fully develop the lead exposure from these types of potential sources.

 

Other household items that may contain lead that defense counsel should inquire about during depositions include: lead pellets; ammunition; fishing sinkers; curtain weights; indoor firing ranges; old vinyl mini-blinds; green pool cue chalk; lead wick candles; pewter objects; lead crystal; ceramic dishes from foreign countries; and home hobbies such as furniture refinishing, making stained glass, and making/molding pottery.

           

Another source of lead may be from the drinking water; however, this source is somewhat uncommon.  Often the lead in drinking water comes from the solder uses to weld the pipe joints, or sometimes the pipes themselves are made from lead. However, lead contamination from dinking water is a somewhat unlikely source, even w here the water service line is made from lead.  A study conducted by the Center for Disease Control (CDC) in Washington D.C. that examined the population who lived in housing  with lead service lines, which had water lead levels in excess of CDC action levels, found their was little statistical correlation between these residences and the inhabitants having elevated blood-lead levels.  The study further noted that the residences with the lead service water lines were older, and it was thought that deteriorating lead-based paint at the properties was the more likely explanation for the slight statistical increase. 2

 

Products originating outside the United States may also contain excessive amounts of lead, especially products from developing nations.  The list of these products is somewhat expansive, and ranges from folk remedies to ceramic dishes to toys exported to the United States.  In August of 2007, Fisher Price recalled nearly a million toys because the toys manufactured in China were painted with lead-based paint. 3  Many of the consumer products recalled in the last fifteen years for excessive lead content have been made in China.  Other children’s products recalled in recent years include: vinyl baby bibs; children’s jewelry; Reebok metal bracelets and charms; Chinese crayons; Disney Princess Bracelet  key rings; Alpha International  pedal cars; McDonald’s bobble head figures; and multicolored sidewalk chalk.  A comprehensive list of product recalls can be found on “Lead Safe by 2010”, a Rochester, New York-based initiative, web site.4

 

We suggest that if the plaintiff’s family is of a foreign origin, during the deposition an inquiry should be made into the family’s use of traditional ethnic foods and medicines.  Mexican candy is one source of food found to contain lead; some popular candy brands are Tama Roca, Bolirindo, Chaca Chaca, Vero Rebanaditis, and Pelon Pelon Rico. Lead is thought to come from the dye that is used to color food.  Traditional folk remedies may contain lead, for example, Ayurvedic, a traditional medicine used in India to treat arthritis, menstrual health, diabetes, and fertility, has been linked to lead exposure.  Another traditional remedy to be weary of is Molleja de Pollo Molida, from Mexico, which is used to treat stomach ailments. Molleja de Pollo Molida is made from ground chicken gizzard, and has been found to have a lead content as high as 17%. Other traditional remedies found to be high in lead content include greta, paylooah, surma, sindoor, kohl, kajal, chuifong tokuwan, bala goli and Chapulines.

 

In the next issue, we will look at the causal link between  common injuries alleged by the plaintiff—such as decreased IQ, decreased cognitive function, Attention Deficit Disorder, and other behavioral disorders—and the plaintiff’s exposure to lead.

 

ACROSS BORDERS


12/17/08          American International Specialty Lines, Inc. v. LM Ericsson Telefon
Texas Court of Appeals

Insurer Has No Duty To Defend Parent Company of Insured
American International Specialty Lines Insurance Company (AISLIC) appealed from a trial court’s judgment granting LM Ericsson’s motion for summary judgment. The trial court found that AISLIC had a duty to defend LM Ericsson in an arbitration proceeding and ordered AISLIC to pay defense costs incurred by LM Ericsson. LM Ericsson was the parent company of Ericsson, Inc., which was insured by AISLIC. AISLIC declined to defend Ericsson because it contended that LM Ericsson was not an insured under the policy. On appeal, the court determined that Ericsson could be insured under the policy only if it meets the definition of “you” in the AISLIC policy, defined as “the named insured, Ericsson, Inc., its subsidiaries, and any employees of Ericsson, Inc. or its subsidiaries.” LM Ericsson never asserted that it fit within the definition of “you” of the policy and it was undisputed that LM Ericsson is the parent company. Therefore, the court concluded that the policy definitions do not include LM Ericsson as an insured and, thus, AISLIC has no duty to defend.

