Coverage Pointers - Volume X, No. 16

Dear Coverage Pointers Subscribers:

The morning temperature was -3F.  When the world starts owing us degrees, it's just too cold for me.  I will be using Punxsutawney Phil as a game piece in the Whack-A-Mole, since the little marmot predicted six more weeks of winter!

Web 2.0, LinkedIn and the Voice of Coverage Pointers
We are quite confident that Coverage Pointers, in its eleventh year of publication, is one of the oldest electronically published insurance coverage newsletters in the nation.  We receive constant reaffirmation of our purpose from the great feedback and comments regularly received.  We want to do more for you. 

The concept of Web 2.0 is that the Internet is maturing into a useful business platform with the opportunity for collaboration and interactivity.  It is with that purpose in mind, that we conceived, established and manage New York Insurance, a LinkedIn group.  

For those of you who have not yet visited LinkedIn, please take a moment to join this business networking site.  There's no charge and it takes about one minute to sign in.  You should be able to get there via this link: www.linkedin.com/groups?gid=1777061. It's designed as an interactive forum to discuss insurance-related issues in New York, and I am inviting all of you to join me there.  We already have attracted 48 members since we introduced it two weeks ago.

I started a discussion about one of the cases reported in today's issue, the Liberty Mutual SUM case, on the question of the amount of SUM coverage available when there are multiple claimants sharing a $25,000 / $50,000 liability policy.

Training Past

A special greeting to my newest group of subscribers -- and you know who you are - who were kind enough to tolerate me for the better part of a day, on three topics:  the Cooperation Clause, Late Notice and Business Income Loss. We do take these training programs on the road, so let us know if we can help

Training Future - Events not to Miss:

·        NBI Bad Faith Seminar (February 25, 2009), Syracuse, New York (where Steve Peiper will be presenting)

·        PLRB/LIRB Claims Conference (March 22-25, 2009), Seattle, Washington

·        DRI Insurance Coverage and Claims Institute (April 1-3, 2009), Chicago, IL, where  yours truly will be presenting on handling Complex Liability Insurance Issues;

·        FDCC 2009 Litigation Management Conference & Graduate Program (June 14-18, 2009), Emory University, Atlanta Georgia

Lame Duck Day
Each February 6, the nation celebrates "Lame Duck Day," a date for special recognition for those who have been voted out of office.  Please send a note of congratulations to any politician you know who won't be serving you in local or national government in the future.  On February 6, 1933, the 20th amendment to the U.S. Constitution went into effect. This amendment addressed presidential succession and created the ultimate lame duck. 

Earl's Pearls

Earl has an interesting piece on the federal rules changes relating to expert witnesses.  How he continues to come up with new idea for columns each week is a testament to his creativity.

 

One Hundred Years Ago Today:

 

February 6, 2009

New York Times, Page 1

 

TAFT WILL HAVE AUTOS.

House Compels Senate to Agree to $12,000 Appropriation.

Special to the New York Time

 

WASHINGTON, Feb. 5.-After swearing by all the nine gods of war  that President Taft should get around as best he might, but that never, never, never would it consent to give him.$12,000 for the immediate purchase of automobiles after March 4, the Senate, to-day, surrendered. The Committee on Appropriations receded from its position and decided to accept the Item, which was put into the Urgent Deficiency Appropriation bill twice by the House.

 

Audrey's Angles:

Notes from the Queen of No Fault, Audrey Seeley:

 

The Appellate Division, Second Dept. rendered an interesting decision regarding whether the court can take judicial notice of the treatment/procedure codes and definitions on the website for the US Department of Health & Human Services.  In that case, the insurer relied solely upon the judicial notice of the treatment and procedure codes for its cross-motion for summary judgment for the proposition that the alleged injuries did not arise out of the use and operation of the motor vehicle.  While the Court took judicial notice of the codes, it found that the codes alone were insufficient for the insurer to meet its burden of demonstrating that the injuries were not casually related to accident.

 

If you would like the full decision please email me at [email protected] and I will send it to you. 

 

Audrey

 

Peiper on Property (and Potpourri):

Words from the darkened world of Property Insurance and author Steve Peiper:

In an effort to raise awareness (and my profile), I thought I'd jot a few lines down for this week's cover letter.  Unfortunately, I am not as witty as our editor-in-chief, nor filled with his thirst for random trivia.  So that angle's out.  Likewise, I doubt I could ever write as eloquently as Audrey.  Out of luck again, I guess.  Perhaps I could just focus on the interesting cases of the past two weeks.  Wait, there were none?  Strike three. 

 

Oh well, I'll just get right to it.  This week for your reading pleasure, we have included a synopsis of the Insurance Department's recent memorandum on maneuvering through the Anti-Steering law, and its tangled web of regulations.  Although admittedly not the most interesting of reads, if you handle property damage claims it is worth a few minutes of your time. 

 

Also, as my first shameless plug, in my first shameless note, please consider joining me at an upcoming seminar dedicated solely to the emerging area of Bad Faith law in New York.  We will cover both first-party and third-party developments, as well as emerging discovery and ethical issues. The program, which is being offered by National Business Institute, is scheduled for February 25th in Syracuse.  Much fun will be had by all.  If you would like more information, please do not hesitate to contact me at [email protected].

 

Steve

 

Introducing Kirstin Lowry Sommers - Practicing Green
Hurwitz & Fine's most recent hire is Kirstin Sommers.  Kirstin brings over a very interesting and unique practice.  She has been certified by the Green Building Council as a LEED Accredited Professional, and according to the GBC's website, one of only 16 in the State of New York and one of only three outside of the Greater New York City area.  I didn't know much about LEED - Leadership in Energy and Environmental Design - certification but am learning.  It demonstrates a real understanding of sustainable building rating systems and the development of green buildings.  Kirstin has already raised some very interesting insurance coverage issues that we can expect to see in the months and years to come involving claims arising out of certifications, costs related to reestablishing certified buildings after fires, floods or other losses, and the like.  We understand that a few carriers are writing special LEED coverage packages and we'll become more familiar with them as we move forward.  Welcome Kirstin.

 

This week's Coverage Pointers:

You will find the following reviews, with a special tip of the hat to Margo Lagueras who reviewed over 20 Serious Injury cases:

 

KOHANE'S COVERAGE CORNER
Dan D. Kohane

[email protected]

 

• "Spray Painting Operations Exclusion" Does Not Apply to Painters Using Hand-Applied Sealant; "Word Product Exclusion" does not apply to Fire Caused by Storage of Rags when Work Completed
• Failure to Move to Stay UIM Arbitration within 20 Days Bars Right to Raise Coverage Defenses
• Word to the Wise - Don't Allow a Default in Uninsured Motorists Proceeding and Expect to Relitigate the Matter Anew.  Fictional Policy has Minimum Limits Coverage
• Where SUM Carrier Knew of Accident within Three Weeks of its Occurrence, paid No Fault Benefits and was Advised of Potential SUM Claim, Failure to Notify Carrier of Commencement of Third Party Lawsuit was Not Prejudicial
• Standard for Notice to Excess Carrier (Under Specific Policy Provisions) Differs than Standard for Primary Carrier
• One Bite at the Apple to Confirm Arbitration Award

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

Margo M. Lagueras

[email protected]

 

• Defendants' Expert's Finding of Significant Range-of-Motion Limitations Will Not Support Summary Judgment
• Again, Defendants' Expert's Finding of Significant Range-of-Motion Limitations Will Not Support Summary Judgment
• Plaintiff's Opposition to Summary Judgment Is Sufficient Where His Physician's Report Covers All Bases
• Another Treating Physician Who Knows What It Takes to Defeat Summary Judgment
• Defendants Fail Where They Fail to Establish Injuries Alleged in Plaintiff's Bill of Particulars Are Not Causally Related to Accident
• Summary Judgment Survives on Both Liability and Serious Injury
• Defendants' Prima Facie Showings Survive
• One Serious Injury Entitles Plaintiff to Seek Recovery for All Injuries
• Finding of Significant Range-of-Motion Limitation Defeats Summary Judgment
• Examination Over 2 Years after Accident Fails to Rebut Claim under 90/180-Day Category
• Defendants' Experts' Failure to Address Serious Injury Categories Alleged in Plaintiff's Bill of Particulars Results in Reversal
• Affirmed MRI Reports Revealing Herniated Discs Must Set Forth Opinion as to Causation
• Affirmations of Treating Orthopedist, Neurologist and Radiologist Raise Triable Issue of Fact
• Contemporaneous and Recent Examinations Concluding Injuries Are Permanent and Causally Related Raise Triable Issue of Fact
• Affirmed Medical Examinations Which Rely on Unsworn MRI Reports Lack Probative Value
• Test Results Must Be Compared to Normal Range and Correctly Correlated
• Range-of-Motion Limitations Must Be Quantified to Support Assertions
• Failure to Acknowledge Prior Accident Renders Conclusions Speculative
• Plaintiff's Failure to Address Findings of Preexisting Degeneration Wins Dismissal
• And Yet Again, Defendants' Expert's Finding of Significant Range-of-Motion Limitations Will Not Support Summary Judgment
• Regardless How Many Reports and Tests Are Proffered, if Unsworn or Unaffirmed They Will Not Support a Position 

AUDREY'S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

 

Litigation

• Department of Health & Human Services Codes Provided with Judicial Notice BUT Need Medical Evidence Regarding Lack of Causation
• Motion to Vacate Default Judgment Properly Granted - Insurer Remembered to Establish Meritorious Defense 

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper

[email protected] 

Insurance Department Anti-Steering OGC Opinion

 

EARL'S PEARLS

Earl K. Cantwell, II
[email protected]  

The Expert Merry-Go-Round

 

All the best and see you in LinkedIn.

 

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

 

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]

 

2/5/09              Nova Casualty Company v. Central Mutual Insurance Company

Appellate Division, Third Department
“Spray Painting Operations Exclusion” Does Not Apply to Painters Using Hand-Applied Sealant; “Word Product Exclusion” does not apply to Fire Caused by Storage of Rags when Work Completed

Bennett, who owns a painting business, and Pesano were hired by Catlett apply a protective sealant to the siding on the Catletts' home.  The sealants dripped on dropped cloths and the drop cloths were store in an enclosed porch.  A fire erupted and the Catletts claimed that the sealant on the drop cloths spontaneously combusted.  Central paid the property loss and then brought a subrogation claim against the painters. Nova insured Bennett and agreed to defend him in the lawsuit but disclaimed coverage citing two exclusions contained in the policy

There was a “painting operations” exclusion which specifically excluded from coverage any "bodily injury and property damage arising out of spray painting operations." The Third Department held that sealing wood is different from painting operations (and this product was being sprayed on, in any event) so that the exclusion was not applicable.  .

Nova also argued that a second exclusion in the policy was applicable, that “work product” exclusion that eliminated coverage for damage "to that specific part of real property on which work is being performed . . . if the 'property damage' arises out of such work."  Here, the Third Department (less convincingly held) that the Catletts' claim is not that they were damaged as the result of the quality of Bennett's work or that he misapplied the sealant to the siding of their home. The claim was that the home was damaged by a fire caused by the negligent manner in which Bennett and his employees stored materials and equipment used on the job after the sealant had been applied.  The exclusion is meant to apply to “those situations where coverage is sought "for contractual liability of the insured for economic loss because the product or completed work is not what the damaged person bargained for."

2/3/09              In the Matter of Liberty Mutual Insurance Company v Argueta

Appellate Division, Second Department
Failure to Move to Stay UIM Arbitration within 20 Days Bars Right to Raise Coverage Defenses

On February 13, 2006, Argueta, the driver, and Chavez, the passenger, were involved in a car accident.  They were in a car owned by Gonzalez and insured with Liberty.  That car collided with one owned by Hernandez, insured by Nationwide and in which Garcia was a passenger.  Argueta, Chavez and Gonzalez were injured.

The Liberty policy provided $25K/$50K is liability and SUM (underinsured/uninsured motorists benefits). Nationwide’s policy also provided $25K/50K liability limits.  Nationwide paid each of the three injured parties $16,666, exhausting the $50,000 liability limits. Argueta and Chavez sought additional SUM benefits from Liberty and Liberty moved to stay arbitration, but it was past the 20 days to do so.  Liberty has lost its right to deny that the policy provided additional coverage because it did not bring the application in time.
Editor’s Note:  The Appellate Division had no reason to reach the substantive question on the merits, although if all that was available to a claimant was $16,666, a good argument could be made that a claimant would be entitled to recover $8,334 in SUM benefits anyway.

2/3/09              Creinis v. Hanover Insurance Company
Appellate Division, Second Department

Word to the Wise – Don’t Allow a Default in Uninsured Motorists Proceeding and Expect to Relitigate the Matter Anew.  Fictional Policy has Minimum Limits Coverage

This is a direct action against Hanover.  We suppose it’s a victory, as the lower court found that a fictional $800,000 policy was in place and the Second Department found that the coverage would be limited to $25,000.

On January 16, 2000, the plaintiff, while driving her own vehicle, was struck and injured by a vehicle operated by Fashina. Plaintiff demanded uninsured motorist arbitration against her own insurer, but that insurer petitioned to stay the arbitration on the ground that the Fashina was insured by Hanover, because Hanover’s name was in the police accident report. Hanover was joined in the lawsuit, served with the petition paper, and chose to default. Based on the default, the court held that Hanover did, in fact, insure the car.

Hanover had second thoughts, moved to vacate the default, but by a previous order of the Appellate Division, that application was denied.

Plaintiff then sued the Fashinas and despite the order issued by default that it insured the car, Hanover refused to provide the Fashinas with defense counsel. Accordingly, the Fashina defaulted and an assessment hearing awarded plaintiffs $800,000. The judgment with notice of entry was served upon Hanover, but was not paid.

Plaintiff then commenced this direct action to recover the amount of the unsatisfied judgment. Hanover answered and asserted that it never issued a policy of insurance to the Fashinas.   Based on an earlier case, Kleynshvag, See our report on that decision here: /news/coverage-pointers-volume-vii-no-6, the court found that Hanover had an earlier chance to contest the policy’s existence and chose not to participate – and in fact default – in the UM proceeding.  That decision sealed its fate and was collateral estoppel. However, the court considered Hanover’s proof of the QUANTUM of coverage and since it was able to establish that it really did not issue a policy, limited Hanover’s liability to the minimum limits of $25,000 (not the $800,000 awarded by the lower court).  A dissenting judge took strong issue with the fact that the court was creating a non-existent policy.
Editor’s Note:  I repeat what I said when I reviewed Kleynshvag: a word of advice:  don’t “refuse to participate” in proceeding.  Frankly, the result is unfortunate but not surprising for Hanover. It chose not to participate in a proceeding where it could have easily established that it did not issue a policy.  It should have realized that once the matter was adjudicated against it, it could not get a second bite at the apple.

1/29/08            Liberty Mutual Insurance Company v. Frenkel

Appellate Division, Third Department
Where SUM Carrier Knew of Accident within Three Weeks of its Occurrence, paid No Fault Benefits and was Advised of Potential SUM Claim, Failure to Notify Carrier of Commencement of Third Party Lawsuit was Not Prejudicial
In October 2004, Frenkel was involved in an automobile accident when the vehicle he was driving was rear-ended by an automobile Syed and owned by Mohammed Ali. Three weeks after the accident, Frenkel’s lawyer sent a letter to Liberty, Frenkel’s insurer, notifying it that Frenkel had been injured in an automobile accident, had incurred medical expenses, lost wages from work and would be seeking no-fault benefits. The letter also stated that mentioned that, potentially, there may be an uninsured or underinsured claim, if the facts justified such a claim. Two years later, Frenkel’s lawyer notified Liberty that he was in the process of settling a lawsuit that Frenkel had commenced against Mohammed for the policy limits, sought consent to settle and indicated that an underinsured claim (SUM) would be made. Liberty denied coverage on late notice of his lawsuit against Ali, but also of his claim for SUM benefits.

