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Coverage Pointers - Volume X, No. 17

Untitled Document

Dear Coverage Pointers Subscribers:

With the crash of the Continental Airlines flight in our community, it's been a very sad and introspective time in Western New York.  While our firm lost nobody from its immediate family, there were first degree losses of neighbors, friends of family members and the like that remind us of how fragile life can be.  Let us hope for better times.

A pardon to those who like reading Friday's issue on Thursday night.  I'm heading to the land of coconuts and grass skirts and am waylaid in a Quality Inn tonight by the San Francisco Airport. 

Katherine Fijal to join the Hurwitz & Fine Coverage Team
I am delighted to report to you that as of March 2nd, Katherine Fijal, so well known to many of you as a fabulous coverage attorney with Lustig & Brown, is joining the H&F staff as partner.  She has two decades of experience as a coverage practitioner and she adds additional strength to our expanding department.  She has also litigated agents and broker errors and omissions coverage matters and has handled appellate work in the field. For those of you who have worked with her in the past we know you understand why we added her.  Her depth of experience, talent and common-sense approach to coverage problems will work perfectly with our style of practice.

LinkedIn and the Voice of Coverage Pointers


As a reminder, to participate in interactive discussions of NY insurance law, we have opened and are operating a LinkedIn group, New York Insurance, which can be found here: www.linkedin.com/groups?gid=1777061. Our membership has about doubled since last issue, from 48 to 91.

One Hundred Years Ago Today:

New York Times
February 20, 1909, Page 14

WOMEN WANT A COURT.
Tell the Courts' Investigating Board
How Badly One is Needed

The advisability of establishing in this city an entirely separate "Woman's Court," to deal with cases involving women exclusively; was discussed yesterday before the Lower Courts Investigating Commission, by witnesses connected with the various woman reform bodies of New York.

Mrs. Gabrielle Stewart Mulliner, Chairman of the State Federation of Women's Clubs, said she believed a woman's court, with a separate court house, detention house' and woman's prison, should be established. Miss Alice Smith, head probation officer, deprecated the present system of having women report at the court house, saying that she believed that young girls on probation made it an excuse to leave home at night. 

Mrs. Cornelia K. Hood of the Legal Aid Society caused a smile while discussing the treatment of "family relation cases," by testifying that "men are not all bad, but they are thoughtless find careless and forgetful of their obligations as husbands and fathers."

Editor's Note:  Gabrielle Stewart Mulliner (1872-1919) was a lawyer and active in women's rights.  She is credited with being the driving force behind a separate court for domestic relations issues which was created in 1910.  That court - eventually named the New York City Women's Court - was primarily used for the handling of prostitution cases and was maintained until 1967.  For an interesting history of that court, click here Ms. Mulliner is said to have approved of the law profession for women "if a woman must earn an income" but noted that "[a] cradle is more interesting than a letter-file at the end of a day" ."and no client can be as desirable as one's own husband."

Earl's Pearls:

All I can tell you about Earl's column this week, is that it reflects his special hunger for pizza-related litigation.  Pass the pepperoni.

Audrey Seeley's Words of the Week:

It's February in Buffalo.  Need I say more?  Actually, I can.  As I sit in my office, I think about the fact that Dan is on his way to Hawaii, yes Hawaii, for the FDCC winter meeting.  I wish March were here so I would at least have a valid reasonable excuse to be wearing green right now.  While the meeting is a working one, where I know Dan is walking around with his Blue tooth and Blackberry bringing in new files and answering client calls and emails thousands of miles away, it's HAWAII and at least 60 degrees warmer than Buffalo.  How can you not be jealous?

There are a number of things to report in this edition.  The first is a new Insurance Department Opinion regarding claims handling practices for no-fault insurers.  It is just a reminder that an insurer cannot deny a claim for the applicant's failure to provide a timely NF-2 when the applicant previously provided an alternate, acceptable written notice of claim.  The second is an interesting Appellate Division, Second Department case that addresses the issue as to whether the regulation tolling accrual of interest applies to a policyholder or to both the policyholder and the medical provider.  If you would like a complete copy of the decision email me at [email protected] and I will sent it to you.  The answer it the regulation applies to both.

Finally, just a reminder of a CLE/training program from April 1-3 in Chicago by DRI entitled the Insurance Coverage and Claims Institute.  It is a great program, which is not replicated anywhere else.  The speakers include top insurance executives and a US Court of Appeals Judge discussing topics like management of defense costs, a discussion on the travails of those who have attempted to illegitimately profit from the Katrina catastrophe, and burgeoning issues from the mortgage crisis.  This program also presents a great marketing and networking opportunity as I was advised that around 450 people attended it last year.  I will be attending so if you are attending please let me know as I would like to ensure that I catch up with you at the program.  If you need a copy of the brochure email me at [email protected] and I will send it to you.

Audrey A. Seeley
[email protected]

From the Land of Asbestos Litigation, with thanks to Christopher Potenza:

We have an active asbestos defense practice handled primarily by Chris Potenza who travels the state representing defendants in this very specialized field.  Chris wanted to share a recent

Asbestos Claims Repel the Flame of Owner/Contractor Vicarious Liability

A recent attempt by a plaintiff in asbestos litigation to attach vicarious liability to owners/contractors in construction settings by way of New York Labor Law § 241(6) was recently smothered by the First Department.  Labor Law § 241(6) imposes vicarious liability on owners and/or general contractors who are free from negligence for acts of subcontractors in construction, demolition, and excavation settings.  The intent of the statute is to give workers in these fields added protection (beyond Workers' Compensation) by imposing certain non-delegable duties on owners and/or contractors, regardless of whether the owner/contractor controlled or supervised the work performed.  Vicarious liability to owners/contractors attaches for violations of only specific regulations contained in the Department of Labor Regulations at Title 12 NYCRR part 23 ("Industrial Code").  The important distinction for 241(6) analysis is whether the alleged part 23 code violation is an unequivocal and specific command and not a mere reiteration of the common-law negligence standard of care.  The vast majority of litigation involving 241(6) is whether the code alleged to be violated is specific or general.

In Nostrom v. A.W.Chesterton, a February 3, 2009 decision which can be found here: http://www.nycourts.gov/reporter/3dseries/2009/2009_00581.htm, the plaintiff, suffering from an asbestos related disease, attempted to hold certain owners vicariously liable under 241(6) for activities performed on their premises that released asbestos fibers into the air.   Plaintiff did not allege violations of the Industrial Code at Part 23 (as required by the statute), but rather alleged Labor Law § 241(6) liability premised on code violations at Part 12, which contains regulations prohibiting dangerous air contaminants in the workplace. 

 

In affirming the dismissal the Labor Law § 241(6) claims, the First Department held that 241(6) liability applies only to part 23 regulations ("Protection  in Construction, Demolition and Excavation Operations") and not part 12 regulations ("Control of Air Contaminants").  The Court further held that in any event the "regulations invoked by plaintiff are not sufficiently specific to support a section 241(6) claim for asbestos-related injury.  Neither contains specific methods, standards, directives or controls on work processes involving asbestos-containing materials."