Submitted by: Bruce D. Celebrezze and Vanessa L. O’Brien (Sedgwick, Detert, Moran & Arnold LLP)

 

12/16/08          North Star Mut. Ins. Co. v. Doree
Minnesota Court of Appeals

Motor Vehicle Exclusion Bars Coverage for Claim Arising From Highway Accident.
The insured was towing a boat on a highway, and an inflatable tube swung out from behind the boat, striking and killing a motorcyclist. The trustee of the decedent’s estate sued the insured, Doree, and Doree tendered defense to his homeowner’s insurer, North Star. North Star refused coverage pursuant to a motor vehicle exception which precluded coverage for bodily injury resulting from the ownership, operation, use, etc. of “motorized vehicles, trailers, or watercraft owned, operated or used by or rented to or loaned to an “insured.” North Star filed a declaratory judgment action and the trial court granted summary judgment in the insurer’s favor. The trial court affirmed, rejecting the insured’s assertion that the concurrent cause doctrine extended coverage for the accident. The concurrent cause doctrine provides that a homeowner’s policy may provide coverage for injuries sustained through the use of a motor vehicle when “two independent acts, one vehicle-related and one nonvehicle-related, combine to cause the injury.” The appellate court held that the doctrine was inapplicable because the possibility that death would have resulted independent of the operation of the vehicle was too remote. Thus, the appellate court affirmed summary judgment in favor of the insurer.

Submitted by: Bruce D. Celebrezze and Vanessa L. O’Brien. (Sedgwick, Detert, Moran & Arnold LLP)

 

REPORTED DECISIONS

 

In the Matter of Long Island Insurance Company v. MVAIC.


Jeffrey T. Baron, East Northport, N.Y. (Louis A. Baldolato of
counsel), for appellant.
Cruz & Gangi (Connors & Connors, P.C., Staten Island, N.Y.
[Robert J. Pfuhler], of counsel), for
respondent.


DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award, the petitioner appeals from an order of the Supreme Court, Nassau County (McCarty, J.), entered November 19, 2007, which denied the petition.

ORDERED that the order is affirmed, with costs.

Contrary to the petitioner's allegation, the printout submitted as proof of service upon the Department of Motor Vehicles of notice of cancellation of the subject automobile insurance policy does not substantiate that such service occurred. There is no indication on the face of the document as to its derivation or what it represents. In contrast, the printout submitted by the respondent, with an affidavit of an employee demonstrating that it was obtained from the Department of Motor Vehicles in the regular course of its business, gave the arbitrator a rational basis to conclude that the petitioner insured the vehicle in question at the time of the accident (see Matter of Progressive Classic Ins. Co. v Kitchen, 46 AD3d 333). "'Judicial review of an arbitrator's award is extremely limited' (Pearlman v Pearlman, 169 AD2d 825, 826), and a reviewing court may not second-guess the fact-findings of the arbitrator" (Matter of Liberty Mut. Ins. Co. v Sedgewick of N.Y., 43 AD3d 1062, 1063). The petitioner provided no basis to overturn the arbitration award (see Matter of Liberty Mut. Ins. Co. v Vidale, 207 AD2d 489).

The petitioner's remaining contentions are without merit.

Gaston v. American Transit Insurance Company


Marjorie E. Bornes, for appellant.
William D. Fireman, for respondents.


MEMORANDUM:

The order of the Appellate Division should be modified, without costs, by denying plaintiffs' motion for summary judgment and, as so modified, affirmed.

In this Insurance Law § 3420 action, defendant insurer should not have been collaterally estopped from litigating the issue of whether the car that collided with the bus in which the injured plaintiffs were traveling was insured on the date of the accident. Three prior judgments involving different parties' claims arising from the same bus accident were submitted to the court. The plaintiffs [FN1] proffered two default judgments that resolved the coverage issue against the insurer while the insurer demonstrated that the same coverage question had been adjudicated in a third proceeding resulting in a judgment in the insurer's favor. In light of these conflicting judgments on the same issue, application of the doctrine of collateral estoppel was not warranted (see Restatement [Second] of Judgments § 29[4]). Since plaintiffs' arguments in opposition to the insurer's cross-motion for summary judgment were not addressed by either of the courts below, we decline to grant the insurer's cross-motion for summary judgment.
* * * * * * * * * * * * * * * * *
Order modified, without costs, by denying plaintiffs' motion for summary judgment and, as so modified, affirmed, in a memorandum.