 

Clearly Frenkel breached the policy’s requirement that he give prompt notice of a third-party suit. However, under the 2005 Court of Appeals decision in Rekemeyer, the insurer must demonstrate prejudice from the delay.  Here, Liberty knew of the accident within three weeks, knew of the no fault claim, knew of the potential for a SUM claim if the facts warranted, had a police report, etc.  With all that, Liberty was unable to establish that it suffered prejudice since it had enough information to conduct a thorough investigation.

 

1/29/09            Century Indemnity Company v. Brooklyn Union Gas Company
Appellate Division, First Department
Standard for Notice to Excess Carrier (Under Specific Policy Provisions) Differs than Standard for Primary Carrier
Question of fact about timeliness of notice to excess carrier.  Unlike policies that require notice if an occurrence "may result" in a claim, where the duty arises when the insured can "glean a reasonable possibility of the policy's involvement" this particular excess policy requires notice if the circumstances were "reasonably likely" to implicate the excess coverage.

 

1/20/09            In the Matter of Allstate Insurance Company v. Liberty Mutual Insurance
Appellate Division, Second Department
One Bite at the Apple to Confirm Arbitration Award
It appears that a carrier applied to confirm an inter-company arbitration award but did not provide sufficient information to the court, in the first go-round, to succeed.  Several months later, it renewed its application, submitting information it could and should have submitted the first time around.  “Too late,” says the court.  There is no reason offered for the failure to submit the information on the first application and no justification for waiting months to resubmit.

 

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

Margo M. Lagueras

[email protected]

 

2/03/09            Cohen v. Monteleone

Appellate Division, Second Department

Defendants’ Expert’s Finding of Significant Range-of-Motion Limitations Will Not Support Summary Judgment

Defendant’s own expert’s report affirmed the existence of significant limitations in the range-or-motion of plaintiff’s lumbar spine.  The court had no need to even consider plaintiff’s opposing papers as defendant made plaintiff’s case for him.

 

2/03/09            Bagot v. Singh

Appellate Division, Second Department

Again, Defendants’ Expert’s Finding of Significant Range-of-Motion Limitations Will Not Support Summary Judgment

Again, defendant’s own expert’s report affirmed the existence of significant limitations in the range-or-motion, this time of plaintiff’s left knee.  The court had no need to even consider plaintiff’s opposing papers as defendant made plaintiff’s case for him.

 

2/03/09            Azor v. Torado

Appellate Division, Second Department

Plaintiff’s Opposition to Summary Judgment Is Sufficient Where His Physician’s Report Covers All Bases

Plaintiff succeeds in getting a reversal.  Not only were his disc herniations and bulges causally related to the accident, but his treating physician quantified his significant cervical and lumbar range-of-motion restrictions and adequately explained the gap in treatment.

 

2/03/09            Crespo v. Aparicio

Appellate Division, Second Department

Another Treating Physician Who Knows What It Takes to Defeat Summary Judgment

Even though defendants met their respective prima facie cases, plaintiffs’ treating physician’s affirmations were sufficient to raise a triable issue of fact.  First, the reports of range-of-motion limitations were based on objective testing following both contemporaneous and recent examinations of plaintiffs.  Then, the doctor personally reviewed the plaintiffs’ MRI films and reports which revealed bulging discs and herniations, which he concluded were caused by the accident and permanent.  He opined that the injuries amounted to significant limitations of use of plaintiffs’ respective cervical and lumbar spines.  The doctor also addressed and disagreed with the findings of defendants’ radiologist of the existence of degeneration, and additionally, and just for good measure, explained any gaps in treatment. 

 

2/03/09            Liautaud v. Joseph

Appellate Division, Second Department

Defendants Fail Where They Fail to Establish Injuries Alleged in Plaintiff’s Bill of Particulars Are Not Causally Related to Accident

Defendants appealed and lost because they failed to prima facie show that the cervical spine, lumbar spine and right knee injuries that plaintiff alleged in her bill of particulars were not causally related to the accident or not serious injuries.

 

2/03/09            Muzashvili v. Vicente

Appellate Division, Second Department

Summary Judgment Survives on Both Liability and Serious Injury

Here defendants motions survive plaintiff’s appeal and the court affirmed that plaintiff failed to raise triable issues both as to liability and serious injury.

 

2/03/09            Hadley v. Keren

Appellate Division, Second Department

Defendants’ Prima Facie Showings Survive

Again, defendants prima facie showings that plaintiffs did not sustain a serious injury survive appeal as plaintiffs fail to raise a triable issue of fact in opposition.

 

2/03/09            Marte v. New York City Transit Authority

Appellate Division, Second Department

One Serious Injury Entitles Plaintiff to Seek Recovery for All Injuries

Plaintiff claimed under the permanent consequential limitation of use or significant limitation of use categories with regard to injuries to her cervical spine and right knee.  Since the trial court found triable issues of fact regarding whether she suffered a serious injury to her right ankle, on appeal the court determined she is entitled to seek recovery for all her injuries allegedly sustained in the accident.  However, because plaintiff did not allege injury to her lumbar spine in her bill of particulars, those claims must not be considered.

 

1/27/09            Giacomaro v. Wilson

Appellate Division, Second Department

Finding of Significant Range-of-Motion Limitation Defeats Summary Judgment

Defendants’ own expert, an orthopedic surgeon, examined plaintiff and noted she had a significant limitation in the range-of-motion of her right shoulder.  As such, the court reversed the trial court’s grant of summary judgment to defendants, on the law, noting that defendants failed to meet their prima facie burden of showing plaintiff did not suffer a serious injury as a result of the accident.

 

1/27/09            Miller v. Bah

Appellate Division, Second Department

Examination Over 2 Years after Accident Fails to Rebut Claim under 90/180-Day Category

Here again plaintiff wins a reversal of the trial court’s grant of summary judgment to defendant.  Plaintiff claimed, in his bill of particulars, under the 90/180-day category of serious injury, that he was incapacitated from his work from June 28, 2004 through October 4, 2004 and “intermittently thereafter”.  Defendant failed to meet his prima facie burden because his experts did not examine plaintiff until 2½ years after the accident and neither related his findings to the 90/180-day claim.

 

1/27/09            Carr v. KMO Transportation, Inc.

Appellate Division, Second Department

Defendants’ Experts’ Failure to Address Serious Injury Categories Alleged in Plaintiff’s Bill of Particulars Results in Reversal

In plaintiff’s Bill of Particulars, she claimed under the 90/180-day category and stated that, as a result of the accident, she was out of work for five months.  Defendants’ experts did not examine plaintiff until one year and nine months after the accident and did not address this category in their reports.  Moreover, their reports opined that plaintiff’s injuries were the result of preexisting degeneration but addressed only plaintiff’s cervical and lumbar spine.  Plaintiff, however, also claimed injury to her right shoulder, an injury also not addressed.  Although defendants’ examining experts opined that plaintiff had full range-of-motion in her right shoulder, those findings were made one year and nine months after the accident and no opinion was offered as to whether the right shoulder injury prevented plaintiff from working during the five months after the accident.  As such, defendants failed to meet their prima facie burdens.

 

1/27/09            Luizzi-Schwenk v. Singh

Appellate Division, Second Department

Affirmed MRI Reports Revealing Herniated Discs Must Set Forth Opinion as to Causation

Plaintiff claimed under the permanent limitation and/or significant limitation of use categories but failed to submit any competent medical evidence revealing a significant range-of-motion limitation of her lumbar spine that was contemporaneous with the accident, nor did she offer any medical evidence based on a recent examination.  As for the affirmed MRI report, the court reiterated the well-established rule that the mere existence of herniated or bulging discs is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration.  Neither of plaintiff’s experts opined as to the cause of the herniated or bulging discs in their reports.

 

1/27/09            Smith v. Matinale

Appellate Division, Second Department

Affirmations of Treating Orthopedist, Neurologist and Radiologist Raise Triable Issue of Fact

Here defendants submitted plaintiff’s own deposition testimony as well as the affirmed reports of their examining physicians.  In opposition, plaintiff submitted affirmations of her treating orthopedist, neurologist and radiologist, which were sufficient to raise a triable issue of fact.  In Addition, both the plaintiff’s affidavit and her orthopedist adequately explained the gaps in her treatment.

 

1/20/09            Dong Soo Kim v. Kottler

Appellate Division, Second Department

Contemporaneous and Recent Examinations Concluding Injuries Are Permanent and Causally Related Raise Triable Issue of Fact

On appeal plaintiff won a reversal as he raised a triable issue of fact under the permanent consequential and/or significant limitation of use categories.  Plaintiff’s treating physician, based on his contemporaneous and recent examination and his review of MRI reports showing bulging discs in the cervical and lumbar spine and a herniated disc in the lumbar spine, opined that plaintiff’s range-of-motion limitation were permanent and causally related to the accident, and that the injuries amounted to a permanent consequential, as well as a significant limitation of use, of those regions. 

 

1/20/09            Ferebee v. Sheika

Appellate Division, Second Department

Affirmed Medical Examinations Which Rely on Unsworn MRI Reports Lack Probative Value

The order is reversed and the complaint dismissed where the MRI proffered by plaintiff was not sworn or affirmed, and the affirmed medical examination reports submitted relied on that unsworn MRI.  Furthermore, defendants’ radiologist concluded that plaintiff’s injuries to his cervical spine, lumbar spine and right shoulder were the result of degenerative disease and not the accident.  The affirmed reports of plaintiff’s experts did not address these findings which rendered speculative their conclusions that the injuries were the result of the accident nor did they explain the more than two-year gap in treatment.

 

1/20/09            Gibson-Wallace v. Dalessandro

Appellate Division, Second Department

Test Results Must Be Compared to Normal Range and Correctly Correlated

Here it is the plaintiff that wins a reversal.  The defendants all relied on the same affirmed medical report of an orthopedic surgeon who noted that plaintiff was able to forward flex to 60 degrees in the cervical spine.  He did not, however, compare that finding to the normal range he provided, which was “chin to the chest” for cervical forward flexion.  As such, he failed to correlate the “chin to the chest” to his finding of forward flex to 60 degrees.  Also fatal to defendants’ motion was the report of their neurologist who noted significant cervical and lumbar range-of-motion limitations more than two years after the accident.

 

1/20/09            Gochnour v. Quaremba

Appellate Division, Second Department

Range-of-Motion Limitations Must Be Quantified to Support Assertions

Defendant won a reversal.  Plaintiff’s treating physician affirmed that plaintiff had limited range-of-motion in her cervical and lumbar spine when he examined her shortly after the accident, but he did not provide any quantified findings to support his assertions.  He also did not provide any objective evidence of the extent or duration of the physical limitations regarding the bulging discs he observed in an MRI of her spine.  A serious injury cannot be established through a plaintiff’s self-serving affidavit.

 

1/20/09            Jin Mei Liu v. Lamberta

Appellate Division, Second Department

Dismissal Stands

No facts offered other than so say that the plaintiff appealed and lost.

 

1/20/09            Joseph v. A & H Livery

Appellate Division, Second Department

Failure to Acknowledge Prior Accident Renders Conclusions Speculative

The trial court’s order is reversed and the complaint is dismissed.  Plaintiff’s treating orthopedist noted significant range-of-motion limitations based on his recent examination but no evidence of such limitations that was contemporaneous with the accident was proffered, rendering the orthopedist’s conclusions, that the injuries were the result of the accident, merely speculative.  In addition, while the affirmed MRI report established the existence of bulging and herniated discs one month after the accident, there was no objective evidence of the extend and duration of the limitations.  Plaintiff’s self-serving affidavit will not satisfy that requirement.

 

1/20/09            Levine v. Deposits Only, Inc.

Appellate Division, Second Department

Plaintiff’s Failure to Address Findings of Preexisting Degeneration Wins Dismissal

Defendants win a reversal where their examining radiologist determined that the condition of plaintiff’s cervical and lumbar spines and right shoulder was the result of preexisting degeneration and not the accident, and plaintiff’s medical submissions did not address those findings.

 

1/20/09            Locke v. Buksh

Appellate Division, Second Department

And Yet Again, Defendants’ Expert’s Finding of Significant Range-of-Motion Limitations Will Not Support Summary Judgment

In case someone missed the subtle point, defendants appealed and lost again where they relied on the affirmed medical report of their examining orthopedic surgeon who noted significant limitations in the plaintiff’s lumbar spine range-of-motion.  No need to even look at plaintiff’s submissions when defendants hand him the victory on a platter.

 

1/20/09            Luna v. Mann

Appellate Division, Second Department

Regardless How Many Reports and Tests Are Proffered, if Unsworn or Unaffirmed They Will Not Support a Position

Plaintiffs proffered reports, EMG reports and computerized range-of-motion test reports.  All were determined to lack any probative value as none were sworn or affirmed.  In addition, the affirmation of plaintiff’s treating orthopedist was similarly insufficient as it was based solely on the unsworn or unaffirmed reports and tests.  The affirmed MRI report also failed because, although it revealed bulging and herniated discs, it provided no objective evidence of the extent or duration of the alleged limitations.  Again, a self-serving affidavit by a plaintiff will not cure these defects.

 

AUDREY’S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

 

Litigation

1/20/09            Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co.,

Appellate Division, Second Department

Department of Health & Human Services Codes Provided with Judicial Notice BUT Need Medical Evidence Regarding Lack of Causation

On July 3, 2006, Mr. Hafford was injured in a motor vehicle accident and was treated at White Plains Hospital Center until August 22, 2006.  On November 7, 2006, the hospital sent a UB-92 form and an NF-5 to the no-fault insurer, Allstate, demanding payment of the bill in the amount of $26,979.83.  The UB-92 form did contain codes to identify the diagnosis made and the treatment provided to him.

 

The hospital contended that Allstate failed to pay or deny the bill, which was due December 8, 2006.  The hospital commenced a suit against Allstate for payment of the outstanding bill.  Allstate alleged 11 affirmative defenses, including an affirmative defense that Mr. Hafford’s treatment did not arise out of the use or operation of an insured vehicle.

 

The hospital moved for summary judgment and Allstate cross-moved for summary judgment on the ground that the treatment did not arise out of the use or operation of an insured vehicle.  Allstate, in support of its cross-motion, submitted diagnosis and procedure codes from the US Department of Health and Human Service’s website.  Allstate requested the trial court take judicial notice, pursuant to CPLR 4511, of the codes and their definitions as public documents.

 

A review of the codes revealed that Mr. Hafford was diagnosed and treated at the hospital for “rapid heart rate associated with infection, acute and chronic respiratory failure, heart damage cause by alcoholism, convulsions, potassium deficiency, blood poisoning, and brain damage cause by lack of oxygen.”

 

Allstate argued, without a medical expert’s affidavit, that the codes could not relate to any injury for the accident.  The hospital argued that the codes could not be judicially noticed as the codes do not rest upon knowledge or sources widely accepted as unimpeachable.  It further argued that Allstate failed to set forth a medical expert to render the opinion that the injuries were not related to the accident.

 

The trial court granted plaintiff’s motion and denied Allstate’s motion.  This appeal on the issue of whether the trial court should have taken judicial notice of the codes and definitions from the US Dept. of Health and Human Services website.

 

The Appellate Division held that the codes and definitions should have been provided with judicial notice under CPLR 4511.  The Court reasoned that the codes, while they may not be understood by a lay person, contain information from a reliable source that is widely accepted. 

 

Despite this finding, Allstate failed to come forward with evidence that the treatment was not causally related to the accident.  The codes and definitions alone were not sufficient to meet Allstate’s burden of demonstrating that the treatment was not casually related to the accident.

 

1/27/09            Westchester Med. Ctr. a/a/o Diedre Walsh v. Hartford Cas. Ins. Co.