With the number of viable non-bankrupt asbestos defendants dwindling, and plaintiffs' firms constantly seeking new deep pockets to prosecute their claims against, this ruling protects a vast majority of  potentially "new" asbestos defendants who had no independent negligence of their own, but may have been found vicariously liable by statute.

 

V. Christopher Potenza
[email protected]

FDCC Litigation Management College and Graduate Program:
The FDCC is pleased to remind you that the annual Litigation Management College and Graduate Program will be held again this year, from June 14-18, at Emory University in Atlanta.  The programs are the FDCC's effort to give back to the insurance industry and corporations involved in the defense of civil litigation, by providing intensive claims training which simply cannot be found anywhere else.  Brochures highlighting the two incredible programs are enclosed.  You can also obtain information and see photographs of the Emory conference center at the FDCC website, www.thefederation.org. We urge you to attend, and to pass this message on to your colleagues or clients who would benefit from the programs.

Today's difficult economic times make the Litigation Management College and Graduate Program even more valuable to the insurance industry, corporations, and individual claims professionals:

  • The faculty consists of some of the top defense trial and coverage lawyers in the country and senior insurance industry claims executives, each of whom volunteers his or her time to come to Atlanta to teach and work closely with the students during this multi-day intensive experience.  You will not find elsewhere this much talent offering their skills and experience.
  • Top jury consultants provide their insights and also work on a one-on-one basis with the students to hone their skills at testifying.
  • Dr. Audrey Nelson is an internationally recognized consultant and seminar leader, with expertise in communication, interpersonal skills, and conflict management, and who teaches our students how to improve their abilities in these critical areas as part of their claims handling duties.
  • John Patrick Dolan, a world renowned legal scholar and expert in negotiation, spends a full day with the College students, teaching hands-on negotiation tools and tactics.
  • It is very difficult, if not impossible, in today's times to conduct intensive training programs in-house.  The College and Graduate Program fill that need.  If there was ever a time when insurance companies and corporations need to make sure that their claims are being handled by the most skilled professionals, this is it.

If the skills learned at the College and Graduate Program allow an insurance company or corporation to save even a few thousand dollars on just one file, the cost of the program is recouped.  The lessons taught at the College and Graduate Program help the claims professional to incorporate those skills into his or her job on a daily basis, reaping the benefits over and over again.

The College and Graduate Program have consistently received rave reviews from the students.  Many insurance companies and corporations who have sent their employees to the College and the Graduate Program acknowledge the investment by sending more students year after year after year.  2009 is the perfect year for you, your colleagues, or your employees to take advantage of this unique educational opportunity.

Here are the Headlines from This Week's Issue:

KOHANE'S COVERAGE CORNER
Dan D. Kohane
[email protected]

  • Reservation of Rights is Not a Disclaimer, Even Where Carrier Cannot Find Policies.  If it Raises Some Policy Defenses, it Must Raise All.  Good Discussion About "Reconstructed Policies" as Well
  • Fight between Carrier and it's TPA Leads to Broad Discovery
  • Late Notice and Lack of Coverage Leads to Carrier Victory.  A Reminder - No Need to Disclaim if No Coverage Granted
  • Enjoy Additional Insured Issues in Construction Contracts? Then this is a Must Read.  Fourth Department Reminds Us that Policies, Not Construction Contracts, Govern Primacy of Coverage.  Moreover, Negligence of Named Insured is Irrelevant and Immaterial to Coverage Afforded to Additional Insured, if AI Provisions Cover "Operations Performed"
  • Well, That's a Relief.  Late Notice Disclaimer Sent 13 Days after First Notice is Considered Timely
  • Premises Liability Coverage Provides Coverage in the Disjunctive

MARGO'S MUSINGS ON SERIOUS INJURY UNDER NEW YORK NO FAULT
Margo M. Lagueras
[email protected]

  • Unaffirmed, Unexplained and Non-Contemporaneous Reports Result in Grant of Summary Judgment Even to Nonappealing Party
  • Define "Normal"
  • Disc Bulges and Protrusions Do Not a Serious Injury Make
  • Question of Fact Raised By Defendants' Expert Precludes Grant of Summary Judgment to Co-Defendants
  • Remember, Specifics and Comparisons!
  • Defendants in the First Accident Are Denied Severance From Defendant in the Second Accident
  • Failure to Refute Evidence of Preexisting Degenerative Condition and Congenital Defect Results in Plaintiff's Failure to Establish Causation
  • Summary Judgment on Counterclaims Is Awarded Where Plaintiff Did Not Sustain a Serious Injury
  • Surgery Three Months After Accident Raises Triable Issue of Fact
  • Failure to Submit Competent Evidence Dooms the Claim
  • Termination of No-Fault Benefits Can Adequately Explain Gap in Treatment
  • Unexplained Gap in Treatment and Mere Subjective Complaints of Pain Cause Claim to Succumb to Summary Judgment
  • Stipulation Discontinuing Action on the Merits Is Not a Release That Extinguishes a Cross Claim

AUDREY'S ANGLES ON NO-FAULT
Audrey Seeley
[email protected]
Arbitration

  • Insurer's Take Note: In Close Call Cases Arbitrator will Consider Where Your Expert is Located

Litigation

  • Tolling of Accrual of Statutory Interest Applies to Policyholders and Medical Providers
  • Failure to Object to Defect in Report Results in Waiver of Argument
  • Plaintiff Fails to Establish Prima Facie Case - Insufficient Affidavit Submitted
  • Insurer Establishes Defense of Failure to Appear for IME
  • Insurer's Affidavit Fails to Establish Issuance of Timely Denial
  • Insurer Established Defense of Failure to Appear for IME
  • So Close - Insurer's Sole Preserved Defense Defeated for Lack of Sufficient Evidence

Insurance Department Opinion

  • Circular Letter No. 3: Unfair Claim Settlement Practices - No-Fault Notice of Claim Provisions

PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper
[email protected]

  • Court Reinstates a Claim for Consequential Damages Post Bi-Economy
  • Homeowner's Exclusion for Contamination Held Ambiguous
  • Intent is NOT an Element in Proving a Material Misrepresentation
  • Time-restricted Authorizations Were Appropriate

 

EARL'S PEARLS
Earl K. Cantwell, II
[email protected]

Never Use the Monkey Bars after Eating Pizza for Lunch

 

DUQUIN - THE DUKE OF LEAD
Scott M. Duquin
[email protected]
Part V - Value

Thanks for your continued kind words.  See you in a couple of weeks.

Dan

New Page 2

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]

 

2/19/09            Estee Lauder Inc. v. OneBeacon Insurance Group, LLC,

Appellate Division, First Department
Reservation of Rights is Not a Disclaimer, Even Where Carrier Cannot Find Policies.  If it Raises Some Policy Defenses, it Must Raise All.  Good Discussion About “Reconstructed Policies” as Well
There’s a lot of great stuff in this decision and it takes a while to work through it.  It seemed that the insurer could not find copies of older policies covering environmental risks, although there was extrinsic proof that they likely existed.  After a while, it gave up trying to find them and so advised the purported policy holder.  Later, when sued, the insurer maintained the same position, but indicated that if the policies did exist, certain provisions and exclusions would lead to a finding of no coverage.  Late notice was not raised.

The court found that, in fact, the policies existed and there is a good exercise in reconstructing missing policies in the decision.