Jaglom v. Insurance Company of Greater New York, Defendant-Appellant.


Thomas D. Hughes, New York (Richard C. Rubinstein of
counsel), for appellant.
Ohrenstein & Brown, LLP, Garden City (Michael D. Brown of
counsel), for respondents.

Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered June 7, 2007, which denied defendant's motion to dismiss the complaint, affirmed, without costs.

Plaintiffs seek a judgment declaring that defendant must defend and indemnify them in an underlying libel action. Defendant moved to dismiss the complaint, pursuant to CPLR 3211(a)(1) and (7), on the ground that the insureds failed to give it timely notice of the offense and resulting claim against them. In opposition to the motion, plaintiffs submitted an affidavit by plaintiff Jaglom and an affirmation by their counsel explaining that they did not provide notice to defendant until they were served with a summons and complaint, because until then they believed in good faith that they were not liable for defamation (see Argentina v Otsego Mut. Fire Ins. Co., 86 NY2d 748, 750 [1995]). While we disagree with the motion court's conclusion that as a matter of law plaintiffs did not fail to timely notify defendant and therefore did not breach a condition precedent to the insurance contract, we affirm the denial of the dismissal motion because we conclude that questions of fact are presented regarding the existence and the reasonableness of the insured's professed good-faith belief that the party that has since commenced the defamation action against them would not seek to hold the insured liable (id.). The April 19, 2005 attorney's letter complaining of a retransmission of an allegedly defamatory letter dated July 21, 2004 did not establish as a matter of law an intent to bring an action such as would require notice of the expected claim to the insurer at that time.

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


CATTERSON, J. (dissenting)

Because I believe that the court erred when it denied the defendant's motion to dismiss the complaint based on the plaintiffs' failure to provide timely notice of a claim or occurrence, I respectfully dissent.

There is no dispute that the plaintiffs waited a significant amount of time before notifying the defendant of the defamation claim. The plaintiffs assert, however, that there existed a reasonable excuse for the delay. In support of their position, the plaintiffs proffered the affirmation of their counsel and the affidavit of Jaglom as explanations for the delay. Both explained that the plaintiffs did not provide notice to the defendant until they were served with a summons and complaint, because until then they believed in good faith that they were not liable for defamation. See Argentina v. Otsego Mut. Fire Ins. Co., 86 N.Y.2d 748, 750, 631 N.Y.S.2d 125, 126, 655 N.E.2d 166, 167 (1995).

This misapprehends the nature of a good-faith belief in nonliabilty. The question is whether the insured learned of an occurrence that may result in the assertion of liability against the insured and had a reasonable "good-faith belief of nonliability." Great Canal Realty Corp. v. Seneca Ins. Co., Inc., 5 NY3d 742, 743, 800 N.Y.S.2d 521, 522, 833 N.E.2d 1196, 1197 (2005). I believe that, at best, the plaintiffs merely have demonstrated that they believed that they could successfully defend against the former tenants' libel claim. Following the tenants' attorney's letter of April 19, 2005, there could be little doubt that the tenants intended to assert, inter alia, a claim against the plaintiffs for libel. In my view, failure to promptly notify the defendant of this potential claim requires dismissal of the plaintiff's action against the defendant insurer.

Jaglom v. Insurance Company of Greater New York

 

Thomas D. Hughes, New York (Richard C. Rubinstein of
counsel), for appellant.
Ohrenstein & Brown, LLP, Garden City (Michael D. Brown of
counsel), for respondents.

Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered June 7, 2007, which denied defendant's motion to dismiss the complaint, affirmed, without costs.