Appellate Division, Second Department

Motion to Vacate Default Judgment Properly Granted – Insurer Remembered to Establish Meritorious Defense

The trial court did not abuse its discretion in granting the insurer’s motion to vacate a default judgment.  The insurer demonstrated that its employee reasonably believed that the action was discontinued after advising counsel that the no-fault benefits were exhausted.  Also, the insurer demonstrated in its motion that the policy limits had been partially exhausted.  Accordingly, the insurer demonstrated a meritorious defense to the suit. 

 

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper

[email protected]

 

As many of you know already, Insurance Law § 2610 governs a carrier’s contact with an insured regarding repairs to covered vehicles.  This “anti-steering” provision, as it is commonly referred, precludes a carrier from suggesting a repair shop to an insured.  However, when charged with implementing this provision, the Insurance Department promulgated several regulations which provide the carrier, in limited circumstances, the ability to do just that.

 

Recently, the Office of General Counsel to the Insurance Department issued a memorandum which seeks to provide a synopsis on “anti-steering” protections, and the related requirement to issue a Notice of Rights letter to the insured when vehicle repairs cannot be immediately negotiated. 

 

The Process – the Notice of Rights letter

 

Initially, as mandated by the Insurance Law, the implementing regulations require that the insured be given the opportunity to designate a repair shop of his or her choosing.  At that point, the carrier becomes free to negotiate with the insured’s selected shop in an effort to reach a mutually agreeable resolution to the repairs.

 

It should be noted that the Insurance Department regulations require the carrier to negotiate with the insured’s selected repair shop in good faith.  However, the carrier need not feel compelled to compromise on its required labor rates or other commonly negotiated issues.  Your author wonders aloud how refusing to compromise on any aspect of a negotiation can be deemed “good faith negotiation”, but alas, that is the rule as it was adopted. 

 

In any event, should the negotiations between the insured’s designated repair shop and the carrier eventually breakdown, the carrier must then negotiate directly with the insured, or the insured’s designated agent.  Assuming these negotiations are likewise fruitless, the carrier may next proceed with issuing what is known as a Notice of Rights letter. 

 

The Notice of Rights letter serves to memorialize the stalled negotiations prior to the next step in the adjustment process.  Along with the Notice of Rights, the carrier is also required to provide what is know as a Insurance Law § 2610 disclosure statement. Within the disclosure statement, the carrier must also provide a “request recommendation” option for the insured.  The request recommendation permits an insured to affirmatively request the carrier to provide the identities and addresses of designated repair shops. 

 

It is upon receipt of a “request recommendation” form that a carrier may finally suggest a repair shop to its insured.  The carrier designated repair shop must be conveniently located for the insured, must be equipped to perform the necessary repairs, and repair the damaged vehicle at the carrier’s suggested price. 

 

Recent Comment – the Office of General Counsel’s recent memorandum

 

In an effort to shore up the obvious confusion on the process, the Office of General Counsel at the Insurance Department recently issued a memorandum which seeks to clarify some of the murkier points. 

 

First, the OGC indicated that, under the proscribed regulations, a carrier must attempt to negotiate with the insured directly prior to issuing a Notice of Rights letter.  This is the case even where the carrier has already attempted, and failed, to negotiate an agreeable settlement with the repair shop.

 

Secondly, the OGC reiterated its position that regardless of who selected the initial repair shop, a Notice of Rights letter must be provided to the insured anytime there is a failure to resolve the matter with the original repair shop. 

 

Finally, with respect to the carrier’s obligation to negotiate in good faith, the OGC’s memorandum reiterates that the duty does not require the carrier to compromise upon such negotiable items as labor rate.

 

The Claims Professional’s Checklist Moving Forward:

 

• Negotiate with the First Repair Shop (if that fails);
• Negotiate with the Insured (if that fails);
• Issue the Notice of Rights letter with the 2610 disclosure statement;
• Await the return of the acknowledged and authorized request recommendation section of the 2610 disclosure statement;
• Assuming the insured requests a recommendation, provide the name of a designated repair shop that is convenient for the insured, and which will perform the work pursuant to the carrier’s payment guidelines.

 

EARL’S PEARLS

Earl K. Cantwell, II
[email protected]

 

THE EXPERT MERRY-GO-ROUND

 

Based on a year long process, a proposed rule change to the Federal Rules of Civil Procedure governing expert witnesses could reach the U.S. Supreme Court by the end of 2009. There is a February 17, 2009 deadline for public comment with respect to the proposed new rules which address disclosure and discovery of trial experts. The proposed changes have met with mixed reviews, with some organizations and attorneys generally supportive but also a concerted

letter-writing campaign being mounted by rule opponents.

 

In essence, the proposed changes to the rules extend work product protection to drafts of expert reports and party disclosures, and also protect attorney-expert communications. The rules would be amended to create a new obligation on a party to disclose the subject matter of expected expert testimony and a summary of the expert's expected facts and opinions. The rules would be

amended to extend work product protection to drafts of expert reports, drafts of party disclosures, and communications, oral and written, between expert witnesses and counsel.

 

The impetus behind the proposed amendments is the fact that courts have often interpreted the Federal Rules to allow parties to inquire into all communications between experts and counsel with perceived multiplication of expense and complexity in litigation. Some organizations and practitioners complained that, under the current rules, it often requires retaining two experts -

one to testify and the other to provide closer consultation with counsel. Having to retain non-testifying experts is costly but often used for reviews and explorations that are "to risky" to pursue with a witness expected to testify at trial. Opponents of the proposed amendments complain that all information between attorneys and experts, and relating to the hiring of experts, should be disclosed and that the proposed new rules move in the wrong direction.

 

With respect to the changes concerning work product protection, the impetus for the amendment is a perceived disparity and inconsistency in judicial rulings about whether to protect draft expert witness reports and draft discovery responses from disclosure, particularly in protracted and complicated litigation.

 

If further changes are considered to the proposed amendments, they may be referred back to committee but under the present timeline the proposed changes would go to the U. S. Supreme Court for approval in time for the October 2009 session.

 

In general, proponents of the new amendments suggest that new rules will promote consistency, lessen motion practice and dispute, and allow more open communications between counsel and expert witness. Opponents of the new rules claim that information will be hidden with respect to communications to and from the expert, not being able to see draft expert reports may hide

significant information or changes in opinions and conclusions, and will prevent or dilute inquiry on cross-examination into the relationship between opposing counsel and the testifying expert. Opponents complain that the rule begins to make an expert not an independent party but rather treats the expert more like a client for discovery purposes.

 

DUQUIN – THE DUKE OF LEAD

Scott M. Duquin
[email protected] 

 

LEAD the Lingering Litigation

 

Scott is drafting his last article, in collaboration with Steve Peiper, on lead paint coverage issues.  Watch for the article in our next edition.

 

ACROSS BORDERS

 

1/29/09            Plastics Engineering v. Liberty Mutual Ins. Com

Wisconsin Supreme Court
Wisconsin Adopts “All Sums Allocation”

On January 29, 2009, the Wisconsin Supreme Court issued a decision in Plastics Engineering Co. v. Liberty Mutual Insurance Company, 2009 WI 13 (on certification from the Seventh Circuit).  The court rejected Liberty Mutual’s argument that Plastic Engineering’s marketing and distribution of asbestos-containing products constituted only one occurrence despite the numerous persons claiming injury; instead, the court concluded that each claimant’s exposure constituted one occurrence.  The court also concluded that Wis. Stats. Sec. 631.43(1) (governing “other insurance” clauses) applies only to concurrent, not successive, policies.  Finally, the court held that the “all sums” approach to allocation governed Liberty Mutual’s indemnity and defense obligations with regard to the claimants’ long-term exposure injuries.  The court rejected a “pro rata” approach because Liberty Mutual’s policy language did not contain any pro rata language, and also because a provision regarding injuries occurring “partly before and partly within” the policy period indicated that Liberty Mutual contemplated coverage for injuries occurring outside of its policy period.   Further, the court held that the requirement that injury occur during the policy period related only to the trigger of coverage and was not a limitation on the scope of coverage.  The court concluded that, once Liberty Mutual’s policy was triggered, it was required to pay “all sums” that arise out of the injury, up to the policy limits.  Justice Abrahamson concurred while the court’s newest Justice, Justice Gableman, dissented as to the allocation issue.
Submitted by: Susan B.Tyndall,  CMT Legal Group, Ltd.

 

1/28/09            Safeco Insurance Company of America v. Parks

California Court of Appeals

Insurer’s Failure to Search for Other Applicable Insurance Policies Unreasonable
Sixteen-year old Michelle Miller had been driving Park’s car to toward his house when it developed a flat tire. Miller and Parks were then given a ride by Cooney and Rivera. Parks (who was drunk) was forced out of Cooney’s car because he was being violent. Parks was then stuck and severely injured by another vehicle as he walked back to his car. Miller lived with her father at her paternal grandmother’s condominium but sometimes would stay at her mother’s boyfriend’s (Barnette) home, where her mother lived. Parks sued Cooney, Rivera and Miller. Cooney’s automobile insurer provided a defense for all three and settled the claims against Cooney and Rivera. Miller submitted the claim under a homeowner’s policy issued by Safeco Insurance Company to Barnette. Safeco declined to assume the defense of Miller and refused a demand for policy limits. Miller proceeded to binding arbitration with Parks, which arbitration resulted in an award of $2.2 million. Miller then settled with Parks by assigning her rights against Safeco. Safeco filed and prevailed on a declaratory judgment action relating to the Barnette policy. While that declaratory judgment action was pending, Miller determined that Safeco had also issued a homeowner’s policy to her grandmother and submitted the claim to Safeco under the Miller policy. Safeco determined there was coverage under the Miller policy and tendered policy limits to Parks. Parks persisted with his bad faith claim against Safeco for failing to settle for limits after notice under the Barnette policy. The Court of Appeals affirmed the finding of bad faith, holding that it was unreasonable for Safeco to not search for other applicable policies it may have issued.

Submitted by: Carlos Del Carpio

 

 

REPORTED DECISIONS

 

In the Matter of Allstate Insurance Company v. Liberty Mutual Insurance

 

Robert G. Mazeau, New York, N.Y. (James Mermigis and Lisa G.
Kim of counsel), for appellant.
Malapero & Priso LLP, New York, N.Y. (Dhruv A. Dhavan and
Ian Forman of counsel), for
respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to confirm an arbitration award, the petitioner appeals from an order of the Supreme Court, Rockland County (Garvey, J.), entered January 7, 2008, which denied its motion for leave to renew the petition to confirm the award, which was denied in an order of the same court dated November 22, 2006.

ORDERED that the order is affirmed, with costs.

Although a motion for leave to renew generally must be based on newly-discovered facts, this requirement is a flexible one, and a court has the discretion to grant renewal upon facts known to the movant at the time of the original motion, provided that the movant offers a reasonable justification for the failure to submit the additional facts on the original motion (see Matter of Gold v Gold, 53 AD3d 485, 487; Matter of Surdo v Levittown Pub. School Dist., 41 AD3d 486; Heaven v McGowan, 40 AD3d 583; Allstate Ins. Co. v Davis, 23 AD3d 418). Nevertheless, "[a] motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Elder v Elder, 21 AD3d 1055, 1055; see Lardo v Rivlab Transp. Corp., 46 AD3d 759; Matter of Leyberman v Leyberman, 43 AD3d 925).

Contrary to the petitioner's contention, the Supreme Court did not improvidently exercise its discretion in denying its motion for leave to renew. The petitioner's motion was based upon evidence that either was in its possession at the time its petition to confirm the arbitration award was brought, or could have been obtained earlier with due diligence, and it did not sufficiently justify, inter alia, its failure to attach a copy of the award it was seeking to confirm to its petition. Moreover, the petitioner failed to offer a reasonable justification for its eight-month delay in moving for leave to renew to correct various deficiencies in the petition, which included the failure to submit a copy of the arbitration award (see Christ v Solomon, 6 AD3d 569; Matter of Tri-State Consumer Ins. Co. v Singh, 297 AD2d 349; Cole-Hatchard v Grand Union, 270 AD2d 447, 448).

Dong Soo Kim v. Kottler

Sim & Park, LLP, New York, N.Y. (Sang J. Sim of counsel), for
appellant.
John P. Humphreys, Melville, N.Y. (Dominic P. Zafonte of
counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.), entered November 26, 2007, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

The defendant met her prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff raised a triable issue of fact as to whether he sustained serious injuries to his cervical and/or lumbar spine under the permanent consequential and/or the significant limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident (see Williams v Clark, 54 AD3d 942; Casey v Mas Transp., Inc., 48 AD3d 610; Green v Nara Car & Limo, Inc., 42 AD3d 430). The plaintiff's treating physician, Dr. Jae O. Park, opined, based on his contemporaneous and more recent examinations of the plaintiff, as well as upon his review of the plaintiff's magnetic resonance imaging reports, which showed, inter alia, disc bulges in the cervical and lumbar spine as well as a disc herniation in the lumbar spine, that the plaintiff's lumbar and cervical injuries and observed range of motion limitations were permanent, and causally related to the subject accident.  He further concluded that the injuries amounted to a permanent consequential limitation of use of the cervical and lumbar spine as well as a significant limitation of use of those regions.

Contrary to the defendant's assertions, the plaintiff's affidavit adequately explained any lengthy gap in his treatment history (see Black v Robinson, 305 AD2d 438).
RIVERA, J.P., FLORIO, ANGIOLILLO, McCARTHY and CHAMBERS, JJ., concur.

Ferebee v. Sheika

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Holly E. Peck of counsel), for appellants.
Michael M. Goldberg, P.C., New York, N.Y. (Frank H. Guzman
of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants Helal Sheika and Paolo Salvo appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), entered February 14, 2008, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff Roland Ferebee did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion of the defendants Helal Sheika and Paolo Salvo for summary judgment dismissing the complaint insofar as asserted against them is granted and, upon searching the record, summary judgment is awarded to the defendants Jhasmine Rios and Sosa Pablo dismissing the complaint insofar as asserted against them.

The defendants Helal Sheika and Paolo Salvo met their prima facie burden of establishing that the plaintiff Roland Ferebee (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; see also Giraldo v Mandanici, 24 AD3d 419). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the injured plaintiff sustained such an injury.

The magnetic resonance imaging (hereinafter MRI) reports of Dr. Mark Shapiro and the report of Dr. Joel Mittleman dated October 21, 2005, were without any probative value in opposing the appellants' motion since those submissions were neither affirmed nor sworn to (see Grasso v Angerami, 79 NY2d 813; Uribe-Zapata v Capallan, 54 AD3d 936; Choi Ping Wong v Innocent, 54 AD3d 384; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; Pagano v Kingsbury, 182 AD2d 268).

The affirmed medical examination report of Dr. Mittleman dated October 5, 2007, and the affirmed medical examination reports of Dr. Aric Hausknecht dated August 23, 2005, and September 27, 2005, were without any probative value as they clearly relied on the unsworn MRI reports of Dr. Mark Shapiro in coming to the conclusions contained therein (see Sorto v Morales, 55 AD3d 718; Malave v Basikov, 45 AD3d 539; Furrs v Griffith, 43 AD3d 389; see also Friedman v U-Haul Truck Rental, 216 AD2d 266, 267).

In any event, none of the injured plaintiff's experts addressed the findings of the appellants' radiologist, who concluded that the injuries to the injured plaintiff's cervical spine, lumbar spine, and right shoulder were the result of pre-existing degeneration and not the subject accident. Therefore, the conclusions of Dr. Mittleman and Dr. Hausknecht that the limitations and injuries in the cervical spine, lumbar spine, and right shoulder were caused by the subject accident were rendered speculative in light of this omission (see Cornelius v Cintas Corp., 50 AD3d 1085; Marrache v Akron Taxi Corp., 50 AD3d 973; Giraldo v Mandanici, 24 AD3d 419).