Importantly, the failure to raise late notice as a defense –even with a broad reservation of rights – led to a waiver of that condition as a ground for disclaimer.

For those of you, who still believe in reservations of rights, please tape the court’s language to your computer:

 Thus, an erroneous conclusion of law — namely, that as long as an insurer claims or reserves the right to do so, it may disclaim coverage on one ground and thereafter disclaim coverage on another ground even though it had actual or constructive knowledge of the latter ground at the time of the initial disclaimer — was the basis for Supreme Court's conclusion that OneBeacon had not waived its right to assert a defense of late notice.

2/19/09            Clarendon National Insurance Co. v. Atlantic Risk Management, Inc.
Appellate Division, First Department
Fight between Carrier and it’s TPA Leads to Broad Discovery
Not sue what Clarendon and its long time TPA Atlantic are battling over.  However, Atlantic was able to compel Clarendon to produce, at Clarendon’s expense, every claim file that Atlantic handled over eight years.  Hope that the copy machine is working.

2/17/09            Essex Insurance Company v. Oakwood Construction Corp.

Appellate Division, Second Department
Late Notice and Lack of Coverage Leads to Carrier Victory.  A Reminder – No Need to Disclaim if No Coverage Granted
With thanks to Steven Fried, the victorious lawyer, for the factual summary:

In March, 2003, Essex Insurance Company received its first notice of a May 11, 2002 accident where Mr. Timothy Case was rendered quadriplegic after falling off of an ATV he was joyriding with his brother in law, Robert Thornton, President of Oakwood Construction. Essex insured Oakwood under a general liability policy in effect on the date of Mr. Thornton's accident. On the day after receiving notice of the incident, Essex commenced an investigation, but was unable to meet with Mr. Thornton, unable to confirm ownership of the ATV by Oakwood, and encountered resistance from the claimant's attorney, who refused to provide facts about the incident. Essex's investigator was able to meet with Mr. Thornton approximately two and a half weeks after Essex first receives notice of the incident. Mr. Thornton asserted at the interview that the ATV in question was owned by Oakwood Construction, but that the accident happened when he and Mr. Case were joyriding on a Saturday afternoon in a field near their homes. Within ten days of receiving a report from that interview, Essex disclaimed coverage, asserting, among other things, that the commercial general liability policy it issued to Oakwood Construction for its carpentry business did not cover an accident that took place on a Saturday afternoon when Mr. Case was joyriding an ATV in a field near his home, and that, in any event, Oakwood's notice of the incident, assuming that the ATV in question was even owned by Oakwood (a fact that Oakwood could never substantiate during discovery), was untimely. Essex also asserted that Oakwood's notice of Mr. Case's claim was untimely in that Mr. Thornton admitted to receiving a phone call in January, 2003 from Mr. Case's attorney, advising that Mr. Case would be filing suit against Oakwood, and received a letter to that effect shortly after, but did not report the claim to Essex until the end of March, 2003. Essex moved for summary judgment. Oakwood opposed the motion, and cross-moved for summary judgment, arguing that, despite the fact that Mr. Thornton of Oakwood witnessed the accident, and was aware of his brother in law's quadriplegia on May 11, 2002, its March, 2003 notice of the accident was timely because it had no reason to expect a claim against it, and that Essex's disclaimer was untimely, voiding the disclaimer.

 

The trial court granted Essex's motion for summary judgment, holding that Oakwood's notice of the May 11, 2002 incident was untimely, and that its notice of the claim was late, voiding coverage under the policy. The trial court did not address Essex's argument that the incident fell outside of the coverage provided by the policy, but noted that Essex's investigation was prompt and reasonable, and that its disclaimer was timely. Oakwood appealed.

 

The Second Department just affirmed the trial court's decision, noting that Oakwood's notice of the incident was late, that its notice of Mr. Case's claim was late, that Oakwood failed to demonstrate a good faith belief in non-liability so as to excuse the lateness of its notice of the incident, and noting that Mr. Case's injury did not fall within the coverage provided by Essex's policy, and that Essex's disclaimer was timely under the circumstances.

Editor’s Note:  Congrats to Steve Fried at the NYC office of Clausen Miller for this one.  Steve provides the following additional insight into the decision, which itself is bare of information about the underlying facts:

 

2/17/09            Gulf Insurance Company v. Stradford

Appellate Division, Second Department

Timeliness of Notice of Disclaimer for Lack of Cooperation is Question of Fact

The question of when an insurance carrier must deny coverage for lack of cooperation is never an easy one to resolve.  How does an insurer know when the insured’s cooperation – particularly if it is intermittent – has risen to the level that it justifies a denial?  This appellate court found that in almost every case, the timeliness of the disclaimer is a question of fact to be resolved by a fact-finder.

 

2/11/09            David Christa Construction, Inc. v. American Home Assurance Company
Appellate Division, Fourth Department

Enjoy Additional Insured Issues in Construction Contracts? Then this is a Must Read.  Fourth Department Reminds Us that Policies, Not Construction Contracts, Govern Primacy of Coverage.  Moreover, Negligence of Named Insured is Irrelevant and Immaterial to Coverage Afforded to Additional Insured, if AI Provisions Cover “Operations Performed”
Roosa, an employee of Spring Lake Excavating (Spring) was injured while working on a construction project at Cornell University (project). Plaintiff David Christa Construction, Inc. (Christa) was the general contractor on the project and held a commercial general liability insurance policy from United Pacific Insurance Company (United). In its subcontract with Christa, Spring Lake agreed to procure liability insurance naming Christa as an additional insured. Spring obtained a CGL policy from American Home (American) that included as an additional insured any organization to which Spring Lake "agreed, by written contract, to provide coverage, but only with respect to operations performed by or on behalf of" Spring Lake. Roosa sued Christa, and Christa subsequently commenced a third-party action against Spring.

While this appeal was pending, the jury rendered a verdict against Christa and in favor of Spring Lake in the trial of Christa's third-party action against Spring Lake in the underlying action, and the court dismissed the third-party complaint.

The Fourth Department found:

  • Both the United and Amercian policies insure the Christa and when read together, the subcontractor’s policy is primary and the GC’s policy is excess.
  • It is the terms of the policy, not the terms of the construction contract that govern the primacy of coverage.
  • The additional insured provision of American’s policy was triggered when Spring Lake agreed in the subcontract agreement to obtain liability insurance and to list Christa as an additional insured.
  • The well-settled definition of the term "additional insured" is "an entity enjoying the same protection as the named insured".
  • Inasmuch as Christa was an additional insured, American likewise was obligated to provide Christa with excess coverage unless other insurance available to Christa provided only excess, rather than primary, coverage.
  • United's policy unambiguously provided that it was to be excess over any other insurance covering Christa and on which it was not the named insured, which would include defendant's policy. Therefore United's policy provided Christa with excess coverage over defendant's policy.
  • Spring’s carrier, American, is required to defend and indemnify Christa in the underlying action, regardless of the dismissal of the third-party complaint against Spring. The language of defendant's additional insured provision focuses not upon the precise cause of the accident, but upon the general nature of the operation in the course of which the injury was sustained.  Since Roosa was employed by Spring and injured while performing work for Spring, his injuries arose out of the “operations performed” even if not caused by Spring’s negligence.