Plaintiffs seek a judgment declaring that defendant must defend and indemnify them in an underlying libel action. Defendant moved to dismiss the complaint, pursuant to CPLR 3211(a)(1) and (7), on the ground that the insureds failed to give it timely notice of the offense and resulting claim against them. In opposition to the motion, plaintiffs submitted an affidavit by plaintiff Jaglom and an affirmation by their counsel explaining that they did not provide notice to defendant until they were served with a summons and complaint, because until then they believed in good faith that they were not liable for defamation (see Argentina v Otsego Mut. Fire Ins. Co., 86 NY2d 748, 750 [1995]). While we disagree with the motion court's conclusion that as a matter of law plaintiffs did not fail to timely notify defendant and therefore did not breach a condition precedent to the insurance contract, we affirm the denial of the dismissal motion because we conclude that questions of fact are presented regarding the existence and the reasonableness of the insured's professed good-faith belief that the party that has since commenced the defamation action against them would not seek to hold the insured liable (id.). The April 19, 2005 attorney's letter complaining of a retransmission of an allegedly defamatory letter dated July 21, 2004 did not establish as a matter of law an intent to bring an action such as would require notice of the expected claim to the insurer at that time.

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


CATTERSON, J. (dissenting)

Because I believe that the court erred when it denied the defendant's motion to dismiss the complaint based on the plaintiffs' failure to provide timely notice of a claim or occurrence, I respectfully dissent.

There is no dispute that the plaintiffs waited a significant amount of time before notifying the defendant of the defamation claim. The plaintiffs assert, however, that there existed a reasonable excuse for the delay. In support of their position, the plaintiffs proffered the affirmation of their counsel and the affidavit of Jaglom as explanations for the delay. Both explained that the plaintiffs did not provide notice to the defendant until they were served with a summons and complaint, because until then they believed in good faith that they were not liable for defamation. See Argentina v. Otsego Mut. Fire Ins. Co., 86 N.Y.2d 748, 750, 631 N.Y.S.2d 125, 126, 655 N.E.2d 166, 167 (1995).

This misapprehends the nature of a good-faith belief in nonliabilty. The question is whether the insured learned of an occurrence that may result in the assertion of liability against the insured and had a reasonable "good-faith belief of nonliability." Great Canal Realty Corp. v. Seneca Ins. Co., Inc., 5 NY3d 742, 743, 800 N.Y.S.2d 521, 522, 833 N.E.2d 1196, 1197 (2005). I believe that, at best, the plaintiffs merely have demonstrated that they believed that they could successfully defend against the former tenants' libel claim. Following the tenants' attorney's letter of April 19, 2005, there could be little doubt that the tenants intended to assert, inter alia, a claim against the plaintiffs for libel. In my view, failure to promptly notify the defendant of this potential claim requires dismissal of the plaintiff's action against the defendant insurer.

Akhtar v.  Santos


Tierney & Tierney, Port Jefferson Station, N.Y. (Stephen A. Ruland
of counsel), for appellants.
Faust Goetz Schenker & Blee, LLP, New York, N.Y. (Dominic
Boone of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Brandveen, J.), dated August 24, 2007, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff Mohammad S. Akhtar 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 defendant's motion for summary judgment dismissing the complaint is denied.

On a motion for summary judgment, the defendant has the initial burden of making a prima facie showing that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Gaddy v Eyler, 79 NY2d 955, 956-957; Matthews v Cupie Transp., Corp., 302 AD2d 566, 567). In this case, the orthopedist who examined the injured plaintiff on behalf of the defendant found restrictions in the range of motion of the plaintiff's cervical and lumbar spines and left shoulder five years after the accident. Accordingly, the defendant failed to meet her initial burden of establishing a prima facie case that the plaintiff had not sustained a serious injury. Under these circumstances, "it is not necessary to consider whether the plaintiff's papers in opposition to the defendant's motion were sufficient to raise a triable issue of fact" (Coscia v 938 Trading Corp., 283 AD2d 538; see Swaby v Maldonado, 52 AD3d 692, 692-693).
SPOLZINO, J.P., SANTUCCI, MILLER, DICKERSON and ENG, JJ., concur.

Atan v. Fitzgerald


John W. Hobbes, PLLC (Sweetbaum & Sweetbaum, Lake Success,
N.Y. [Marshall D. Sweetbaum], of counsel), for appellants.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated November 30, 2007, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff Michael J. Atan did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

The defendants failed to establish their prima facie entitlement to judgment as a matter of law. Accordingly, the defendants' motion for summary judgment dismissing the complaint was properly denied (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).
SKELOS, J.P., RITTER, DILLON, CARNI and LEVENTHAL, JJ., concur.

Federal Insurance Company v. Tyco International Ltd.