Furthermore, neither the injured plaintiff nor the injured plaintiff's experts adequately explained the more than two-year gap in time between the injured plaintiff's last examination by Dr. Hausknecht on September 27, 2005, and his most recent examination by Dr. Mittleman on October 5, 2007 (see Pommells v Perez, 4 NY3d 566; Berktas v McMillian, 40 AD3d 563; Waring v Guirguis, 39 AD3d 741; Phillips v Zilinsky, 39 AD3d 728). Accordingly, the Supreme Court should have granted the motion of Helal Sheika and Paolo Salvo for summary judgment dismissing the complaint insofar as asserted against them.

Moreover, this Court has the authority to search the record and award summary judgment to a nonappealing party with respect to an issue that was the subject of the motion before the Supreme Court (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430; Michel v Blake, 52 AD3d 486; Marrache v Akron Taxi Corp., 50 AD3d 973; Colon v Vargas, 27 AD3d 512, 514). Upon searching the record, we award summary judgment to the defendants Jhasmine Rios and Sosa Pablo dismissing the complaint insofar as asserted against them (see CPLR 3212[b]) on the ground that the plaintiffs failed to raise a triable issue of fact as to whether the injured plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.
RIVERA, J.P., FLORIO, ANGIOLILLO, McCARTHY and CHAMBERS, JJ., concur.

Gibson-Wallace v. Dalessandro

Daniel P. Buttafuoco & Associates, PLLC, Woodbury, N.Y. (Ellen
Buchholz of counsel), for appellant.
Picciano & Scahill, P.C., Westbury, N.Y. (Gilbert J. Hardy and
Francis J. Scahill of counsel), for
respondent Robert J. Dalessandro.
DeSena & Sweeney, LLP, Hauppauge, N.Y. (Shawn P.
O'Shaughnessy of counsel), for respondent
Chase Manhattan Automotive Finance
Corporation.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff Dale Gibson-Wallace appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), entered June 29, 2007, as granted those branches of the respective motions of the defendants which were for summary judgment dismissing the complaint insofar as asserted by her against them on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable to the plaintiff Dale Gibson-Wallace, and those branches of the defendants' separate motions which were for summary judgment dismissing the complaint insofar as asserted by the plaintiff Dale Gibson-Wallace against them on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) are denied. 

The Supreme Court erred in finding that, on their respective motions, each of the defendants met their prima facie burden with respect to the plaintiff Dale Gibson-Wallace (hereinafter the appellant) by showing that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their separate motions, both defendants relied upon the affirmed medical report of Dr. Vartkes Khachadurian, an orthopedic surgeon, who noted, during cervical spine testing on June 14, 2006, that the appellant was able to forward flex to 60 degrees in the cervical spine, but failed to adequately compare that finding to the normal range he provided (see generally Barrera v MTA Long Is. Bus, 52 AD3d 446). In this respect, Dr. Khachadurian noted that "chin to the chest" was normal for cervical forward flexion, but failed to correlate that to his finding that the appellant was able to forward flex to 60 degrees.

The defendant Robert J. Dalessandro further relied on the affirmed medical report of Dr. Matthew Chacko, a neurologist, who noted significant limitations in the appellant's cervical and lumbar spine ranges of motion based upon his examination that took place more than two years after the subject accident occurred (see Hurtte v Budget Roadside Care, 54 AD3d 362; Perry v Brusini, 53 AD3d 478; Moorer v Amboy Bus Co., Inc., 52 AD3d 587).

Since the defendants did not meet their prima facie burdens of establishing their entitlement to judgment as a matter of law, we need not address the question of whether the papers submitted by the appellant were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538).
RIVERA, J.P., FLORIO, ANGIOLILLO, McCARTHY and CHAMBERS, JJ., concur.

Gochnour v. Quaremba

Stockschlaeder, McDonald & Sules, P.C., New York, N.Y.
(Richard T. Sules of counsel), for appellant.
Joseph D'Amico, Staten Island, N.Y., for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Richmond County (Maltese, J.), dated October 26, 2007, which denied his motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Sandra Gochnour-DeBernardo on the ground that she 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 insofar as asserted by the plaintiff Sandra Gochnour-DeBernardo on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is granted.

The defendant met his prima facie burden of showing that the plaintiff Sandra Gochnour-DeBernardo (hereinafter the plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). In opposition, the plaintiff failed to raise a triable issue of fact. While the plaintiff's treating physician indicated, in his affirmation, that he found a limited range of motion in her cervical and lumbar spine when he examined the plaintiff shortly after the accident, he failed to provide any quantified findings to support his assertions (see Fiorillo v Arriaza, 52 AD3d 465, 466; Duke v Saurelis, 41 AD3d 770, 771). Moreover, although the physician stated that he had observed bulging discs in the magnetic resonance imaging films and report of the plaintiff's spine, the mere existence of a bulging disc is not conclusive evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration (see Pommells v Perez, 4 NY3d 566, 574; Sealy v Riteway-1, Inc., 54 AD3d 1018; Kearse v New York City Transit Authority, 16 AD3d 45, 50). Finally, in the absence of any competent medical evidence, the plaintiff's self-serving affidavit was insufficient to demonstrate the existence of a serious injury (see Duke v Saurelis, 41 AD3d 770).
RIVERA, J.P., FLORIO, ANGIOLILLO, McCARTHY and CHAMBERS, JJ., concur.

Jin Mei Liu v. Lamberta

Michael A. Cervini, P.C. (Lisa M. Comeau, Garden City, N.Y.,
of counsel), for appellants.
Richard T. Lau & Associates, Jericho, N.Y. (Marcella Gerbasi
Crewe of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (R. Doyle, J.), entered October 25, 2007, which, upon an order of the same court dated August 23, 2007, granting the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff Jin Mei Liu did not sustain a serious injury within the meaning of Insurance Law § 5102(d), dismissed the complaint.

ORDERED that the judgment is affirmed, with costs.

The defendant met her prima facie burden of showing that the plaintiff Jin Mei Liu 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.

Joseph v. A and H Livery

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Timothy M. Sullivan of counsel), for appellants.
Harmon, Linder & Rogowsky, New York, N.Y. (Mitchell
Dranow of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants A and H Livery and Jean Ermilus appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Bayne, J.), dated March 19, 2008, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendants A and H Livery and Jean Ermilus for summary judgment dismissing the complaint insofar as asserted against them is granted.

The defendants A and H Livery and Jean Ermilus (hereinafter together the defendants) met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). Contrary to the Supreme Court's determination, in opposition, the plaintiff failed to raise a triable issue of fact.

While the report of Dr. Jerry Lubliner, the plaintiff's treating orthopedist, set forth significant range-of-motion limitations in the plaintiff's cervical and lumbar spine based on a recent examination, the plaintiff failed to proffer competent medical evidence revealing the existence of limitations in these regions of his spine that were roughly contemporaneous with the subject accident (see Leeber v Ward, 55 AD3d 563; Ferraro v Ridge Car Serv., 49 AD3d 498; D'Onofrio v Floton, Inc., 45 AD3d 525; Borgella v D & L Taxi Corp., 38 AD3d 701, 702). Moreover, Dr. Lubliner failed to acknowledge that the plaintiff sustained injuries to his neck and back as a result of a prior accident. Accordingly, Dr. Lubliner's conclusions that the injuries and limitations noted in the plaintiff's cervical and lumbar spine resulted from the subject accident were merely speculative (see Rabolt v Park, 50 AD3d 995; Penaloza v Chavez, 48 AD3d 654; Zinger v Zylberberg, 35 AD3d 851; Bennett v Genas, 27 AD3d 601; Allyn v Hanley, 2 AD3d 470).

The affirmed magnetic resonance imaging (hereinafter MRI) reports of Dr. Mark Shapiro also failed to raise a triable issue of fact. Dr. Shapiro's reports merely established that as of November 17, 2003, and November 25, 2003, approximately one month after the subject accident, the plaintiff had disc bulges at C3-4, C4-5, C5-6, C6-7, and L4-5, as well as a disc herniation at L5-S1. The mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration (see Sealy v Riteway-1, Inc., 54 AD3d 1018; Kilakos v Mascera, 53 AD3d 527; Cerisier v Thibiu, 29 AD3d 507; Kearse v New York City Tr. Auth., 16 AD3d 45). The plaintiff's self-serving affidavit was insufficient to satisfy that requirement (see Rabolt v Park, 50 AD3d 995; Young Soo Lee v Troia, 41 AD3d 469; Nannarone v Ott, 41 AD3d 441).

The plaintiff's remaining submissions did not constitute competent evidence sufficient to oppose the defendants' motion since they were unsworn, unaffirmed, or uncertified (see Grasso v Angerami, 79 NY2d 813; Uribe-Zapata v Capallan, 54 AD3d 936; Patterson v NY Alarm Response Corp., 45 AD3d 656; Nociforo v Penna, 42 AD3d 514; Borgella v D & L Taxi Corp., 38 AD3d at 702).

Finally, the plaintiff failed to submit competent medical evidence that he sustained a medically-determined injury of a nonpermanent nature that prevented him from performing his usual and customary activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Eldrainy v Hassain, 56 AD3d 419; Penaloza v Chavez, 48 AD3d 654; Sainte-Aime v Ho, 274 AD2d 569, 570).
RIVERA, J.P., FLORIO, ANGIOLILLO, McCARTHY and CHAMBERS, JJ., concur.

Levine v. Deposits Only, Inc.

Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of
counsel), for appellants.
Geller & Siegel, LLP (Pollack, Pollack, Isaac & De Cicco, New
York, N.Y. [Brian J. Isaac and Jillian
Rosen], 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, Nassau County (Parga, J.), dated March 20, 2008, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and granted the plaintiff's 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 granted, and the plaintiff's cross motion is denied as academic.

This action arises from a collision involving a motor vehicle operated by the plaintiff and a truck owned by the defendant Deposits Only, Inc., and operated by the defendant Robert Kellett.

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 Toure v Avis Rent A Car Sys., 98 NY2d 345, 352; Gaddy v Eyler, 79 NY2d 955, 956-957; D'Alba v Yong-Ae Choi, 33 AD3d 650). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's medical submissions failed to address the finding of the defendants' examining radiologist that the condition of the plaintiff's cervical and lumbar spines and right shoulder resulted from pre-existing degeneration and was not caused by the subject accident (see Larkin v Goldstar Limo Corp., 46 AD3d 631). Accordingly, the Supreme Court should have granted the defendants' motion and denied the plaintiff's cross motion as academic.
FISHER, J.P., MILLER, CARNI and BALKIN, JJ., concur.

Locke v. Buksh

Baker, McEvoy, Morrissey & Moskovits, P.C. (Stacy R. Seldin of
counsel), for appellants.
Harmon, Linder & Rogowsky, New York, N.Y. (Mitchell Dranow
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 (Balter, J.), dated December 5, 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 that the order is affirmed, with costs.

The Supreme Court properly determined that the defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motion, the defendants relied upon, inter alia, the affirmed medical report of their examining orthopedic surgeon. In his report he noted the existence of significant limitations in the plaintiff's lumbar spine range of motion (see Hurtte v Budget Roadside Care, 54 AD3d 362; Jenkins v Miled Hacking Corp., 43 AD3d 393; Bentivegna v Stein, 42 AD3d 555; Zamaniyan v Vrabeck, 41 AD3d 472). Under the circumstances, it is unnecessary to consider the sufficiency of the plaintiff's opposition papers (see Hurtte v Budget Roadside Care, 54 AD3d 362; Coscia v 938 Trading Corp., 283 AD2d 538).
SKELOS, J.P., DILLON, CARNI and LEVENTHAL, JJ., concur.

Luna v. Mann

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellants.
Michael A. Ruiz, New York, N.Y., for plaintiffs-respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Drissa Kone and Follow Me Transit, Inc., appeal from an order of the Supreme Court, Kings County (Solomon, J.), dated March 28, 2008, which granted the plaintiffs' motion for leave to reargue their opposition to the prior motion of the defendants Drissa Kone and Follow Me Transit, Inc., for summary judgment dismissing the complaint insofar as asserted by the plaintiff Roberto Flores against them on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d), which had been granted in an order dated October 25, 2007, and upon reargument, denied their motion for summary judgment.

ORDERED that the order dated March 28, 2008, is modified, on the law, by deleting the provision thereof which, upon reargument, denied the motion of the defendants Drissa Kone and Follow Me Transit, Inc., for summary judgment dismissing the complaint insofar as asserted by the plaintiff Roberto Flores against them on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and substituting therefor a provision adhering to the original determination in the order dated October 25, 2007, granting the motion of the defendants Drissa Kone and Follow Me Transit, Inc., for summary judgment; as so modified, the order dated March 28, 2008, is affirmed, with costs to the appellants.

Contrary to the contention of the defendants Drissa Kone and Follow Me Transit, Inc. (hereinafter together the appellants), the Supreme Court providently exercised its discretion in granting the plaintiffs' motion for leave to reargue (see E.W. Howell Co. Inc. v. S.A.F. La Sala Corp., 36 AD3d 653, 654; see also Pimentel v Mesa, 28 AD3d 629). However, upon reargument, the Supreme Court erred in failing to adhere to its original determination granting the appellants' motion for summary judgment. The appellants met their prima facie burden of showing that the plaintiff Roberto Flores did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether Flores sustained a serious injury. The report of Dr. Barry Pinchefsky dated June 10, 2005, the EMG report of Dr. Rey Bello dated June 14, 2004, the report of Dr. Vincent Vasile dated June 10, 2005, and the computerized range-of-motion test reports dated May 12, 2004, June 9, 2004, and July 21, 2004, respectively, were all without any probative value since they were unsworn or unaffirmed (see Grasso v Angerami, 79 NY2d 813; Uribe-Zapata v Capallan, 54 AD3d 936; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; Pagano v Kingsbury, 182 AD2d 268).

The affirmation of Dr. Stanley Liebowitz, Flores' treating orthopedist, was insufficient to raise a triable issue of fact as to whether Flores sustained a serious injury since Dr. Liebowitz clearly relied solely on the unsworn or unaffirmed reports of others in reaching his conclusions (see Sorto v Morales, 55 AD3d 718; Malave v Basikov, 45 AD3d 539; Furrs v Griffith, 43 AD3d 389; Friedman v U-Haul Truck Rental, 216 AD2d 266).

The affirmed magnetic resonance imaging reports of Dr. Ravindra Ginde merely established that Flores had bulging discs in his cervical spine and a herniated disc in his lumbar spine as of April and May 2004. The mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration (see Sealy v Riteway-1, Inc., 54 AD3d 1018; Kilakos v Mascera, 53 AD3d 527; Cerisier v Thibiu, 29 AD3d 507; Bravo v Rehman, 28 AD3d 694; Kearse v New York City Tr. Auth., 16 AD3d 45, 49). The self-serving affidavit of Flores was insufficient to meet that requirement (see Rabolt v Park, 50 AD3d 995; Young Soo Lee v Troia, 41 AD3d 469; Nannarone v Ott, 41 AD3d 441).

Lastly, the plaintiffs failed to submit competent medical evidence that the injuries allegedly sustained by Flores in the subject accident rendered him unable to perform substantially all of his daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Rabolt v Park, 50 AD3d 995; Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Sainte-Aime v Ho, 274 AD2d 569).
RIVERA, J.P., FLORIO, ANGIOLILLO, McCARTHY and CHAMBERS, JJ., concur.

Century Indemnity Company v. Brooklyn Union Gas Company

Boutin & Altieri, P.L.L.C., Fairfield, CT (John L. Altieri, Jr. of
counsel), for appellant.
Dickstein Shapiro LLP, Washington, DC (David L. Elkind of
counsel), for respondent.

Orders, Supreme Court, New York County (Michael D. Stallman, J.), entered May 21, 2007 and November 5, 2007, which denied Century Indemnity Company's motions for summary judgment and for renewal, respectively, unanimously affirmed, with costs.