2/10/09            Roules v. State Farm Insurance Companies
Appellate Division, Second Department
Well, That’s a Relief.  Late Notice Disclaimer Sent 13 Days after First Notice is Considered Timely

This would only be a surprise if the case came out the other way.  Insurer disclaimed coverage on late notice a mere 13 days after first learning of accident (and tried to contact the insured during those 13 days).  Court found disclaimer timely.

 

2/6/09              Cataract Sports & Entertainment Group, LLC v. Essex Ins. Co.
Appellate Division, Fourth Department
Premises Liability Coverage Provides Coverage in the Disjunctive
The policy in effect provided liability coverage for bodily injury arising out of the "ownership, maintenance or use of the premises" or arising out of the "project shown in the Schedule," i.e., the golf driving range. Because the policy identifies the insured premises in the disjunctive, coverage available for activities other than golfing, including a premises fall.

 

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

Margo M. Lagueras

[email protected]

 

2/17/09            Garcia v. Lopez

Appellate Division, Second Department

Unaffirmed, Unexplained and Non-Contemporaneous Reports Result in Grant of Summary Judgment Even to Nonappealing Party

It’s all good?  Not here.  The Court “searched the record” and granted summary judgment dismissing the complaint even to the non-appealing defendant where: plaintiff’s MRI of the left shoulder was unaffirmed; the affirmed reports noting range-of-motion limitations were from examinations four years after the accident and no evidence was offered that was contemporaneous with the accident; the affirmed MRI of the lumbar spine noted a herniation and that of the cervical spine osteophyte formations, but no opinion was expressed as to the causation of either; there was no adequate explanation for the gap in treatment; and, no competent medical evidence was offered in support of plaintiff’s 90/180-day claim.

 

2/17/09            Giammalva v. Winters

Appellate Division, Second Department

Define “Normal”

“Normal” trips up defendants’ expert.  The expert orthopedic surgeon’s report was affirmed (so far so good), but it did not compare the range-of-motion findings of plaintiff lumbar spine with what is normal.  And while the report noted that plaintiff had “normal” range-of-motion in his shoulders, it did not state what objective tests were used to arrive at that “normal” conclusion.

 

2/17/09            Ponciano v. Schaefer

Appellate Division, Second Department

Disc Bulges and Protrusions Do Not a Serious Injury Make

At least not without that well-known additional requirement of objective evidence of the extent and duration of the limitations.  Once again, plaintiffs try, and fail, to support their claims with unaffirmed reports, or with reports of examinations where no range-or-motion testing was performed, or with reports that do not explain gaps in treatment.  Here, even the reports that were affirmed failed because they merely noted the existence of disc bulges or protrusions but did not offer any objective evidence of the extent and duration of the physical limitations allegedly resulting from the injuries as required to prove serious injury.

 

2/17/09            Sirma v. Beach

Appellate Division, Second Department

Question of Fact Raised By Defendants’ Expert Precludes Grant of Summary Judgment to Co-Defendants

Don’t let this short and sweet caption fool you.  There were four plaintiffs, all passengers in a taxi.  There was a taxi owner and a driver, and an automobile owner and a driver.  There were motions and cross motions and partial grants and partial dismissals.  In the end, both defendants prevail as against three of the four plaintiffs.  However, they both fail as regards plaintiff Sirma. Although the taxi defendants’ orthopedist concluded that Sirma did not suffer from an accident-related serious injury, that same affirmation revealed that the orthopedist recorded range-of-motion limitation in Sirma’s lumbar spine.  These findings created a question of fact that precluded summary judgment not only for the taxi defendants, but also defeated the auto defendants who had made out their prima facie case as to Sirma.

 

2/17/09            Staff v. Yshua

Appellate Division, Second Department

Remember, Specifics and Comparisons!

Defendants win a reversal based on the affirmation of their orthopedist that used a visual scale and goniometer to test the range-of-motion in plaintiff’s left shoulder, right elbow, left hip and left knee.  The specific measurements were compared to the norms and determined to be normal.  He additionally described other orthopedic tests he performed and reported that all the results were normal.  He then concluded that plaintiff’s injuries were resolved, that there was no permanency, and that plaintiff could work and perform all his usual activities without restrictions.  In opposition, plaintiff failed to raise an issue of fact.

 

2/11/09            Schultz v. Penske Truck Leasing Co., L.P.

Appellate Division, Fourth Department

Defendants In the First Accident Are Denied Severance From Defendant in the Second Accident

Plaintiff was involved in two accidents, one in January 2004 involving defendant Penske, and the second in March 2004 involving defendant Wright, both while a passenger.  Penske sought partial summary judgment dismissing the claims with respect to the January accident or, alternatively, seeking to sever from the causes of action with respect to the March accident.  On appeal, the decision of the trial court is affirmed and Penske’s motion is denied.  Although Penske submitted an affidavit and report from its examining physician that stated that plaintiff’s surgery and scar were not causally related to the January accident but rather to her degenerative disc disease, the plaintiff submitted objective evidence both of a C5-6 disc herniation and with respect to the resulting scar that was sufficient to raise a triable issue of fact.  The court also determined that the trial court did not abuse its discretion in denying severance.

 

2/10/09            Valentin v. Pomilla

Appellate Division, First Department

Failure to Refute Evidence of Preexisting Degenerative Condition and Congenital Defect Results In Plaintiff’s Failure to Establish Causation

Here the trial court’s decision is reversed, on the law, and the complaint is dismissed.  Plaintiff did not refute defendants’ evidence that his MRI revealed preexisiting degenerative disc disease but no evidence of post-traumatic injury..  Plaintiff also did not refute his own experts who reported preexisting degenerative changes in his knee when they examined him shortly after the accident.  Although plaintiff asserted that the disc herniations shown in the MRI and the arthroscopic surgery that he underwent for the knee were sufficient to raise an issue of fact, he failed to address the congenital and degenerative conditions raised by defendants.  The court found that the “most significant flaw in plaintiff’s arguments is his failure to address causation.”  Therefore, plaintiff’s doctors’ reports, which did not mention, let alone explain why the accident, and not the congenital or degenerative conditions, were the cause of plaintiff’s pain and injuries, were rendered merely speculative.  The failure to offer objective medical evidence to establish causation also defeated the plaintiff’s claim under the 90/180-day category.

 

2/10/09            Spikoski v. HUB Truck Rental

Appellate Division, Second Department

Summary Judgment on Counterclaims Is Awarded Where Plaintiff Did Not Sustain a Serious Injury

The court searched the record and dismissed the complaint all around after determining that plaintiff “S.B.” did not sustain a serious injury and dismissing his counterclaim for indemnification or contribution asserted against the named plaintiff.

 

2/10/09            Machat v. Mazzarino

Appellate Division, Second Department

Surgery Three Months After Accident Raises Triable Issue of Fact

Plaintiff sustained an injury to her right knee and submitted, in opposition to defendants’ motion for summary judgment, the affirmation of her orthopedist who performed surgery to her right knee three months after the accident, as well as an affirmation of her radiologist who performed an MRI three weeks after the accident and which revealed tears in the knee’s menisci and cruciate ligaments.  These were sufficient to raise a triable issue of fact and defendant’s motion was properly denied.