Beveridge & Diamond, P.C., New York (John H. Kazanjian of
counsel), for appellant.
Warner Partners, P.C., New York (Kenneth E. Warner of
counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Helen E. Freedman, J.), entered August 20, 2007, inter alia, directing that Federal Insurance Company reimburse Frank E. Walsh, Jr. $2,857,806.73 in defense costs in certain underlying actions, unanimously affirmed, with costs. Appeal from decision, same court and Justice, dated April 23, 2007, which granted Walsh's motion for summary judgment declaring him eligible for coverage and apportioning insurance proceeds between him and Tyco International Ltd., unanimously dismissed, without costs, as taken from a nonappealable paper.

Outside director Walsh's violation of the Martin Act did not bar his recovery of defense costs under the Federal Insurance directors and officers liability insurance obtained by Tyco. Strictly construing the policy exclusions (see Belt Painting Corp. v TIG Ins. Co., 100 NY2d 377, 383 [2003]) and according meaning to each of their terms (see Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [2007]), the motion court correctly interpreted the exclusions of claims "based on, arising from, or in consequence of" a wrongful act, rather than the language of "interrelated" and explicitly "causally connected" wrongful acts contained in the limit on liability section of the coverage provisions, in finding that there are civil claims against Walsh that are not covered and civil claims against him that are covered. Walsh's conduct represents only a portion of the acts for which liability is sought to be imposed and was of a different character from that of most of the wrongs alleged in the actions against the corporation, its executives, its accountants and some of its directors.

In equitably distributing the policy proceeds, the court correctly found that the policy gives priority to the claims of "insured persons" over those of the insured corporation, properly considered the corporation's access to excess coverage, and properly declined to consider the order in which the insureds submitted their defense bills (see Agricultural Ins. Co. v Matthews, 301 AD2d 257, 260 [2002]).

We have considered Tyco's other contentions and find them unavailing.

Cracolici v. Lassiter


Scott D. Middleton, Bohemia, N.Y., for appellants.
Andrew John Calcagno, Staten Island, N.Y., for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants Joseph J. Lassiter, Cardinal Freight Carriers, Inc., and Cardinal Logistics Management, Inc., appeal from an order of the Supreme Court, Richmond County (McMahon, J.), dated December 18, 2007, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff Scott M. Cracolici did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The movants failed to make a prima facie showing that the plaintiff Scott M. Cracolici (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). Since the movants failed to meet their initial burden, their motion for summary judgment should have been denied without regard to the sufficiency of the opposing papers (see Hughes v Cai, 31 AD3d 385, 385-386; see also Coscia v 938 Trading Corp., 283 AD2d 538).
FISHER, J.P., LIFSON, COVELLO, BALKIN and BELEN, JJ., concur.

Norme v. Ajons


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Mead, Hecht, Conklin & Gallagher, LLP [Elizabeth Hecht], of
counsel), for appellants.
Subin Associates LLP (Pollack, Pollack, Isaac & De Cicco, New
York, N.Y. [Brian J. Isaac and Diane
K. Toner], 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, Kings County (Kramer, J.) entered November 27, 2007, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED the order is affirmed, with costs.

The plaintiff, a pedestrian, was struck by the defendants' vehicle, and thrown over the car, hitting his right shoulder on the windshield and crashing to the ground. The Supreme Court correctly found that the defendants did not meet their burden of coming forward with sufficient evidence in admissible form to establish, prima facie, that the plaintiff did not sustain a serious injury as a result of the subject accident. The defendants' medical expert found significant decreases in the range of motion of the plaintiff's right shoulder more than three years after the accident and after the plaintiff underwent arthroscopic surgery to that shoulder, thus revealing the existence of an issue of fact as to the severity and permanence of the plaintiff's injury (see Jenkins v Miled Hacking Corp., 43 AD3d 393).

In light of the foregoing, we need not address the adequacy of the affidavit of the plaintiff's physician (see Dzaferovic v Polonia, 36 AD3d 652; Coscia v 938 Trading Corp., 283 AD2d 538).
FISHER, J.P., FLORIO, ANGIOLILLO, DICKERSON and BELEN, JJ., concur.

Mitchell v. Atlantic Paratrans of NYC, Inc.