These are actions to determine the validity of an excess insurer's disclaimer of coverage for contamination remediation and related costs based on the lack of timely notice of an occurrence. The court correctly found an issue of fact whether the insured's duty to give notice had arisen before the City of New York advised the insured in January 1993 that it intended to bring a federal environmental action with respect to one of the insured's sites. Unlike policies that require notice if an occurrence "may result" in a claim, where the duty arises when the insured can "glean a reasonable possibility of the policy's involvement" (see Paramount Ins. Co. v Rosedale Gardens, 293 AD2d 235, 239-240 [2002]; see also Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 338 [2005]), the subject policies require notice if an occurrence in this instance, hazardous waste contamination is "reasonably likely" to implicate the excess coverage. Giving the insured the benefit of the inferences as opponent of the motion, it cannot be [*2]determined as a matter of law that the insured's duty to provide notice had arisen from its knowledge of consultant reports, which were not definitive as to the extent of the contamination, the degree of remediation needed or the actual rather than the generalized projected remediation costs, and regulatory agency involvement that did not mandate any significant action (see Reynolds Metals Co. v Aetna Cas. & Sur. Co., 259 AD2d 195, 203-204 [1999]).

Contrary to Century's contention, the insured did not elect coverage provided by Associated Electric & Gas Insurance Services (AEGIS) by exclusively notifying that carrier, by letter of June 2001, of the potential for regulatory action. The coverage and notice provisions of the respective insurers' policies differ materially (cf. Power Auth. of State of N.Y. v Westinghouse Elec. Corp., 117 AD2d 336, 341 [1986]). Particularly, the excess liability coverage provided by AEGIS is afforded under a claims-first-made policy and extends only to an occurrence of which the company is given notice of the circumstances. The insured's letter to AEGIS expressly states that no claim is presently being made under the policy but, rather, that the communication is intended to give the carrier "NOTICE OF CIRCUMSTANCES," as the contract of insurance requires. Nor did the court improperly shift the burden of showing pro rata allocation to the insurer since the issue is notice with respect to undetermined costs, not reimbursement for known costs (cf. Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208 [2002]).

While the court had discretion to allow renewal even if the "newly discovered" evidence was previously available (see Mejia v Nanni, 307 AD2d 870 [2003]), it properly recognized that such relief is not a remedy for a litigant's strategic choices.

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

Liberty Mutual Insurance Company v. Frenkel

Calendar Date: December 17, 2008
Before: Peters, J.P., Spain, Rose, Kane and Kavanagh, JJ.


Taylor & Associates, Albany (Keith M. Frary of
counsel), for appellant.
Taller & Wizman, P.C., Forest Hills (David Taller of
counsel), for respondent.

MEMORANDUM AND ORDER


Kavanagh, J.

Appeal from an order of the Supreme Court (Hard, J.), entered March 19, 2008 in Albany County, which denied petitioner's application pursuant to CPLR 7503 to stay arbitration between the parties.

In October 2004, respondent was involved in an automobile accident when the vehicle he was driving was rear-ended by an automobile operated by Syed Chowdhury and owned by Mohammed Ali. Three weeks after the accident, respondent's counsel sent a letter to petitioner, respondent's insurer, notifying it that respondent had been injured in an automobile accident, had incurred medical expenses, lost wages from work and would be seeking no-fault benefits under his insurance policy. The letter also stated that "if our investigation reveals that the offending vehicle was not insured or underinsured, we are therefore reserving our rights to pursue [uninsured motorist/supplemental uninsured/underinsured motorist] benefits under [said] endorsement in the policy." More than two years later, in December 2006, respondent's counsel notified petitioner that he was in the process of settling a lawsuit that respondent had commenced against Ali for the limits of Ali's insurance policy and that respondent, upon such settlement, intended to seek supplemental uninsured/underinsured motorist (hereinafter SUM) benefits under his policy with petitioner. On January 3, 2007, petitioner notified respondent that it was disclaiming coverage under the policy on the grounds that respondent had failed to provide it with timely notice not only of his lawsuit against Ali, but also of his claim for SUM benefits. After respondent served petitioner with a notice to compel arbitration, petitioner commenced this CPLR article 75 proceeding requesting that arbitration be permanently stayed. Supreme Court dismissed the petition, prompting this appeal.

We affirm. Petitioner argues, and we agree, that respondent, on the facts presented, has failed to comply with the provisions of the policy that require prompt notice be given of any third-party litigation or any claim for SUM benefits ^[FN1] (see Matter of Allstate Ins. Co. [Earl], 284 AD2d 1002, 1003 [2001]). However, for petitioner to effectively disclaim any liability under the SUM provision of the policy, it is still obligated to establish that it has been prejudiced in some meaningful way by this delay (see Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 475 [2005]; Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491, 498 [2002]; Matter of New York Cent. Mut. Ins. Co. v Davalos, 39 AD3d 654, 655 [2007]; Matter of New York Cent. Mut. Fire Ins. Co. v Ward, 38 AD3d 898, 899 [2007]; Matter of Nationwide Mut. Ins. Co. [Mackey], 25 AD3d 905, 906 [2006]). While respondent's letter did not satisfy his obligation to provide prompt notice, it did put petitioner on notice of the existence of the accident and the potential implications it held for its policy.

There is no dispute that petitioner was put on notice of the existence of the accident within three weeks of its occurrence and that respondent would be submitting a claim pursuant to the no-fault provisions of the policy. With that notice, petitioner also received the police report prepared in connection with the accident that identified the individuals involved in the accident as well as the vehicle each individual was operating. Petitioner was also notified at that time that respondent would seek SUM coverage under its policy if the tortfeasor's policy proved inadequate to fully compensate him for the injuries that he sustained in the accident. Under the circumstances, petitioner had ample information at its disposal shortly after the accident occurred to properly investigate this claim and ensure that its interests under the policy were fully protected. Equally important, petitioner has failed to demonstrate that respondent's delay in notifying it of the third-party action or the SUM claim in any way compromised its ability to investigate the circumstances surrounding the accident or to protect its interests under this policy (see Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d at 475; Matter of Nationwide Mut. Ins. Co. [Mackey], 25 AD3d at 907). As such, its application to stay arbitration was properly denied.

Peters, J.P., Rose and Kane, JJ., concur; Spain, J., not taking part.

ORDERED that the order is affirmed, with costs.

Footnotes

Footnote 1:Petitioner's SUM policy required that "[a]s soon as practicable, the insured or other person making claim shall give us written notice of claim under this SUM coverage." Additionally, the SUM endorsement provided that "if the insured . . . brings any lawsuit against any person or organization legally responsible for the use of a motor vehicle involved in the accident, a copy of the summons and complaint or other process served in connection with the lawsuit shall be forwarded immediately" to petitioner.

 

Carr v. KMO Transportation, Inc.

Gellman & Mandell, Lynbrook, N.Y. (Irving Mandell of counsel),
for plaintiffs-appellants.
Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success,
N.Y. [Marshall D. Sweetbaum] of
counsel), for counterclaim
defendant-respondent.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York,
N.Y. (Holly E. Peck of counsel), for
defendant/counterclaim
plaintiff-respondent KMO Transportation,
Inc.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much an order of the Supreme Court, Queens County (Kitzes, J.), entered February 25, 2008, as granted the separate motions of the defendants KMO Transportation, Inc., and Jean O. Antoine for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff Veleta Carr did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and granted that branch of the motion of Lloyd Trevor Carr, the defendant on the counterclaim, for summary judgment dismissing the complaint on the same ground.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs to the plaintiffs payable by the respondents, and the separate motions of the defendants KMO Transportation, Inc., and Jean O. Antoine, and that branch of the motion of the counterclaim defendant, Lloyd Trevor Carr, which were for summary judgment dismissing the complaint on the ground that the plaintiff Veleta Carr did not sustain a serious injury within the meaning of Insurance Law § 5102(d) are denied.

The defendants KMO Transportation, Inc., and Jean O. Antoine, as well as the plaintiff/counterclaim defendant Lloyd Trevor Carr (hereinafter collectively the movants), all sought to dismiss the complaint on the ground that the plaintiff Veleta Carr (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. In support of their separate motions, the movants relied on the same submissions. The Supreme Court erred in concluding that those submissions were sufficient to meet their prima facie burdens of showing that the injured plaintiff did not sustain a serious injury within the meaning of the no-fault statute as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY955, 956-957). The motion papers of the respective movants did not adequately address the injured plaintiff's claim, clearly set forth in her bill of particulars, that she sustained a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Jensen v Nicmanda Trucking, Inc., 47 AD3d 769; Alexandre v Dweck, 44 AD3d 597; Sayers v Hot, 23 AD3d 453, 454). The injured plaintiff stated in her bill of particulars that, as a result of the subject accident, she was out of work for approximately five months. The subject accident occurred on June 27, 2005, and the injured plaintiff was not examined by Dr. Edward Weiland or Dr. Yan Q. Sun, experts hired by the defendant TMO Transportation, Inc. (hereinafter TMO), until April 5, 2007, approximately one year and nine months after the subject accident. Despite these allegations of serious injury, the experts did not address this category of serious injury in their respective reports (see Jensen v Nicmanda Trucking, Inc., 47 AD3d 769; Alexandre v Dweck, 44 AD3d 597; Sayers v Hot, 23 AD3d 453).

Although the movants relied on the affirmed medical reports of Dr. Marc Brown, TMO's radiologist, his conclusions, based upon his review of her magnetic resonance imaging studies, that the injuries noted in the injured plaintiff's cervical and lumbar spine were not the result of the subject accident but were the result of preexisting degeneration, were not sufficient to establish the movants respective prima facie burdens. Dr. Brown's conclusions were insufficient because the injured plaintiff alleged not only cervical and lumbar spine injuries in her bill of particulars, but also alleged injury to her right shoulder. While Dr. Weiland and Dr. Sun noted in their respective reports that, on the date of their examinations, the injured plaintiff had full range of motion in her right shoulder, those findings were made one year and nine months post-accident. There was no opinion offered by any of the experts relied upon by the movants as to whether the injured plaintiff's alleged right shoulder injury prevented her from working for approximately five months during the first 180 days immediately following the subject accident. Thus, the movants failed to establish their respective prima facie burdens.

Since the movants failed to meet their respective prima facie burdens, it is unnecessary to consider whether the injured plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Jensen v Nicmanda Trucking, Inc., 47 AD3d 769; Alexandre v Dweck, 44 AD3d 597; Sayers v Hot, 23 AD3d 453).
MASTRO, J.P., FISHER, FLORIO, CARNI and ENG, JJ., concur.

Luizzi-Schwenk v. Singh

Elovich & Adell, Long Beach, N.Y. (Mitchel Sommer and Darryn
Solotoff of counsel), for appellant.
Robert J. Adams, Jr., LLC, Garden City, N.Y. (Maryellen David
of counsel), for respondents Raspal
Singh and Cookie Cab Corp.
Litchfield Cavo, LLP, New York, N.Y. (Sean H. Chung of
counsel), for respondents Toni M.
Panza and Robert A. Panza.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Parga, J.), dated December 20, 2007, which granted the separate motions of the defendants, Raspal Singh and Cookie Cab Corp., and Toni M. Panza and Robert A. Panza, respectively, for summary judgment dismissing the complaint insofar as asserted against them 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 one bill of costs.

In support of their separate motions for summary judgment the defendants, Raspal Singh and Cookie Cab Corp., and Toni M. Panza and Robert A. Panza, relied on the same submissions. The defendants met their prima facie burdens of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact.

The plaintiff failed to raise a triable issue of fact as to whether she sustained a serious injury to her lumbar spine under the permanent limitation of use and/or the significant limitation of use categories of Insurance Law § 5102(d), since she has failed to proffer any competent medical evidence that revealed the existence of a significant range of motion limitation in her lumbar spine that was contemporaneous with the subject accident (see Leeber v Ward, 55 AD3d 563; Ferraro v Ridge Car Serv., 49 AD3d 498; D'Onofrio v Floton, Inc., 45 AD3d 525). Furthermore, the plaintiff failed to proffer any medical evidence that was based upon a recent examination (see Diaz v Lopresti, 2008 NY Slip Op 10119 [2d Dept 2008]; Sapienza v Ruggiero, 2008 NY Slip Op 9773 [2d Dept 2008]; Landicho v Rincon, 53 AD3d 568).

The affirmed magnetic resonance imaging (hereinafter MRI) report of Dr. Alan B. Greenfield dated March 17, 2005, merely revealed the existence of disc herniations at L4-5 and L5-S1, as well as a coexisting disc bulge at L5-S1. The affirmed MRI report of Dr. Linda Harkavy merely revealed, on January 16, 2006, the existence of disc herniations at L3-4, L4-5, and L5-S1. The mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration (see Sealy v Riteway-1, Inc., 54 AD3d 1018; Kilakos v Mascera, 53 AD3d 527; Cerisier v Thibiu, 29 AD3d 507; Bravo v Rehman, 28 AD3d 694; Kearse v New York City Tr. Auth., 16 AD3d 45). Neither Dr. Greenfield nor Dr. Harkavy set forth an opinion of the cause of the herniated or bulging discs noted within their respective reports (see Collins v Stone, 8 AD3d 321). The self-serving affidavit of the plaintiff was insufficient to raise a triable issue of fact (see Sealy v Riteway-1, Inc., 54 AD3d 1018).

Lastly, the plaintiff failed to submit competent medical evidence that the injuries she sustained in the subject accident rendered her unable to perform substantially all of her daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Rabolt v Park, 50 AD3d 995; Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Sainte-Aime v Ho, 274 AD2d 569).
SPOLZINO, J.P., COVELLO, McCARTHY and BELEN, JJ., concur.

Smith v. Matinale

Picciano & Scahill, P.C., Westbury, N.Y. (Gilbert J. Hardy and
Francis J. Scahill of counsel), for appellants.
John P. Gianfortune, P.C. (Michelle S. Russo, P.C., Port
Washington, 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, Nassau County (Galasso, J.), entered May 22, 2008, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants satisfied their initial burden of establishing, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident through the submission of the plaintiff's deposition testimony and the affirmed reports of their examining physicians (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). However, the medical evidence submitted by the plaintiff in opposition, in particular the affirmations of her treating orthopedist and neurologist, as well as the affirmation of her radiologist, was sufficient to raise a triable issue of fact. Moreover, both the plaintiff's orthopedist and the plaintiff, in her own affidavit, adequately explained any gaps in her medical treatment.
MASTRO, J.P., FISHER, FLORIO, CARNI and ENG, JJ., concur.

Giacomaro v. Wilson

Borchert, Genovesi, LaSpina & Landicino, P.C., Whitestone,
N.Y. (Gregory M. LaSpina and Stephen J. Smith of counsel), for
appellant.
Picciano & Scahill, P.C., Westbury, N.Y. (Gilbert J. Hardy
and Francis J. Scahill of counsel),
for respondent Ralph R. Wilson.
Epstein, Rayhill & Frankini, Woodbury, N.Y. (Michael
Callari III of counsel), for
respondents Brian J. Scelfo and Mark S.
Scelfo.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Parga, J.), entered December 14, 2007, which granted the motion of the defendant Ralph R. Wilson and the separate motion of the defendants Brian J. Scelfo and Mark S. Scelfo for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with one bill of costs payable to the plaintiff, and the motion of the defendant Ralph R. Wilson and the separate motion of the defendants Brian J. Scelfo and Mark S. Scelfo for summary judgment dismissing the complaint insofar as asserted against them are denied.

The Supreme Court erred in determining that the defendants met their prima facie burdens of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). Here, the defendants, who submitted the same evidence in support of their respective motions, relied, inter alia, on the affirmed medical report of Dr. Vartkes Khachadurian. That doctor, an orthopedic surgeon, examined the plaintiff on April 11, 2007, and noted in his report a significant limitation in the range of motion of the plaintiff's right shoulder (see Hurtte v Budget Roadside Care, 54 AD3d 362; Perry v Brusini, 53 AD3d 478; Jenkins v Miled Hacking Corp., 43 AD3d 393; Bentivegna v Stein, 42 AD3d 555; Zamaniyan v Vrabeck, 41 AD3d 472). Since the defendants failed to meet their respective prima facie burdens, it is unnecessary to consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Hurtte v Budget Roadcare Care, 54 AD3d 362; Coscia v 938 Trading Corp., 283 AD2d 538).
SPOLZINO, J.P., COVELLO, McCARTHY and BELEN, JJ., concur.