 

2/10/09            Friscia v. Mak Auto, Inc.

Appellate Division, Second Department

Failure to Submit Competent Evidence Dooms the Claim

Here defendant appealed and won a reversal where, as so often is seen, plaintiff’s physician fails to quantify his findings to support his assertions and plaintiff submits her own self-serving deposition testimony as to the existence of serious injury, but no competent medical evidence.  In addition, and just to ensure total failure, plaintiff did not even submit competent evidence that she sustained a vertebral fracture in the accident.

 

2/10/09            Delorbe v. Perez

Appellate Division, Second Department

Termination of No-Fault Benefits Can Adequately Explain Gap in Treatment

One wonders why plaintiff failed at the trial level forcing this appeal and logical reversal.  In opposition to defendants’ motion, plaintiff submitted contemporaneous and recent range of motion testing showing significant lumbar spine limitations, as well as an MRI establishing multiple herniations.  Plaintiff’s treating neurologist not only concluded that plaintiff sustained permanent consequential and significant limitation of function of the lumbosacral spine, but also stated that the limitations were permanent and causally related to the accident.

 

Plaintiff also explained that because of the termination in his no-fault benefits, he could no longer afford to continue treating.  His treating physician additionally affirmed that plaintiff had, at that time, reached his maximum improvement so any further treatment would have been palliative.  This sufficiently explained the gap in his treatment history.

 

2/10/09            Dantini v. Cuffie

Appellate Division, Second Department

Unexplained Gap in Treatment and Mere Subjective Complaints of Pain Cause Claim to Succumb to Summary Judgment

Here, plaintiff appealed and lost again where she failed to explain an almost three-year gap in treatment and also to substantiate, with any objective medical evidence, her subjective complaints of pain or her claim under the 90/180-day category.

 

2/6/09              Virella v. Allstate Home Care of Buffalo, Inc.

Appellate Division, Fourth Department

Stipulation Discontinuing Action on the Merits Is Not a Release That Extinguishes a Cross Claim

Here plaintiff was involved in two accidents within a four-month time period.  Plaintiff discontinued his action against accident No. 1 driver by a stipulation, on the merits and with prejudice, which post-dated the original motion.  Accident No. 1 driver then sought summary judgment dismissing the cross claim brought against him by the accident No. 2 parties.  While finding that the stipulation was not a release within the meaning of General Obligations Law § 15-108[d][1], and therefore it did not extinguish the cross claim, the court nevertheless granted accident No. 1 driver’s motion because the accident No. 2 parties limited their submissions of medical evidence to the second accident and did not address the first accident.  They therefore failed to defeat the showing of no serious injury as a result of the first accident.

 

AUDREY’S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

 

Arbitration

2/9/09              In the Matter of the Arbitration Between South Buffalo Chiro. and GEICO Ins. Co., Arbitrator Thomas J. McCorry (Erie County)

Insurer’s Take Note: In Close Call Cases Arbitrator will Consider Where Your Expert is Located

The Applicant, medical provider, sought payment of chiropractic services allegedly arising out of a September 8, 2006, motor vehicle accident.  The insurer denied the chiropractic treatment based upon an independent chiropractic examination conducted by a chiropractor from Long Island. 

 

The Applicant called into question to insurer’s motivation for the examination in light of the chiropractor being brought to Buffalo from Long Island just for the examination.  The arbitrator noted that while the report from the chiropractor was not “out of skew” with other reports he has reviewed it did make the arbitrator question why the insurer chose a Long Island chiropractor when there is an ample selection of them in the Buffalo area.

 

Upon review of the evidence an award was rendered in favor of the Applicant.

 

Litigation

2/17/09            East Acupuncture, P.C. v. Allstate Ins. Co.

Appellate Division, Second Dept

Tolling of Accrual of Statutory Interest Applies to Policyholders and Medical Providers

The essence of the argument in this case is whether the tolling of accrual of interest pursuant to 11 NYCRR §65-39(c) applied only to policyholders or to both policyholders and medical providers.  The Appellate Division held that the no-fault regulation applied to both.

 

The plaintiff’s, medical provider, argument in favor of tolling for policyholders only was that a medical provider is not an “applicant” under 11 NYCRR §65-3.9(c).  In reviewing the regulation, 11 NYCRR §65-3.9(a) provides that overdue mandatory and additional personal injury protection benefits due an applicant or assignee shall bear interest at a rate of two percent per month.  11 NYCRR §65-3.9(c) provides that if an applicant does not request arbitration or commence a lawsuit in 30 days after receiving a denial of claim then interest will not accrue on the claim until the action is taken. 

 

The Court initially reasoned that in statutory and regulatory interpretation, legislative intent is the controlling principle.  The Court begins with the statutory text’s plain meaning and the concept that if a particular act, thing or person is omitted then it was intended to be omitted.  Despite this, the statute or regulation must also be construed as a whole and have the various part considered together and with reference to each other.

 

Here, in promulgating the no-fault regulations the Superintendent of Insurance has the broad power to interpret, clarify and implement those regulations.  The Superintendent’s interpretation to a regulation is provided with deference as long as that interpretation is not irrational or unreasonable.

 

The Superintendent of Insurance submitted an amicus curiae brief supporting the insurer’s interpretation that the tolling provision of the no-fault insurance regulations applies to both policyholders and medical providers.

 

The Court held that the Superintendent’s interpretation of the term applicant as used in 11 NYCRR §65-3.9(c), since the term was undefined, was rational and reasonable.  The interpretation provided was that the regulation is referring the medical providers and policyholders when reviewing prior case law and the Superintendent’s prior expression of intent.

 

The Court also reasoned that to adopt the medical provider’s interpret of the regulation would be contrary to the legislative goal of prompt payment in of claims.  The no-fault regulations aim to have prompt payment of claims.  The statutory punitive damage to the insurer that fails to do so is the accrual of interest.  To interpret the regulations in the manner the medical provider advocated would encourage medical providers to delay in taking action in order to obtain a “windfall of punitive interest payments.”

 

2/13/09            Continental Med., P.C. a/a/o Harostegui Sanchez v. Mercury Cas. Co.

Appellate Term, Second Dept

Failure to Object to Defect in Report Results in Waiver of Argument

The trial court improperly denied the defendant’s motion for summary judgment as the plaintiff failed to object to a defect in a chiropractor’s report.  The trial court denied the motion because the chiropractor’s report was not in admissible form, namely it was affirmed only which a chiropractor cannot do pursuant to CPLR 2106.  Interestingly, the plaintiff never raised this argument and the appellate term held that the plaintiff waived the defect by failing to object.

 

2/13/09            Infinity Health Products, Ltd. a/a/o Polard Gillian v. Country-Wide Ins. Co.

Appellate Term, Second Dept

Plaintiff Fails to Establish Prima Facie Case – Insufficient Affidavit Submitted

Plaintiff failed to establish its prima facie case as the affidavit submitted from plaintiff’s billing manager and corporate officer.  The affidavit did not establish that billing manager and corporate officer had personal knowledge of the plaintiff’s practices and procedures to lay the foundation to admit documents as business records.