Smith Mazure Director Wilkins Young & Yagerman, P.C.,
New York (Marcia Raicus of counsel), for appellants.
Jason Levine, New York, for respondent.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered September 26, 2007, which denied defendants' motion for summary judgment dismissing the complaint for lack of a serious injury as defined by Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

In opposition to the defendants' prima facie showing that plaintiff did not suffer a serious injury causally related to the subject accident, plaintiff failed to raise a triable issue of fact (see Pommells v Perez, 4 NY3d 566, 574 [2005]). While it is undisputed that plaintiff was afflicted with certain spinal defects, the cause thereof, according to defendants' neurologist, was congenital malformation and not the event in question. It is uncontested that plaintiff had scoliosis and spina bifida, congenital conditions. The conclusory statements of plaintiff's experts, unsupported by any probative evidence, that plaintiff's limitations were causally related to the accident are insufficient to defeat summary judgment (see Carter v Full Serv., Inc., 29 AD3d 342, 344 [2006], lv denied 7 NY3d 709 [2006]).

Pinkhasov v. Weaver


Goidel & Siegel, LLP, New York (Steven E. Cohen of
counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Holly E. Peck of counsel), for respondents.

Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered October 24, 2007, which granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants established a prima facie entitlement to summary judgment by submitting the affirmed reports of a neurologist and orthopedist, which were in compliance with CPLR 2106 (cf. Offman v Singh, 27 AD3d 284 [2006]). The doctors reviewed plaintiff's medical records, examined him and performed detailed and objective tests before concluding that plaintiff had full range of motion in his cervical and lumbar spine. Defendants also
submitted plaintiff's deposition testimony in which he stated that he was only confined to bed for three to four days following the accident (see Copeland v Kasalica, 6 AD3d 253 [2004]).

In opposition, plaintiff failed to raise a triable issue of fact as to whether he sustained a serious injury. Plaintiff's unsworn MRI reports were properly not considered by the motion court (see Grasso v Angerami, 79 NY2d 813 [1991]), and the affirmation of plaintiff's medical expert failed to provide objective medical proof to support plaintiff's claim of permanent injury. Although plaintiff's expert stated that plaintiff had decreased range of motion in his cervical and lumbar spines, he failed to detail with any specificity these limitations (see Rodriguez v Abdallah, 51 AD3d 590, 592 [2008]; Vasquez v Reluzco, 28 AD3d 365, 366 [2005]).

Furthermore, as noted, plaintiff was only confined to bed for three to four days after the accident, and absent objective medical evidence, his subjective statements that he was unable to perform his usual and customary daily activities during the statutorily relevant time period, is insufficient to establish a serious injury under the 90/180 prong of Insurance Law § 5102(d) (see Nelson v Distant, 308 AD2d 338, 340 [2003]).

We have considered plaintiff's remaining arguments and find them unavailing.

Reyes v. Brito


Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for appellant.
Belovin & Franzblau, LLP, Bronx (David Karlin of counsel),
for respondent.

Order, Supreme Court, Bronx County (Lucy Billings, J.), entered on or about July 31, 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.

Defendant made a prima facie showing that the motor vehicle accident did not cause plaintiff to suffer a serious injury, as defined by Insurance Law § 5102(d) (see Lesocovich v 180 Madison Ave. Corp., 81 NY2d 982, 985 [1993]). Defendant presented admissible evidence that a neurological examination found no disabling injuries. Any abnormalities in the lumbar and cervical spine, as revealed by MRIs taken shortly after the accident, were the result of a degenerative process. In opposition, plaintiff failed to raise a triable issue of fact on this point. The affirmation of her treating doctor made no effort to address, much less rebut, the finding by defendant's radiologist that the condition of plaintiff's lumbar and cervical spine was attributable to preexisting degeneration rather than to this accident. Therefore, no causal connection was established between the MRI findings and the accident (see Pommells v Perez, 4 NY3d 566, 579-580 [2005]; Charley v Goss, 54 AD3d 569, 571-572 [2008]), and no issue of fact exists as to whether the accident might have caused a permanent consequential or significant limitation of the use of a body function or system. Plaintiff also failed to raise an issue of fact as to whether the accident rendered her incapable of performing usual and customary activities during at least 90 of the next 180 days (see Batts v Medical Express Ambulance Corp., 49 AD3d 294, 295 [2008]).

Ayala v Bassett

 

Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck

(Elizabeth M. Hecht of counsel), for appellant.