Miller v. Bah

Bongiorno Law Firm, PLLC, Mineola, N.Y. (Aaron C. Gross of
counsel), for appellant.
Robert J. Adams, Jr., Garden City, N.Y. (Maryellen David of
counsel), for respondent

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, Nassau County (Mahon, J.), dated December 13, 2007, as granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

Contrary to the Supreme Court's determination, the defendant failed to meet his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Yung v Eager, 51 AD3d 638; cf. Gaddy v Eyler, 79 NY2d 955, 958). In his verified bill of particulars, the plaintiff claimed that, as a result of the accident, he "was incapacitated from his employment from June 28, 2004 through October 4, 2004 and intermittently thereafter." Nevertheless, the defendant failed to offer evidence sufficient to establish, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) by reason of a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. The defendant's neurologist and orthopedic surgeon conducted examinations of the plaintiff on January 2, 2007, nearly 2½ years after the accident. However, neither expert related his findings to the claim that the plaintiff was out of work for more than 90 days immediately following accident (see Alexandre v Dweck, 44 AD3d 597; Bozza v O'Neill, 43 AD3d 1094, 1096). Inasmuch as the defendant did not meet his prima facie burden, this Court need not consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Alexandre v Dweck, 44 AD3d at 597; Bozza v O'Neill, 43 AD3d at 1096).
FISHER, J.P., COVELLO, BALKIN and BELEN, JJ., concur.

Nova Casualty Company v. Central Mutual Insurance Company

Calendar Date: December 17, 2008
Before: Peters, J.P., Spain, Rose, Kane and Kavanagh, JJ.


Shay & Maguire, L.L.P., East Meadow (Kenneth R.
Maguire of counsel), for appellant.
Hiscock & Barclay, L.L.P., Albany (Mark W. Moran,
pro hac vice, of counsel) for Central Mutual Insurance Company
and others, respondents.
Robert J. Gagen, Hudson, for Ryan Bennett,
respondent.

MEMORANDUM AND ORDER


Kavanagh, J.

Appeal from an amended order of the Supreme Court (Donohue, J.), entered July 14, 2008 in Columbia County, which granted a motion by defendants Central Mutual Insurance Company, James Catlett and Joan Catlett for summary judgment and declared that plaintiff was obligated to defend and indemnify defendant Ryan Bennett in an underlying action.

Defendant Ryan Bennett, who owns and operates a painting business, and defendant Robert Pesano were hired by defendants James Catlett and Joan Catlett to apply a protective sealant to the cedar wood siding of the exterior of the Catletts' home. As the sealant was being applied, drop cloths were used to catch any of the solution that had dripped during the application process. The drop cloths were then stored in an enclosed porch at the rear of the Catletts' home. Later, the home was significantly damaged by a fire that the Catletts claimed was caused by the spontaneous combustion of chemicals in the sealant that had collected on the drop cloths.

The Catletts were reimbursed for the losses they sustained under their homeowner's policy with defendant Central Mutual Insurance Company which, in turn, commenced an action against Bennett and Pesano to recover all moneys paid out for this claim. Bennett was insured at the time he performed the work at the Catlett home under a commercial liability policy issued by plaintiff. Plaintiff ultimately agreed to defend Bennett in that action, but disclaimed coverage citing two exclusions contained in the policy that it maintained immunized it from having to pay any damages caused by this fire. In that regard, plaintiff commenced this action against Central Mutual, the Catletts, Bennett and Pesano, seeking a declaration that it was not obligated under the terms of its policy to indemnify or defend Bennett in the Catletts' action. Supreme Court found that the exclusions in the policy did not apply, granted a motion by the Catletts and Central Mutual for summary judgment dismissing the complaint against them and declared that plaintiff was obligated under the terms of its policy to defend and indemnify Bennett in the Catletts' action. This appeal ensued.

Initially, we note that to gain the benefit of an exclusion clause in an insurance policy, the insurer has the burden of demonstrating "that the exclusion is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case" (Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640, 652 [1993]; see RJC Realty Holding Corp. v Republic Franklin Ins. Co., Utica Natl. Ins. Group, 2 NY3d 158, 165 [2004]; Frontier Insulation Contrs. v Merchants Mut. Ins. Co., 91 NY2d 169, 175 [1997]; Villanueva v Preferred Mut. Ins. Co., 48 AD3d 1015, 1016 [2008]). As for the particular provisions in question here, plaintiff argues that the policy exempts it from liability because it specifically excludes from coverage any "bodily injury and property damage arising out of [s]pray [p]ainting [o]perations." However, nowhere in the policy is the term spray painting operations defined or is it specifically stated that such an operation includes the application of sealants or other nontraditional paint materials. Here, the uncontroverted testimony established that Bennett and Pesano were not using a paint; instead, they were applying a product called "Cabot Clear Solution." Given that sealants, as opposed to paints, were not covered by the express wording of the exclusion, this clause, as it is applied to these facts, is, at best, ambiguous and the existence of such an ambiguity serves to bar its application to the facts as presented by this claim (see Villanueva v Preferred Mut. Ins. Co., 48 AD3d at 1016; Boggs v Commercial Mut. Ins. Co., 220 AD2d 973, 974 [1995]; General Acc. Ins. Co. v United States Fid. & Guar. Ins. Co., 193 AD2d 135, 138 [1993]).

Moreover, both Bennett and Pesano testified that they did not simply spray the sealant onto the siding of the home they used brushes as well. As there is nothing in the record that would support a finding that the fire resulted from sealant that was sprayed onto the siding of the house an excluded activity as opposed to sealant that was applied with a brush an activity that appears to be covered by the policy the exclusion cannot apply.

We also note that plaintiff urges the adoption of an interpretation of this clause that, if correct, would have been applied to any work performed by Bennett and his employees on the Catlett home and, as such, would have resulted in there being no coverage under this policy. Such a result would have obviously been at odds with Bennett's "reasonable expectations as a businessperson seeking insurance coverage for injuries resulting from the operation of his [painting] business" (Kramarik v Travelers, 25 AD3d 960, 962 [2006]).

Plaintiff also argues that a second exclusion in the policy renders it exempt from responsibility for any damage "to that specific part of real property on which work is being performed . . . if the 'property damage' arises out of such work." This provision commonly referred to as a "work product" exclusion "exists to exclude coverage for business risks, including claims that the insured's product or completed work [was] not that for which the damaged person bargained" (Basil Dev. Corp. v General Acc. Ins. Co., 89 NY2d 1057, 1058 [1997] [internal quotation marks and citation omitted]; see Zandri Constr. Co. v Firemen's Ins. Co. of Newark, 81 AD2d 106, 109 [1981], affd 54 NY2d 999 [1981]). The Catletts' claim is not that they were damaged as the result of the quality of Bennett's work or that he misapplied the sealant to the siding of their home. Instead, their claim is that the home was damaged by a fire caused by the negligent manner in which Bennett and his employees stored materials and equipment used on the job after the sealant had been applied (see Basil Dev. Corp. v General Acc. Ins. Co., 229 AD2d 640, 641 [1996], affd 89 NY2d 1057 [1997]; Saks v Nicosia Contr. Corp., 215 AD2d 832, 834 [1995]). This exclusion is clearly not intended to exempt from coverage under a general commercial liability policy physical damage caused by the negligence of an insured; instead, it was designed to apply to those situations where coverage is sought "for contractual liability of the insured for economic loss because the product or completed work is not what the damaged person bargained for" (Hartford Acc. & Index. Co. v Reale & Sons, 228 AD2d 935, 936 [1996]). For these reasons, this exclusion does not apply.

Finally, we are unpersuaded by plaintiff's claims that the motion made by Central Mutual and the Catletts for summary judgment was premature and that Supreme Court, by granting the motion, deprived it of an opportunity to perform meaningful discovery. Plaintiff not only has been on notice of the existence of this fire and the implications that it held for its policy since shortly after this fire occurred, it also played an intimate and important role in providing the insured with a defense in the underlying litigation. In addition, plaintiff has failed to identify how it, in the course of these proceedings, has been prevented from obtaining what it contends is relevant evidence on the issues that have been raised and resolved by Supreme Court in its determination of this motion for summary judgment (see Zinter Handling, Inc. v Britton, 46 AD3d 998, 1001 [2007]).

Creinis v. Hanover Insurance Company

Putney, Twombly, Hall & Hirson LLP, New York, N.Y. (Thomas
A. Martin and James S. Strauss of counsel), for appellant.
Paul D. Creinis, LLC, Brooklyn, N.Y., for respondent.


DECISION & ORDER

In an action pursuant to Insurance Law § 3420(a)(2) to recover an unsatisfied judgment against the defendant's insured, the defendant appeals from (1) so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated January 3, 2006, as denied its motion pursuant to CPLR 3124 and 3126 to compel certain discovery or, in the alternative, to preclude the plaintiff from adducing certain evidence at trial, (2) an order of the same court dated March 2, 2006, which granted the plaintiff's motion for summary judgment on the complaint and, in effect, denied its cross motion for summary judgment dismissing the complaint, and (3) a judgment of the same court dated April 14, 2006, which, upon the order dated March 2, 2006, is in favor of the plaintiff and against it in the principal sum of $800,000.

ORDERED that the appeals from the orders dated January 3, 2006, and March 2, 2006, are dismissed, without costs or disbursements; and it is further,

ORDERED that the judgment is modified, on the law, by deleting the provision thereof which is in favor of the plaintiff and against the defendant in the principal sum of $800,000, and substituting therefor a provision which is in favor of the plaintiff and against the defendant in the principal sum of $25,000; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for the entry of an appropriate amended judgment. 

The appeals from the intermediate orders must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeals from the orders are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

On January 16, 2000, the plaintiff, while driving her own vehicle, was struck and injured by a vehicle (hereinafter the Fashina vehicle) operated by Olatoyin Fashina and owned by Olatoyin Fashina, Inc. (hereinafter together the Fashinas). The plaintiff demanded an uninsured motorist arbitration against her own insurer, but that insurer petitioned to stay the arbitration on the ground that the Fashinas and the Fashina vehicle were insured by the defendant, Hanover Insurance Company (hereinafter Hanover). The petition relied upon the facts that the police accident report pertaining to the collision listed an insurance code corresponding to Hanover as the insurer of the Fashina vehicle, and that an "Accident Information Exchange Report" also identified Hanover as the insurer. Hanover was joined as a named respondent in the proceeding to stay arbitration and was duly served with the notice of petition and petition, but failed to appear or answer. Accordingly, in an order dated November 8, 2002, entered upon Hanover's default, the Supreme Court, Kings County (Dabiri, J.) permanently stayed the arbitration, finding in part that, "based on the evidence submitted to the Court, the vehicle operated by Olatoyin M. Fashina and owned by Olatoyin Fashina, Inc. was insured by [Hanover]."

Thereafter, Hanover moved to vacate the order entered upon its default, claiming, inter alia, that it never insured the Fashinas or the Fashina vehicle. In an order dated July 9, 2003, the court granted the motion, vacated the default, and referred the matter to a Judicial Hearing Officer to determine the issue of coverage. However, on the appeal by the plaintiff's insurer, this Court, in a decision and order dated June 7, 2004, reversed the order dated July 9, 2003, and reinstated the order dated November 8, 2002, entered on Hanover's default, finding that Hanover "failed to demonstrate a reasonable excuse for its default" (Matter of Hartford Ins. Co. of Midwest v Creinis, 8 AD3d 381).

Meanwhile, by the filing of a summons and complaint on December 30, 2002, the plaintiff commenced an action to recover damages for her personal injuries against the Fashinas. Notwithstanding letters sent by the plaintiff's counsel to the attorneys representing Hanover on the appeal from the order dated July 9, 2003, Hanover did not provide legal counsel to defend the Fashinas, who failed to appear in the action. Accordingly, the plaintiff moved for leave to enter a default judgment on the issue of liability against the individual operator, Olatoyin Fashina. In an order dated June 25, 2004, the Supreme Court, Kings County (M. Garson, J.), granted the motion, and an inquest to assess damages was scheduled for October 28, 2004. The inquest did not take place until February 22, 2005, well after this Court reinstated the order dated November 8, 2002, which both stayed arbitration and determined that Hanover was the insurer of the Fashina vehicle. Nevertheless, and notwithstanding the provision of notice of the inquest to Hanover, once again no one appeared on behalf of Olatoyin Fashina, who again defaulted. The inquest culminated in a judgment dated May 13, 2005, in favor of the plaintiff and against Olatoyin Fashina in the principal sum of $800,000. The judgment with notice of entry was served upon Hanover, but was not paid.

On or about July 12, 2005, the plaintiff commenced this action pursuant to Insurance Law § 3420(a)(2) against Hanover to recover the amount of the unsatisfied judgment. Hanover answered the complaint and asserted, as an affirmative defense, inter alia, that it never issued a policy of insurance to the Fashinas. Following some preliminary motion practice, the plaintiff moved for summary judgment on the complaint and Hanover cross-moved for summary judgment dismissing the complaint. The Supreme Court, Kings County (Schmidt, J.), granted the plaintiff's motion in an order dated March 2, 2006. A judgment dated April 14, 2006, in the principal sum of $800,000 was entered in favor of the plaintiff and against Hanover, and Hanover appeals.

Contrary to Hanover's contention, the Supreme Court properly imposed liability against it. "Insurance Law § 3420 grants an injured plaintiff the right to sue a tortfeasor's insurance company to satisfy a judgment obtained against the tortfeasor" (Lang v Hanover Ins. Co., 3 NY3d 350, 352). The action may be maintained following a 30-day waiting period after service upon the insurer of the judgment with notice of entry, assuming the insurer does not satisfy the judgment in the interim (see Insurance Law § 3420[a][2]). "Once the statutory prerequisites are met, the injured party steps into the shoes of the tortfeasor and can assert any right of the tortfeasor-insured against the insurance company" (Lang v Hanover Ins. Co., 3 NY3d at 355).

Here, the plaintiff made a prima facie showing of entitlement to judgment as a matter of law under Insurance Law § 3420(a)(2) (see generally Alvarez v Prospect Hosp., 68 NY2d 320). Certainly she proved the existence of an unsatisfied judgment in her favor in the underlying action to recover damages for personal injuries (see Lang v Hanover Ins. Co., 3 NY3d 350). However, Hanover contends that it never issued a policy to Olatoyin Fashina, Inc., and never covered the vehicle which struck the plaintiff. Therefore, Hanover reasons that the plaintiff is barred from any recovery because she cannot make the requisite showing that, "at the time of the accident, there was in full force and effect an agreement of insurance between the insurer and the judgment debtor covering the latter for the liability merged in the judgment" (Holmes v Allstate Ins. Co., 33 AD2d 96, 98). This contention is unpersuasive, since Hanover's position has already been rejected by this Court in the factually indistinguishable case of Kleynshvag v GAN Ins. Co. (21 AD3d 999).

In Kleynshvag, decided by this Court slightly more than three years ago, the plaintiff was struck and injured, as here, by a vehicle operated by one person and owned by another. As here, the injured party sought uninsured motorist benefits against his own insurer, and that insurer sought to permanently stay the uninsured motorist arbitration on the ground that another carrier, GAN Insurance Company (hereinafter GAN), was the insurer of the offending vehicle. Like Hanover herein, GAN was given notice of the proceeding to stay arbitration and failed to appear. As in this case, the Supreme Court issued an order, upon GAN's default, staying the arbitration and finding that GAN was the insurer of the subject vehicle and, like Hanover here, GAN unsuccessfully attempted to vacate its default. As here, the injured party commenced a personal injury action against the owner and operator of that vehicle, and GAN, like Hanover, declined to participate despite having notice of the action. As here, the personal injury action culminated in the entry of a default judgment against the vehicle operator, and an inquest to assess damages, at which the operator did not appear, resulted in the entry of a substantial money judgment in favor of the injured party and against the defaulting operator. The injured party then sought to enforce the unsatisfied judgment against GAN pursuant to Insurance Law § 3420(a)(2). As Hanover did here, GAN contended, in opposition to the injured party's motion for summary judgment on the complaint, that it did not issue an insurance policy covering the owner or operator of the subject vehicle. As here, the Supreme Court granted the injured party's motion for summary judgment on the complaint, and the matter was appealed to this Court.