 

2/13/09            Richard Morgan Do, P.C. a/a/o Howard Dunston v. State Farm Mut. Auto. Ins. Co.

Appellate Term, Second Dept

Insurer Establishes Defense of Failure to Appear for IME

The insurer’s cross-motion for summary judgment was properly granted as the affidavit submitted from the independent medical examination company’s employee sufficiently established that the notice for an independent examination and follow-up request for appearance at an examination were mailed to the plaintiff’s assignor.

 

2/11/09            Top Choice Med., P.C. a/a/o Carmen Rosado v. New York Cent. Mut. Fire Ins. Co.

Appellate Term, Second Dept

Insurer’s Affidavit Fails to Establish Issuance of Timely Denial

The insurer’s summary judgment motion was improperly granted as the affidavit submitted by the insurer’s litigation examiner did not establish timely mailing of a denial.  Specifically, the affidavit only indicated that the denial was mailed but did not set forth the steps which comprise the insurer’s mailing practices and procedures.

 

2/10/09            Great Wall Acupuncture, P.C. a/a/o Ronald Dhanpat v. New York Cent. Mut. Fire Ins. Co.

Appellate Term, Second Dept

Insurer Established Defense of Failure to Appear for IME

The plaintiff’s cross-motion for summary judgment was properly granted as the insurer failed to comply with the no-fault regulations on conducting an examination under oath (EUO).  The insurer did not request with 30 days of receipt of the plaintiff’s bill that the plaintiff’s owner undergo an EUO.  Therefore, the insurer was precluded from raising its defense of plaintiff’s failure to appear for an EUO.

 

2/6/09  A.B. Med. Services, PLLC et. al. a/a/o Roberto Cesar v. Merchants Mut. Ins. Co.

Appellate Term, Second Dept

So Close - Insurer’s Sole Preserved Defense Defeated for Lack of Sufficient Evidence

The plaintiff’s motion for summary judgment was improperly denied as the insurer failed to submit an affidavit sufficiently establishing that it timely mailed a denial of claim.  The insurer was precluded from raising its defense of billing in excess of the workers’ compensation fee schedule but was not precluded from asserting a fundamental coverage issue of injuries not arising out of a covered accident.  Even though the insurer had one defense, it failed to demonstrate that its defense was based upon a fact or founded belief that the injuries did not arise out of an insured incident.

 

Insurance Department Opinion

2/19/09            Circular Letter No. 3: Unfair Claim Settlement Practices – No-Fault Notice of Claim Provisions

Insurers are reminded that the no-fault regulations do not provide a timeframe in which a claimant must return an NF-2 form.  The regulations require the claimant to provide timely written proof of claim within 30 days of the accident.  If the claimant provided timely written notice of the accident then the insurer cannot issue a denial for the claimant’s failure to provide an NF-2 within 30 days of the accident.

 

Of course this raises the question – Well what is timely written notice??

 

The Insurance Department Opinion indicates that there are many forms of written notice other than the NF-2.  A claimant can submit an NF-5 (Hospital Facility Form), an MV-104 report, or other accident report that enumerates the injuries.

 

Overall this opinion reiterates that the insurer, if it was provided with another accepted form of written notice by the claimant, cannot deny the claim for the claimant’s failure to submit an NF-2 within 30 days from the accident date.  I do not read this opinion to mean that the insurer cannot ask the claimant to complete an NF-2.  However, if the insurer fails to receive it back from the claimant within 30 days from the accident it cannot deny the claim.  Again, this is the case if the claimant provided an alternative accepted method of written notice of the claim.

 

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper

[email protected]

 

Of Property

 

02/06/09          Vivian Stern d/b/a The Jeweler v. The Charter Oak Fire Ins. Co.

Appellate Division, Fourth Department

Court Reinstates a Claim for Consequential Damages Post Bi-Economy

Relying on the Court of Appeals’ companion decisions in Bi-Economy and Panasia Estates,  rendered in February of 2008, plaintiff/insured sought to renew its opposition to Charter Oak’s motion to dismiss all claims of consequential loss.  Charter Oak had relied upon a provision in the policy which excluded all coverage for consequential damages.  However, relying upon the direction provided by the Court of Appeals, the Fourth Department ruled that limitations on consequential losses are not applicable where the policy was breached on other grounds.  As such, plaintiff/insured’s motion to renew was permitted on the basis of new law.  In reaching this conclusion, the Fourth Department also noted that the doctrine of law of the case was inapplicable where there had been an intervening change in the law after the initial decision. 

 

02/06/09          Trupo v. Preferred Mut. Ins. Co.

Appellate Division, Fourth Department

Home Owner’s Exclusion for Contamination Held Ambiguous

Plaintiff sought coverage for damages sustained at their residence after an explosion at a nearby chemical plant released 75 gallons of chemicals into the atmosphere.  Although the policy in question provided coverage for direct physical loss resulting from, among other things, an explosion, Preferred denied on the basis of an exclusion in the policy.  The exclusion, which was labeled “wear and tear,” removed coverage for damages arising from “contamination.”  The Fourth Department affirmed the trial court’s decision which granted plaintiff/insured’s motion for summary judgment.  In so holding, the Court reasoned that an average policy holder would interpret the  exclusion only to apply to contamination that occurred over a period of time.  At worst, then, the Court noted that the exclusion was ambiguous, and should be construed for the benefit of the insured. 

 

A well-reasoned decent was penned by Justice Scudder and Justice Pine which concluded that the exclusion should have been afforded its plain meaning.  As such, because the policy plainly excluded claims for  contamination there should have been no coverage in this instance.  The dissent also noted that reliance upon the exclusion’s title was only necessary where there was ambiguity in the body of the provision.  Here, the dissent noted, there was none.   

 

02/06/09          Rafi v. Rutgers Casualty Ins. Co.

Appellate Division, Fourth Department

Intent is NOT an Element in Proving a Material Misrepresentation

At the close of proof, the trial court instructed jurors that Rutgers’ could only prevail upon its material misrepresentation defense if it established that plaintiff/insured’s alleged misrepresentation was intentional.  Of course, long standing precedent establishes that a carrier need not establish the element of intent to prove a material misrepresentation.  As such, the Fourth Department held that the trial court’s instruction constituted reversible error, and remanded the matter for a new trial.

 

and Potpourri

 

02/06/09          Tabone v. Keun Y. Lee, M.D.

Appellate Division, Fourth Department

Time-restricted Authorizations Were Appropriate where Plaintiff’s Claim was Sufficiently Narrow

Plaintiff initially provided time-restricted authorizations which permitted defendants access to medical records for various periods ranging from twenty-one months to six years.  Defendants sought unlimited authorizations, and moved to compel the production of the same.  The trial court granted the motion to compel, and the Fourth Department reversed.  In so holding, the Appellate Division stated that plaintiff’s claims were not so broad so as to put his entire medical history in evidence.  As such, the court concluded that the time-restricted authorizations were appropriate, and all disputed medical records should be provided for in camera review to determine their respective relevance. 