Ryan S. Goldstein, P.L.L.C., New York (Ryan S. Goldstein of

counsel), for respondents.

 

 

Judgment, Supreme Court, Bronx County (Barry Salman, J.), entered July 16, 2007, awarding the adult plaintiffs the principal sum of $25,000 each, and the infant plaintiff the principal sum of $10,000, unanimously reversed, on the law, without costs, the awards vacated and the complaint dismissed. The Clerk is directed to enter judgment in favor of defendant dismissing the action. Appeal from order, same court (Wilma Guzman, J.), entered on or about May 5, 2008, which denied defendant's motion to vacate the judgment and dismiss the action for lack of personal jurisdiction, unanimously dismissed, without costs.

 

As gleaned from the face of the affidavit of service, the process server exercised due diligence in attempting to serve defendant personally with the summons and complaint before resorting to nail-and-mail service at the residential address defendant had provided to police at the time of the accident (see CPLR 308[4]). The affidavit constituted prima facie evidence of proper service, indicating efforts to serve defendant at the residence on three different occasions (early morning, afternoon and evening) across a 22-day span (see e.g. Brown v Teicher, 188 AD2d 256 [1992]). When the burden thus shifted to defendant to rebut the presumption of proper service, she failed to offer an affidavit or other documentary evidence challenging the validity of the attempted service.

 

The default resolved the issue of which party was at fault, but the burden remained with plaintiffs to establish a prima facie case of serious injury at the inquest (Ortiz v Biswas, 4 AD3d 151 [2004]). Defendant's repeated objection to the admissibility of plaintiffs' unaffirmed or uncertified medical documents at the inquest preserved this challenge. Most of plaintiffs' medical evidence was not properly authenticated or affirmed, and thus was inadmissible (see Grasso v Angerami, 79 NY2d 813 [1991]; Shinn v Catanzaro, 1 AD3d 195 [2003]). The only admissible evidence - medical records of plaintiffs' radiologist and chiropractor - failed to establish that any of the plaintiffs suffered serious injury. The radiologist's MRI reports that found the two adult plaintiffs had suffered herniations were insufficient as those conditions were not

causally related to the accident (see generally Pommells v Perez, 4 NY3d 566 [2005]). The chiropractor's medical reports alluded to specified findings of plaintiffs' range-of-motion limitations, but such findings were made approximately two weeks after the accident, and no further findings were made after the plaintiffs each completed several months of therapy to address their diagnosed soft-tissue injuries. Even assuming, for the sake of argument, that all of the plaintiffs' medical evidence submitted at the inquest was admissible, the unexplained gap in treatment of 4½ years for each plaintiff undermined their respective claims of serious injury based on allegations of permanent injury (see id. at 574).

 

None of the plaintiffs offered evidence sufficient to show their incapacity to perform substantially all of their usual and customary activities for at least 90 of the first 180 days following the accident (Insurance Law § 5102[d]). The two adult plaintiffs noted few activities they were prevented from undertaking, and they each returned to full-time work within a week or two. The infant plaintiff was not shown to have been precluded from engaging in her regular daily activities.

 

In view of the foregoing, we need not address the appeal from the order denying vacatur of the judgment. We would note only that a party who asserts lack of jurisdiction as grounds for vacating a default judgment has no obligation to prove a meritorious defense (see Johnson v Deas, 32 AD3d 253, 254 [2006]; Boorman v Deutsch, 152 AD2d 48, 51 [1989], lv dismissed 76 NY2d 889 [1990]).

 

Fireman's Fund Insurance Company v. Farrell, Jr.

 

Marschhausen & Fitzpatrick P.C., Garden City, N.Y. (Kevin P.

Fitzpatrick of counsel), for appellant.

Lustig & Brown, Buffalo, N.Y. (Jonathan Schapp of counsel),

for respondents.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for legal malpractice, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, J.), dated August 13, 2007, as denied his motion for summary judgment dismissing the complaint and granted those branches of the plaintiffs' cross motion which were pursuant to CPLR 3211(b) to dismiss his affirmative defenses.

 

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the plaintiffs' cross motion which were to dismiss the second, seventh, and twelfth affirmative defenses and substituting therefor a provision denying those branches of the plaintiffs' cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

 

In May 1996 Jimmy Quiles commenced an action against Joseph Gazza to recover $5 million in damages for the injuries he sustained when he fell from a roof on Gazza's building (hereinafter the Quiles Action). In September 1996 Gazza commenced a third-party action against Quiles' employer, the Six G's Contracting Corp. (hereinafter Six G's), for common-law indemnification and contribution (hereinafter the Indemnity Action).