In upholding the imposition of liability against GAN, this Court observed, in an analysis equally applicable to the case at bar, that since the Supreme Court had determined in the proceeding to stay arbitration that GAN insured the offending vehicle, GAN was "collaterally estopped from litigating the issue of coverage, even though that issue was initially determined on its default in the arbitration" (Kleynshvag v GAN Ins. Co., 21 AD3d at 1003). This Court further reasoned that the preclusive effect of that determination satisfied the injured party's burden of demonstrating his entitlement to summary judgment pursuant to Insurance Law § 3420(a)(2).

In view of our recent precedent in Kleynshvag, decided under facts nearly identical to those at bar, we are compelled to find that the plaintiff has sustained her burden under Insurance Law § 3420(a)(2) in this case. Hanover was made a party to the proceeding to stay arbitration of the uninsured motorist claim and inexcusably failed to participate in that proceeding. As a result, the Supreme Court determined, upon Hanover's default, that Hanover extended insurance coverage to the subject vehicle. Accordingly, under the circumstances, Hanover is collaterally estopped from litigating the issue of such coverage at this juncture, since that question was already determined adversely to it in the proceeding to stay arbitration—a proceeding in which it had a full and fair opportunity to appear and litigate—and the application of collateral estoppel is neither unwarranted nor unfair under the facts presented (see Kleynshvag v GAN Ins. Co., 21 AD3d 999; see also Matter of Aisle Natl. LLC v K & E Mech., Inc., 29 AD3d 901; Chai Props. Corp. v Carb, Luria, Glassner, Cook & Kufeld, 288 AD2d 44; Harris v Stein, 207 AD2d 382; cf. Gaston v American Tr. Ins. Co.,NY3d, 2008 NY Slip Op 09853 [2008] [application of collateral estoppel is inappropriate where there are conflicting judgments on the coverage issue at the trial level]).

However, with regard to the issue of the amount to be awarded to the plaintiff, we find that the plaintiff's recovery must be limited to the sum of $25,000, which is the statutory minimum coverage required by Vehicle and Traffic Law § 311(4)(a). In Kleynshvag, this Court recognized that a situation could arise where an insurer, by reason of a prior default, might be found liable for an unsatisfied judgment pursuant to Insurance Law § 3420(a)(2), yet might also be able to prove either that it had no policy of insurance in effect covering the subject accident, or that any policy which was in effect had a coverage limit lower than the amount of the unsatisfied judgment. In order to avoid the imposition of an undue financial burden upon the insurer in such a situation, this Court left open the door in Kleynshvag to the receipt of such evidence, not to relieve the defaulting insurer of liability altogether, but to reduce its exposure on the judgment. However, this Court further reasoned that "[s]ince a limitation on an insurer's liability . . . may frustrate the policy of this State that victims of motor vehicle accidents receive compensation for their injuries, we conclude that [the insurer] carries the burden of proving the limit of the relevant coverage" (Kleynshvag v GAN Ins. Co., 21 AD3d at 1004). Moreover, where an insurer can demonstrate that no coverage at all was in effect for the accident, its exposure will be limited to the statutory minimum coverage for personal injury liability, which is fixed in the sum of $25,000 pursuant to Vehicle and Traffic Law § 311(4)(a), a relatively paltry price for its default in the proceeding to stay the uninsured motorist arbitration—the very default which occasioned all of the ensuing litigation and the corresponding delay in the injured plaintiff's monetary recovery.

Unlike the insurer in Kleynshvag, who failed to sustain its burden with regard to the monetary limit of its policy, Hanover has met its burden in this case. Indeed, Hanover came forward with extensive evidence of multiple exhaustive searches of different databases conducted by different Hanover personnel, using both the name of the purported insured and the vehicle identification number of the subject vehicle. Those searches revealed that no policy was issued by Hanover covering the owner, operator, or vehicle involved in this case at the time of the accident. Accordingly, Hanover's liability should be limited to the amount statutorily fixed as the minimum coverage required for personal injury liability.

The arguments propounded by the dissent are precisely those which were already considered and rejected by this Court in its recent resolution of the Kleynshvag appeal. Accordingly, we find them unpersuasive.

In this regard, the Supreme Court's finding in the proceeding to stay the uninsured motorist arbitration that the subject vehicle in this case was insured by Hanover necessarily entailed a determination that insurance coverage was afforded to its owner, Olatoyin Fashina, Inc. Moreover, it is axiomatic that there is a strong presumption that one who uses a motor vehicle does so with the owner's permission, thereby resulting in liability for the negligence of the operator unless that presumption is rebutted (see Vehicle and Traffic Law § 388; Murdza v Zimmerman, 99 NY2d 375; Murphy v Carnesi, 30 AD3d 570). Significantly, that presumption has not been challenged in this case, nor could a realistic challenge to the presumption of permissive use be mounted here, given that the owner of the vehicle was Olatoyin Fashina, Inc., and the operator was Olatoyin Fashina. Since the Insurance Law mandates that automobile liability coverage be extended to permissive users (see Insurance Law § 3420[e]; Jefferson Ins. Co. of N.Y. v Travelers Indem. Co., 92 NY2d 363, 375), the plaintiff was entitled to seek recovery from Hanover for the negligence of the operator.

Furthermore, while the dissent expresses concern that our conclusion creates a "windfall" for the plaintiff's uninsured motorist carrier by shifting liability for the plaintiff's injuries to Hanover, we are far more concerned that the injured plaintiff have recourse to a viable avenue of recovery. Indeed, the plaintiff sought to obtain uninsured motorist benefits from her own carrier in the first instance. However, Hanover foreclosed any possibility that she might obtain such benefits by its inexcusable default in the proceeding to stay arbitration. That default led to a determination that Hanover was the insurer of the Fashina vehicle, and thereby rendered uninsured motorist benefits unavailable to the plaintiff. Were we now to hold that Hanover should not be bound by that determination and instead should be free to contest the issue of whether it provided coverage, then the plaintiff would not be able to obtain uninsured motorist benefits from her own insurer because that arbitration has been permanently stayed as a result of Hanover's default, and she likewise would be unable to seek recovery from Hanover because it did not have a policy in effect which covered the accident. Such a result would be untenable. As between denying any recovery to the injured and innocent plaintiff or imposing the statutory minimum liability against the inexcusably defaulting Hanover, we have no difficulty in choosing the latter. It was Hanover's obligation to present evidence of noncoverage in response to the prima facie showing of coverage made in the proceeding to stay the uninsured motorist arbitration. Having instead defaulted, Hanover ran the risk that its default would prevent it from subsequently denying the existence of coverage, a result which has now come to pass. We see no reason under these circumstances to come to Hanover's rescue at this late stage.

Finally, the Supreme Court providently exercised its discretion in denying Hanover's motion to compel certain discovery or, in the alternative, to preclude the plaintiff from adducing certain evidence at trial (see D'Ambrosio v 85 Crystal Run Co., 37 AD3d 757; Casabona v Huntington Union Free School Dist., 29 AD3d 723; Milbrandt & Co. Inc. v Griffin, 19 AD3d 663).

Hanover's remaining contentions are without merit.

MASTRO, J.P., SANTUCCI and FLORIO, JJ., concur.

CARNI, J., concurs in part and dissents in part and votes to the dismiss the appeals from the orders dated January 3, 2006, and March 2, 2006, respectively, reverse the judgment dated April 14, 2006, deny the plaintiff's motion for summary judgment on the complaint, grant the defendant's cross motion for summary judgment dismissing the complaint, dismiss the complaint, and modify the order dated March 2, 2006, accordingly, with the following memorandum:

In my view, the plaintiff in this action failed to meet her burden of proof under Insurance Law § 3420(a)(2) by establishing a "judgment against the insured," the "terms of the policy or contract" of insurance, and "the amount of the applicable limit of coverage under such policy or contract." I, therefore, respectfully concur in part and dissent in part.

It is well settled that an action by a judgment creditor against a liability insurer exists on the basis of a special statutory provision and, as therein provided, is dependent upon the "terms of the policy or contract" with the insured (Holmes v Allstate Ins. Co., 33 AD2d 96, 98). Accordingly, I agree that the judgment creditor bears the burden of proving, prima facie, that there was an agreement of insurance in full force and effect between the insurer and the judgment debtor, covering the latter for the liability that is merged into the judgment.

Importantly, the plaintiff, like Hanover, did not appear in the proceeding to permanently stay arbitration of the plaintiff's claim for uninsured motorist benefits (hereinafter the uninsured motorist proceeding), but subsequently joined in Hanover's attempt to vacate the order entered on default, which found the offending vehicle to be insured by Hanover. In fact, the plaintiff represented to the court, in her submissions in support of Hanover's attempt to vacate its default in the prior uninsured motorist proceeding, that "Hanover insurance is not the insurer of the tortfeasor Olatoyin Fashina. Insurance coverage cannot be created where none exists." Presently, in a remarkable turnabout, and in apparent recognition of her statutory burden of proof, the plaintiff now alleges in her verified complaint in this subsequently-commenced action pursuant to Insurance Law § 3420(a)(2), that "the Fashina insureds duly paid to the defendant [Hanover] all premiums due upon the policy of insurance sued upon." However, the plaintiff indeed knows, as does everyone else involved in this case, that no such policy ever existed.^[FN1] Moreover, the plaintiff does not dispute that, following an exhaustive search, Hanover again established in this action that it never issued a policy of insurance to the operator or owner of the vehicle.

Notwithstanding this undisputed fact, and in reliance upon the prior determination in the uninsured motorist proceeding that the "vehicle operated by Olatoyin Fashina and owned by Olatoyin Fashina, Inc., was insured by Hanover," the majority's conclusion utilizes a fiction to find that a policy of insurance was issued by Hanover to the owner. Without reference to any policy terms and conditions, the fiction is extended by the conclusion that the nonexistent policy also provided coverage for the operator, Olatoyin Fashina.

The uninsured motorist proceeding did not identify the existence of a policy, the terms and conditions thereof, or the limits of coverage. These issues simply were not, and did not need to be, litigated ^[FN2]. Instead, it simply resulted in the limited conclusion, solely for uninsured motorist purposes, that the vehicle was insured by Hanover. The limited scope and nature of the quality of proof necessary to reach that result for that limited purpose is precisely why it is insufficient in an action commenced pursuant to Insurance Law § 3420(a)(2). In the uninsured motorist context, a police report and a registration record from the New York State Department of Motor Vehicles (hereinafter the DMV) can support a prima facie showing sufficient to deny uninsured motorist benefits (see Matter of Allstate Ins. Co. v Anderson, 303 AD2d 496). A copy of a police accident report reciting the insurance code of the "offending vehicle" has been held prima facie sufficient to stay the arbitration of a claim for uninsured motorist benefits (see Matter of Government Empls. Ins. Co. v Williams-Staley, 288 AD2d 471). In other words, in the uninsured motorist context, the carrier seeking to avoid paying these benefits to its insured need only raise the specter of insurance coverage, and the carrier is not required to establish the existence of a policy, the terms and conditions thereof, or coverage limits. Had the plaintiff in this action moved for summary judgment armed only with a copy of a police report with the insurance code or a DMV registration record, I submit that we would summarily deny such an unsubstantiated claim for relief under Insurance Law § 3420(a)(2)^[FN3]. Indeed, such a paucity of evidence would be insufficient to sustain a claim for underinsured benefits where the tortfeasor's policy limits are an essential element of the analysis (see 11 NYCRR 60-2.3 [f][I][c][3]).

Further, I respectfully submit that offending vehicles are not "insureds" embraced within the clear language of Insurance Law § 3420(a)(2). The term "insured," as used in the Insurance Law, has a specific meaning and describes a party to a contract with an "insurer" (see Insurance Law § 1101[a]). An automobile may or may not be a "covered vehicle," depending upon whether it is so designated in the policy issued to the owner-insured (see Fesko v New York Central Mut. Fire Ins. Co., 8 AD3d 615). Under certain conditions contained in the terms and conditions of the policy, operators of "covered vehicles" may be "insureds" under the policy, but vehicles are simply not "insureds" within the meaning of Insurance Law § 1101(a) or § 3420(a)(2). It is the owner-insured who is entitled to indemnification for liability arising out of the ownership, maintenance, and use of a motor vehicle identified within the policy as a "covered vehicle." Here, there is no dispute that an "owner's policy of liability insurance" (Vehicle and Traffic Law § 311[4]) was never issued to the identified owner of the vehicle. In this case, the corporate owner is neither an "insured" nor a judgment debtor. The undisputed facts of this case establish that the operator-judgment debtor is not an "insured" under any policy issued by Hanover.

I also submit that the sanctioning of the continued use of the inaccurate and improper concept and terminology of an "offending vehicle" being insured in analyzing Insurance Law § 3420(a)(2) actions is misplaced. The prior determination in the uninsured motorist proceeding that the offending vehicle was insured did not establish that the judgment debtor-operator was an "insured" under the terms and conditions of an owner's policy of liability insurance issued to an "insured," as statutorily required by Insurance Law § 3420(a)(2)^[FN4]. A finding that a "vehicle" was insured, without identification of the applicable policy, terms and conditions, or coverage limits, is, in my view, wholly insufficient to establish a prima facie case under Insurance Law § 3420(a)(2).

I also find the majority's conclusion contrary to the well-established body of law relating to actions by a judgment creditor against a judgment debtor's insurer. "The rule is well settled that a judgment creditor seeking to enforce a policy insuring the judgment debtor against liability, stands in the shoes of the assured and can recover against the insurer only if the assured could recover under the terms of the policy" (Wenig v Glens Falls Indem. Co., 294 NY 195, 198-199; see D'Arata v New York Cen. Mut. Fire Ins. Co., 76 NY2d 659, 665). In this case, I submit that it may not be seriously contended that the judgment debtor, assuming she had paid the judgment against her, and if armed solely with the general finding that the vehicle she was operating was insured by Hanover, could obtain summary judgment against Hanover and receive indemnity in a declaratory judgment or breach of contract action under the "terms and conditions" of a nonexistent policy.

Moreover, in the context of a motion for summary judgment in an action against an insurer to recover an unsatisfied judgment, this Court has repeatedly denied relief to both insured and insurer for failure to include a copy of the subject policy in their submissions to the motion court (see Empire Ins. Co. v Insurance Corp. of N.Y., 40 AD3d 686; Guishard v General Sec. Ins. Co., 32 AD3d 528, affd 9 NY3d 900; Zurich Am. Ins. Co. v Argonaut Ins. Co., 204 AD2d 314). In all of these decisions, this Court recognized that the existence and submission of the policy were essential elements of the movant's burden of proof. As one commentator has recently noted, "the practice of seeking affirmative relief based upon specific policy provisions without providing the court with proof that the provision actually exists is a dangerous, and indeed, reckless one, upon which the courts clearly frown" (Dachs, Insurance Law, Importance of Providing the Policy to the Court, NYLJ, Nov 2, 2007, at 3, col. 1). 