 

EARL’S PEARLS

Earl K. Cantwell, II
[email protected]

 

NEVER USE THE MONKEY BARS

AFTER EATING PIZZA FOR LUNCH

 

A recent Second Department decision in Mata v. Huntington Union Free School District, 871 NYS 2d 194 (2nd Dept 2008) highlights the legal and practical dangers if one attempts to navigate monkey bars after having tasty but greasy pizza for lunch.  The case also raises and discusses greasy legal issues with respect to reviewing a jury verdict, which in this case left the plaintiff not only post-pizza but also no dough.

 

The infant plaintiff in Mata was injured when she fell from the third rung of a set of monkey bars during after-lunch recess.  At the time of the accident there were two playground aides on site supervising two classes of kindergartners.  The infant plaintiff testified that she climbed on and then slipped off the monkey bars sustaining injuries.  She testified that her hands were slippery because she had eaten pizza for lunch (it is not clear what kind or with what toppings) and had not washed and dried her hands before going out to the playground. 

 

The jury returned a verdict finding that, although the defendant School District had been negligent, its negligence was not a substantial factor in causing the accident.  The legal action then mushroomed into an appeal to the Second Department.  On appeal the plaintiff argued that the verdict was against the weight of the evidence and was inherently inconsistent.  The tumbling pizza queen made a motion pursuant to CPLR 4404(a) to set aside the verdict as against the weight of the evidence and as inconsistent and for a new trial.  The trial court denied the motion and the decision was affirmed on appeal.  There is no indication in the opinion whether of the appellate judges liked pizza or monkey bars, and if so to what extent.  The Second Department affirmed holding that the issue of the school district’s alleged negligence was one layer of cheese, but that the issue of proximate cause was an additional topping which the jury could decline and still make a very tasty pie.

 

As an antipasto appetizer to its pizza decision, the Second Department reiterated the old pizza recipe that, where a verdict can be reconciled to a reasonable view of the evidence, a successful party is entitled to a presumption that the jury adopted or could have adopted that view.  The Appellate Court ruled that a jury finding (presumably after a pizza lunch or two at court expense) that a party was at fault, but that the fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also necessarily finding proximate cause.  Phrased differently, or choosing white pizza instead of red sauce pizza, where there is a reasonable view of the evidence under which it is not logically impossible to reconcile a finding of negligence but no proximate cause, it may be presumed that in returning the verdict the jury adopted or could have adopted that line of reasoning.

 

The Second Department ruled that the jury’s pizza decision in this case was not half baked.  Although the defendant School District could have been found negligent, for example, in having only two playground aides supervising two large kindergarten classes at recess, the accident which involved the infant plaintiff gaining access to the monkey bars with pizza grease on her hands and quickly falling after traversing only one or two rungs happened so quickly that greater supervision would not have prevented it.  I suppose that this may be a lesson to those who overeat pizza and lapse into a food coma to make sure that, if they are injured, it be a long, slow, lingering injury.  The Court concluded that this view of the evidence would have been neither unreasonable nor logically impossible, that the jury could have rationally adopted it, and upheld the verdict that the defendant School District was negligent, but that any negligence was not a substantial factor in causing the accident.  The jury having ordered their pizza could eat it any way they wanted so long as they were consistent with pizza and did not munch into other, inconsistent meals such as subs or tacos.

 

The Second Department decision was a 3-1 decision, and the dissent would have granted the motion for a new trial for the pizza guzzling plaintiff.  The dissent argued that the jury verdict and trial court decision was a half-baked pie that had to be sent back to the oven.  The dissent noted that kindergarteners were not permitted by the school to play on the monkey bars at all, and that on the day of the accident two full classes of some 50 children were being supervised only by two aides, one of whom was a substitute.  I believe the language with respect to substitution related to the school aides and not whether sausage could be substituted for pepperoni, anchovies for peppers, or mushrooms for double cheese. 

 

The dissent accepted the jury finding that the School District was negligent in not providing adequate supervision to the horde of pizza-stuffed children going to recess. The dissent argued that it is logically impossible to find that inadequate supervision of a 5 year old child left alone in close proximity to the playground equipment was not a proximate cause of the child’s injury and that the jury verdict should be set aside.  In short, the dissent believed that, having found negligence, the cause and likelihood of injury was as inherent and inevitable as pizza stains on your shirt.

           

There are several lessons to be learned from this modern cautionary legal tale of pizza and angst.  First, if you intend to play on the monkey bars or other high level playground equipment, it may be best to go light on the pizza at lunch which could only weigh you down.  I can’t imagine what the claim would have been if the pizza-stuffed child had gotten on the playground spinning wheel to play.  Second, if you have pizza at lunch, you should do as I do and lick all of the delicious grease and spices from your fingers which both satisfies your stomach and enhances your tensile grasping ability.  Third, do not ignore the issue of proximate cause in evaluating and trying a case since you may lose or even have to concede on the issue of negligence but argue that the negligence was not an a proximate cause of the accident or that there were other intervening supervening factors.  Another lesson is that 5-year olds, pizza and playground equipment may make for a bad lunch and even worse recess.  It is not reported in the decision whether any of the parties impleaded the pizza manufacturer as an additional party to the litigation because of its role in producing the food product which so obviously was the real cause of the accident.

 

DUQUIN – THE DUKE OF LEAD

Scott M. Duquin
[email protected] 

 

LEAD: The Lingering Litigation

 

Part V – Value

 

While I had intended for this week’s article to examine insurance coverage and regulatory issues in the context of New York State lead paint litigation, I wanted to expand upon the last installment with respect to the value of lead-based paint cases.  So instead, this week I will review four reported verdicts or settlements from 2008.  As you will see, the verdict numbers are shocking.  However, our office as of late has been able to negotiate several “reasonable” settlements, which unfortunately we are unable to share for confidentiality reasons.

 

In a February 2008 case, the parties reached a settlement agreement of $900,000 after the trial got underway in Kings County.  Since it was a New York City case, New York City Local Law 1 applied (you may recall the earlier article in which we discussed the quasi-strict liability imposed under the local ordinance).  The plaintiff claimed a peak blood lead level of 21 ug/dl, which is a Class 3 lead poisoning.  The plaintiff’s mother alleged that the plaintiff suffered from a behavioral disorder (no specific disorder reported), brain damage, and a learning disability (not specified) as a result of the poisoning.

 

In March 2008, a Bronx County verdict came in at $21,000,000.  The three plaintiffs’ peak blood lead levels were 28 ug/dl, 38 ug/dl and 26 ug/dl.  The plaintiffs underwent chelation therapy, but were able to show that their lead exposure was chronic and long term.  X-rays of long bones revealed the presence of lead lines.  In cases of chronic exposure, x-rays of the long bones (usually leg bones) can show darkled areas, which are areas of retarded bone growth that can occur when a high level of lead is present for an extended period of time.  All three plaintiffs claimed behavioral disorders (no specific disorder reported), brain damage, and learning disabilities (not specified).  The total awards for each plaintiff were $6,000,000; $5,000,000; and $10,000,000.  However, no defense expert was reported.  Thus, there is an important lesson to be learned from this astronomical verdict: a defense expert is essential to putting on a viable defense at trial.

 

In another Bronx county verdict in June 2008, the plaintiff was awarded $8,500,000 ($500,000 for past pain and suffering, and $8,000,000 for future pain and suffering).  The injuries claimed were the same as above but plaintiff was receiving special education services and reported a peak blood lead level of 40 ug/dl.