 

The attorney for Six G's, James P. Farrell, Jr., did not notify its workers' compensation carrier, the State Insurance Fund (hereinafter SIF), about the pending lawsuits until February 12, 1999, almost 2½ years after the Indemnity Action began and almost 1 year after the Supreme Court awarded partial summary judgment in favor of Quiles on the issue of liability and in favor of Gazza on the issue of indemnification. Although SIF disclaimed coverage based on the late notice, it contributed $400,000 toward the $1.1 million settlement of the Quiles Action. Gazza's general liability carrier, the Fireman's Fund Insurance Co. (hereinafter Fireman's), contributed the remaining $700,000.

 

Six G's subsequently assigned its claims against Farrell, inter alia, alleging legal malpractice to Gazza and Fireman's, who commenced the present action. On a prior appeal, this Court affirmed the denial of Farrell's motion to dismiss the complaint for failure to state a cause of action and the denial of the plaintiffs' cross motion for summary judgment (see Fireman's Fund Ins. Co. v Farrell, 289 AD2d 286).

 

In an action to recover damages for legal malpractice, a plaintiff must prove that the attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" and that the attorney's breach of this duty proximately caused actual and ascertainable damages (McCoy v Feinman, 99 NY2d 295, 301 [internal quotation marks and citation omitted]). To establish the element of causation, the plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the attorney's negligence (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Barnett v Schwartz, 47 AD3d 197).

 

To succeed on a motion for summary judgment dismissing a cause of action alleging legal malpractice, the attorney must establish, through the submission of evidentiary proof in admissible form, that the plaintiff is unable to prove at least one of the essential elements of the cause of action (see Suydam v O'Neill, 276 AD2d 549; Ostriker v Taylor, Atkins & Ostrow, 258 AD2d 572).

 

Farrell contends that he is entitled to summary judgment because the plaintiffs, the assignees of his former client Six G's, cannot prove that his failure to timely notify SIF of the Indemnity Action caused the alleged damages. Specifically, Farrell contends that he is not liable for legal malpractice because SIF did not provide timely notice of its disclaimer and, even if it did, it then waived the disclaimer by the inconsistent acts of negotiating and ultimately settling the Quiles Action.

 

The reasonableness of a delay in disclaiming coverage is measured from the time that the insurer is aware of sufficient facts to disclaim (see North Country Ins. Co. v Tucker, 273 AD2d 683). Here, there is a genuine issue of fact as to whether Farrell's letter dated February 12, 1999, and the pleadings annexed thereto, provided sufficient information regarding the commencement date of the Indemnity Action to warrant an earlier disclaimer on the ground of late notice. Similarly, there is a genuine issue of fact as to whether SIF's participation in the settlement of the Quiles Action constituted a clear manifestation of the intent to relinquish its right to disclaim coverage (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966). Inasmuch as Farrell failed to meet his burden of proof on the timeliness and waiver issues, the Supreme Court properly denied his motion for summary judgment dismissing the complaint.

 

The same issues of fact precluded the court from granting those branches of the plaintiff's cross motion which were pursuant to CPLR 3211(b) to dismiss the second, seventh, and twelfth affirmative defenses, which incorporate the documentary evidence as it relates to the issues of waiver and proximate cause (see Fleckenstein v Nehrbas, 21 AD2d 889). Pursuant to CPLR 3211(b), a "party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference (see Warwick v Cruz, 270 AD2d 255; Abney v Lunsford, 254 AD2d 318). Moreover, if there is any doubt as to the availability of a defense, it should not be dismissed (see Becker v Elm A.C. Corp., 143 AD2d 965).

 

The Supreme Court properly granted those branches of the plaintiffs' cross motion which were to dismiss the remaining 11 affirmative defenses, which merely plead conclusions of law without any supporting facts (see Bentivegna v Meenan Oil Co., 126 AD2d 506; Glenesk v Guidance Realty Corp., 36 AD2d 852).

MASTRO, J.P., FLORIO, ENG and CHAMBERS, JJ., concur.

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