I also cannot join in further enhancing and refining the fiction by finding that a policy that clearly does not exist, in effect, had coverage limits in the sum of $25,000. Even assuming the prima facie sufficiency of the prior determination that the vehicle was insured, in similar circumstances this Court concluded that the insurer carried the burden, and by necessity therefore had the opportunity, of proving the limit of the relevant coverage (see Kleynshvag v GAN Ins. Co., 21 AD3d 999). In Kleynshvag, the insurer failed to carry this burden. It would seem only logical that if an insurer could offer evidence of the limits of its policy (see Kleynshvag v GAN Ins. Co., 21 AD3d 999), it should be afforded the opportunity to offer evidence, as Hanover has done conclusively here, that the limits of coverage are zero because there simply is no policy at all.

Lastly, I cannot agree to transcend the express statutory language and conclude, in the face of undisputed evidence that no policy was ever issued, that the judgment entered solely upon the default of the operator allows for fictional findings that an "owner's policy of liability insurance" was issued to the owner, such nonexistent policy provided coverage to the operator, and the applicable coverage limit was $25,000. Indeed, in my view the judgment creditor's attempt to collect a judgment in the sum of $930,340 against an insurer she very well knows, and has previously conceded through judicial admissions, never issued a policy insuring the tortfeasor, makes "a mockery of the truth seeking function" of this Court (Festinger v Edrich, 32 AD3d 412, 413). Denial of this relief is warranted, if for no other reason than "as a matter of public policy to protect the integrity" of this Court (see Festinger v Edrich, 32 AD3d at 414).

Therefore, I would deny the plaintiff's motion for summary judgment on the complaint and grant the defendant's cross motion for summary judgment dismissing the complaint. I would thus vote to reverse the judgment dated April 14, 2006, award judgment in favor of the defendant and against the plaintiff dismissing the complaint, and modify the order dated March 2, 2006, accordingly.

In the Matter of Liberty Mutual Insurance Company v Argueta

Cannon & Acosta, LLP, Huntington Station, N.Y. (June Redeker of
counsel), for appellants.
Loccisano & Larkin, Hauppauge, N.Y. (John C. Meszaros of
counsel), for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for underinsured motorist benefits, Jose Argueta and Sarina Chavez appeal from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated January 22, 2008, which granted the petition.

ORDERED that the order is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.

On February 13, 2006, the appellants, Jose Argueta, the driver, and Sarina Chavez, the passenger, were involved in an automobile accident with another vehicle owned and operated by nonparty Jose P. Hernandez (hereinafter the tortfeasor's vehicle). Nonparty Samuel Garcia was a passenger in the tortfeasor's vehicle. The appellants' vehicle was owned by nonparty Elvia Gonzalez, and covered by a policy of insurance issued by the petitioner (hereinafter the petitioner's policy). The tortfeasor's vehicle was covered by a policy issued by nonparty Nationwide Insurance Company (hereinafter the tortfeasor's insurer).

Under the petitioner's policy, the limits for both third-party bodily injury liability and for the supplementary uninsured/underinsured motorists endorsement (hereinafter the SUM endorsement) were in the amount of $25,000 for each person and $50,000 for each accident, the same limits as in the tortfeasor's policy. As a result of the accident, the tortfeasor's insurer paid the sum of $16,666.66 to each of the appellants and to Garcia, thereby exhausting the $50,000 per-accident limit under the tortfeasor's policy. The appellants thereafter sought additional benefits under the SUM endorsement of Gonzalez's policy with the petitioner. The petitioner denied their claims, and the appellants demanded arbitration. The Supreme Court granted the petition to permanently stay arbitration. We reverse.

An insurer which fails to seek a stay of arbitration within 20 days after being served with a notice of intention or demand to arbitrate under CPLR 7503(c) is generally precluded from objecting to the arbitration thereafter (see Matter of Steck [State Farm Ins. Co.], 89 NY2d 1082, 1084; Matter of Interboro Ins. Co. v Maragh, 51 AD3d 1024, 1025; Matter of State Farm Ins. Co. v Williams, 50 AD3d 807, 808-809). Here, the proceeding was commenced more than 20 days after the notice of intention to arbitrate was served on the petitioner. Further, while an otherwise untimely petition to stay arbitration may be entertained when its basis is that the parties never agreed to arbitrate (see Matter of Matarasso [Continental Cas. Co.], 56 NY2d 264), such is not the case here where it is undisputed that the appellants generally are covered under the petitioner's policy.

Marte v. New York City Transit Authority

Dinkes & Schwitzer, New York, N.Y. (Christian R. Oliver of
counsel), for appellant.
Picciano & Scahill, P.C., Westbury, N.Y. (Gilbert J. Hardy and
Francis J. Scahill of counsel), for
respondent A. Magarin-Adames.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Lane, J.), entered July 2, 2007, as granted those branches of the respective motions of the defendant A. Magarin-Adames and the defendants New York City Transit Authority and Jose Contreras which were for summary judgment dismissing so much of the complaint insofar as asserted against each of them as alleged injuries to her lumbar spine, cervical spine, and right knee on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) to those parts of her body.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the respective motions of the defendant A. Magarin-Adames and the defendants New York City Transit Authority and Jose Contreras, which were for summary judgment dismissing so much of the complaint insofar as asserted against them as alleged that the plaintiff sustained a permanent consequential limitation of use of a body organ or member or a significant limitation of use of a body function or system within the meaning of Insurance Law § 5102(d) as to the alleged injuries to her cervical spine and right knee, and substituting therefor a provision denying those branches of the motions; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable to the plaintiff.

Since the Supreme Court found that there were triable issues of fact regarding whether the plaintiff sustained a serious injury to her right ankle, she is entitled to seek recovery for all injuries allegedly incurred as a result of the accident (see Shtesl v Kokoros, 56 AD3d 544; Rizzo v DeSimone, 6 AD3d 600; Prieston v Massaro, 107 AD2d 742,743). Accordingly, the Supreme Court erred in granting summary judgment dismissing so much of the complaint as alleged injuries to the plaintiff's cervical spine and right knee.

As the plaintiff did not allege in her bill of particulars that she injured her lumbar spine, any claims concerning her lumbar spine were not considered by this Court, and should not have been considered by the Supreme Court (see Felix v Wildred, 54 AD3d 891; Sharma v Diaz, 48 AD3d 442, 443; Ifrach v Neiman, 306 AD2d 380, 381).

Hadley v. Keren

Napoli Bern Ripka, LLP, New York, N.Y. (Denise A. Rubin of
counsel), for appellants.
Cohen, Kuhn & Associates, New York, N.Y. (Jonathan D.
Gorham of counsel), for respondent
Ofir A. Keren (joining in the other
respondents' briefs).
Paul F. McAloon, P.C., New York, N.Y., for respondents Marie
Christina Warren and United Services
Automobile Association.
Rivkin Radler LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl
F. Korman, and Melissa M. Murphy of
counsel), for respondent Jose A.
Miranda.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated June 13, 2007, as granted the separate motions of the defendants Marie Christine Warren and United Services Automobile Association, and the defendant Jose M. Miranda, for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and granted those branches of the separate cross motions of the defendant Ofir A. Keren and the defendant Gennady Diefvsky which were for summary judgment dismissing the complaint insofar as asserted against each of them 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 one bill of costs payable to the defendants appearing separately and filing separate briefs.

The defendants established, prima facie, that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiffs failed to raise a triable issue of fact (see CPLR 3212[b]).

Muzashvili v. Vicente

Manuel A. Romero, P.C., Brooklyn, N.Y. (Jonathan M. Rivera of
counsel), for appellant.
DeSena & Sweeney, LLP, Hauppauge, N.Y. (Shawn P.
O'Shaughnessy of counsel), for respondents
Solis F. Vicente and Oliva Garcia.
Edward Garfinkel (Fiedelman & McGaw, Jericho, N.Y. [Ross
P. Masler], of counsel), for respondent
Alla Kats-Kagan.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Balter, J.), dated August 20, 2007, which granted that branch of the motion of the defendant Alla Kats-Kagan which was for summary judgment dismissing the complaint insofar as asserted against her on the grounds of no liability and that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and granted the separate motion of the defendants Solis F. Vicente and Oliva Garcia which was for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). In opposition, the plaintiff failed to raise a triable issue of fact (see McRae v Alauddin, 51 AD3d 987). Accordingly, the Supreme Court properly granted that branch of the motion of the defendant Kats-Kagan which was for summary judgment dismissing the complaint insofar as asserted against her, and the separate motion of the defendants Vicente and Garcia, which was for summary judgment dismissing the complaint insofar as asserted against them, on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

In light of our determination, we need not address the plaintiff's contention that the defendant Kats-Kagan should not have been awarded summary judgment on the additional ground that she was not liable, as a matter of law, for the happening of the subject accident.

Liautaud v. Joseph

Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (James M.
Carman and Michael F. Ingham of counsel), for appellants.
Lever & Stolzenberg, LLP, White Plains, N.Y. (David Lever
and Terence James Cortelli of
counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Jeremy V. Joseph and Budget Rent-A-Car, Inc., appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated January 24, 2008, which, in effect, denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The appellants failed to make 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 Toure v Avis Rent A Car Sys., 98 NY2d 345, 350; Gaddy v Eyler, 79 NY2d 955, 956-957). In her bill of particulars, the plaintiff alleged that as a result of the accident, she sustained certain injuries to, inter alia, her cervical spine, lumbar spine, and right knee. The appellants failed to establish prima facie that these alleged injuries were not causally related to the accident, or were not serious within the meaning of Insurance Law § 5102(d) (see McKenzie v Redl, 47 AD3d 775, 776-777; Dettori v Molzon, 306 AD2d 308, 309; Julemis v Gates, 281 AD2d 396).

Since the appellants failed to meet their initial burden of establishing their prima facie entitlement to summary judgment, it is unnecessary to consider the sufficiency of the plaintiff's papers in opposition (see McKenzie v Redl, 47 AD3d at 777; Dettori v Molzon, 306 AD2d at 309; Julemis v Gates, 281 AD2d at 396-397).

Crespo v. Aparicio

Cannon & Acosta LLP, Huntington Station, N.Y. (June Redeker
of counsel), for appellants.
Eschen, Frenkel & Weisman, LLP, Bay Shore, N.Y. (Robert I.
Meyers of counsel), for respondent
Pablo E. Aparicio.
Richard T. Lau, Jericho, N.Y. (Keith E. Ford of counsel), for
respondents Steven D. Sebastopoli and
S.A. Sebastopoli.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiffs, Jose Crespo, Adonis Segovia, and Rutilio Segovia, appeal from an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated September 13, 2007, which granted those branches of the motion of the defendant Pablo E. Aparicio and the separate motion of the defendants Steven D. Sebastopoli and S.A. Sebastopoli which were for summary judgment dismissing the complaint insofar as asserted against them by the plaintiffs Jose Crespo and Adonis Segovia on the ground that neither of those plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the appeal by the plaintiff Rutilio Segovia is dismissed, as that plaintiff is not aggrieved by the order appealed from (see CPLR 5511); and it is further,

ORDERED that the order is reversed insofar as appealed from by the plaintiffs Jose Crespo and Adonis Segovia, on the law, and those branches of the motion of the defendant Pablo E. Aparicio and the separate motion of the defendants Steven D. Sebastopoli and S.A. Sebastopoli which were for summary judgment dismissing the complaint insofar as asserted against them by the plaintiffs Jose Crespo and Adonis Segovia on the ground that neither of those plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) are denied; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs Jose Crespo and Adonis Segovia payable by the respondents appearing separately and filing separate briefs.

The Supreme Court properly determined that the defendants, who relied on the same submissions in support of their respective motions, met their prima facie burdens by showing that neither the plaintiff Jose Crespo nor the plaintiff Adonis Segovia (hereinafter together 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).

However, the Supreme Court should have denied the motions because, in opposition to the defendants' prima facie showing, the plaintiffs raised triable issues of fact. The respective affirmations of Dr. Jose Perez, one of the plaintiffs' treating physicians, revealed significant range of motion limitations in their respective lumbar and cervical spines based on objective range of motion testing following both contemporaneous and recent examinations of the plaintiffs. Moreover, in his affirmations, Dr. Perez properly noted the findings contained in the plaintiffs' respective magnetic resonance imaging reports concerning their cervical and lumbar spines, and reviewed those films personally, which revealed, inter alia, that Crespo had disc bulges at C5-6, L3-4 and L5-S1, and Adonis had disc hernations at C3-4 through C6-7 and at L3-4 through L5-S1. Dr. Perez concluded, in his affirmations, that the injuries to the plaintiffs' respective cervical and lumbar spines were the result of the subject accident, and were permanent. Dr. Perez opined that the injuries to the plaintiffs amounted to significant limitations of use of their respective lumbar and cervical spines. Thus, the affirmations of Dr. Perez were sufficient to raise triable issues of fact as to whether the plaintiffs sustained permanent consequential or significant limitations of use of their respective cervical and lumbar spines as a result of the subject accident (see Prescott v Amadoujalloh, 55 AD3d 584; Altreche v Gilmar Masonry Corp., 49 AD3d 479; Lim v Tiburzi, 36 AD3d 671). In his affirmations, Dr. Perez also addressed the findings of the defendants' examining radiologist, and disagreed with that expert's findings, specifically of the existence of degeneration.

Dr. Perez also adequately explained any significant gaps in the plaintiffs' respective treatment histories (see Pommells v Perez, 4 NY3d 566, 577), stating that the plaintiffs stopped treatment when they did because both had reached their maximum medical benefit from their treatments at those times.

Azor v. Torado

Laurence M. Savedoff, PLLC, Bronx, N.Y., for appellant.
Martin, Fallon & MullÉ, Huntington, N.Y. (Richard C. MullÉ
of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Held, J.), dated April 10, 2008, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352; Gaddy v Eyler, 79 NY2d 955, 956-957). However, contrary to the Supreme Court's determination, the plaintiff's opposition was sufficient to raise a triable issue of fact as to whether he had sustained a serious injury. In addition to evidence of disc herniations and bulges causally related to the accident, the plaintiff's treating physician stated that he had found that the plaintiff's cervical and lumbar ranges of motion were significantly restricted as quantified in his affirmation (see Paz v Wydrzynski, 41 AD3d 453). In addition, the plaintiff's physician adequately explained the gap in the plaintiff's treatment (see Pommells v Perez, 4 NY3d 566, 577).

Bagot v. Singh

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellants.
Louis F. Simonetti, Jr., Jericho, N.Y., for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Saitta, J.), dated February 7, 2008, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants failed to meet their prima facie burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motion, the defendants relied upon, inter alia, the affirmed medical report of their examining orthopedic surgeon in which he noted the existence of a significant limitation in the plaintiff's left knee range of motion (see Hurtte v Budget Roadside Care, 54 AD3d 362; Jenkins v Miled Hacking Corp., 43 AD3d 393; Bentivegna v Stein, 42 AD3d 555; Zamaniyan v Vrabeck, 41 AD3d 472). Under the circumstances, it is unnecessary to consider the sufficiency of the plaintiff's opposition papers (see Hurtte v Budget Roadside Care, 54 AD3d 362; Coscia v 938 Trading Corp., 283 AD2d 538).

Cohen v. Monteleone

Robert S. Fader, Lake Success, N.Y., for appellant.
Lewis Johs Avallone Aviles, LLP, Melville, N.Y. (Mara E.
Cella and Michael G. Kruzynski of
counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Nassau County (Spinola, J.), dated January 30, 2008, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

The Supreme Court erred in concluding that the defendant met her prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of her motion, the defendant relied upon, inter alia, the affirmed medical report of her examining orthopedic surgeon. In his report he noted, upon his examination of the plaintiff, the existence of significant limitations in the range of motion of the plaintiff's lumbar spine (see Hurtte v Budget Roadside Care, 54 AD3d 362; Jenkins v Miled Hacking Corp., 43 AD3d 393; Bentivegna v Stein, 42 AD3d 555; Zamaniyan v Vrabeck, 41 AD3d 472). Under the circumstances, it is unnecessary to consider the sufficiency of the plaintiff's opposition papers (see Hurtte v Budget Roadside Care, 54 AD3d 362; Coscia v 938 Trading Corp., 283 AD2d 538).