 

And to just prove the point that there is seemingly no rhyme or reason to jury verdicts, in an October 2008 Bronx County verdict, the plaintiff was awarded $2,435,000 ($575,000 for past pain and suffering, $260,000 future pain and suffering, and $1,600,000 in future loss earning).  Unlike each of the plaintiffs in the above cases who sought future loss earnings, this plaintiff was successful.  Ironically, this plaintiff had the highest peak blood lead level—46 ug/dl—out of the cases reviewed.

 

So when it comes to lead-based paint cases, verdict and settlement values can vary widely, and are not driven by the quantum of the blood lead level alone.  We again remind you of our recommendation: in these types of cases, defense experts are vital.  In the end, the extra costs of a higher profile expert may very well be justified.

 

Next issue will be the last article in our mini-series, and we will finally get to the insurance coverage/regulation piece.

 

 

ACROSS BORDERS

 

2/13/09            Pine Oak Builders, Inc. v. Great American Lloyds Ins. Co.

Texas Supreme Court

Extrinsic Evidence to the "Eight Corners" of the Policy and the Complaint May Not Be Used To Establish an Insurer's Duty to Defend
Homeowners filed five lawsuits against Pine Oak, a homebuilder, alleging various construction defects. In four of the lawsuits, the homeowners expressly alleged defective work by Pine Oak's subcontractors. No such allegations, however, were included in the fifth lawsuit. Insurers who issued commercial general liability (CGL) policies to Pine Oak denied its request for a defense in the homeowners' lawsuits, and Pine Oak filed suit seeking coverage. The Texas Supreme Court determined that certain construction defect coverage issues raised in the cross-appeals were governed by the court’s prior opinions in Lamar Homes and Don’s Building Supply, and instructed the trial court to apply these rules on remand. The court then considered whether extrinsic evidence to the eight corners of the policy and the underlying lawsuit could be used to establish the insurer's duty to defend Pine Oak in the fifth lawsuit.

 

The CGL policy contained a "your work" exclusion removing coverage for property damage to the insured's completed work. The exclusion contained an exception "if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor." Pine Oak submitted evidence that the defective work alleged in the fifth lawsuit was performed by subcontractors and thus the insurer had a duty to defend Pine Oak against that suit.

 

The Supreme Court held that evidence extrinsic to the allegations contained in the underlying petition may not be used to establish an insurer's duty to defend when such evidence contradicts the facts pleaded in the petition. The court explained that because the homeowner alleged that Pine Oak alone performed faulty work, thereby triggering the "your work" exclusion on its face, it was improper to admit extrinsic evidence that the defective work was performed by subcontractors. In reaching its conclusion, the court observed that the CGL policy at issue did not impose "a duty to defend a claim that might have been alleged, but was not, or a claim that more closely tracks the true factual circumstances surrounding the third-party claimant's injuries but which, for whatever reason, has not been asserted. To hold otherwise would impose a duty on the insurer that is not found in the language of the policy." Such a construction, the court concluded, "would also 'conflate the insurer's defense and indemnity duties' since the duty to defend turns on the 'factual allegations that potentially support a covered claim,' while 'the facts actually established in the underlying suit control the duty to indemnify.'"

Submitted by: Bruce D. Celebrezze and Andrew J. King (Sedgwick, Detert, Moran & Arnold LLP)

2/13/09            Estate of Carrano v. Yale-New Haven Hospital

Connecticut Appellate Court
Plaintiff Should Not Recover Post-Judgment Interest Where Defendant’s Appeal was Bona Fide and in Good Faith
Plaintiff seeks post-judgment interest on judgment rendered in her favor. Plaintiff conceded the court was not required to award post-judgment interest and that recovery of such interest was discretionary under the statutory provisions in effect at the time of the decedent’s death in 1992, but the plaintiff argued that the court abused its discretion because there was no factual basis from which the court could have found that (1) money was not payable to the plaintiff and (2) the detention of the money by the defendants was rightfully withheld under the circumstances. Court observed that a decision to deny or grant post-judgment interest is primarily an equitable determination and a matter lying within the discretion of the trial court. Therefore, denial of interest was appropriate where arguments were not frivolous on the issue of whether defendant wrongfully withheld the money.

Submitted by: Michael T. Glascott; Lustig & Brown, LLP

 

REPORTED DECISIONS

 

Cataract Sports & Entertainment Group, LLC v. Essex Ins. Co.


Appeal from a judgment (denominated order) of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered September 14, 2007 in a declaratory judgment action. The judgment, insofar as appealed from, dismissed the complaint, granted the motion of defendant Essex Insurance Company for summary judgment declaring that it is not obligated to defend or indemnify plaintiffs in the underlying personal injury action, and denied the cross motion of defendants Frank Strangio and Merrie Carole Strangio for summary judgment.

It is hereby ORDERED that the judgment insofar as appealed from is unanimously reversed on the law without costs, the complaint is reinstated, the motion is denied, the declaration is vacated, the cross motion is granted, and judgment is granted as follows:

It is ADJUDGED and DECLARED that defendant Essex Insurance Company is obligated to defend and indemnify plaintiffs in the underlying personal injury action.

Memorandum: Plaintiffs commenced this action seeking, inter alia, judgment declaring that defendant Essex Insurance Company (Essex) has a duty to defend and indemnify them in the underlying personal injury action brought by defendants Frank Strangio and his wife, Merrie Carole Strangio. In the underlying action, the Strangios seek damages for injuries sustained by Frank Strangio during a flag football game when he allegedly stepped into a rut in the artificial turf on premises owned and operated by plaintiffs. Supreme Court erred in granting the motion of Essex seeking summary judgment declaring that it is not obligated to defend or indemnify plaintiffs in the underlying action and in denying the Strangios' cross motion seeking a declaration to the contrary. We note at the outset that the Strangios ordinarily would lack standing to seek such relief against Essex based on their failure to satisfy the requirements of Insurance Law § 3420 by obtaining a judgment against Essex, the tortfeasors' insured, [*2]in the underlying action (see 3405 Putnam Realty Corp. v Insurance Corp. of N.Y., 36 AD3d 565, lv denied 8 NY3d 813). Here, however, plaintiffs named them as party defendants, thereby allowing them to contest the issue of coverage in this action (see id.).

On the merits, we conclude that the commercial general liability policy issued by Essex to plaintiffs provides coverage for the accident. "Where an insurance policy is clear and unambiguous, it must be enforced as written" (Woods v General Acc. Ins., 292 AD2d 802, 802). The policy in effect at the time of the accident, as modified by Endorsement M/E 217 (4/99), unambiguously provides liability coverage for bodily injury arising out of the "ownership, maintenance or use of the premises" or arising out of the "project shown in the Schedule," i.e., the golf driving range. Because the policy identifies the insured premises in the disjunctive, each must be separately considered and either would support coverage (see generally Propis v Fireman's Fund Ins. Co., 112 AD2d 734, 737-738, affd 66 NY2d 828; Coutu v Exchange Ins. Co., 174 AD2d 241, 243). Because the injury in the underlying action allegedly arose out of the "ownership, maintenance or use of the premises," the Strangios are entitled to judgment declaring that Essex is obligated to defend and indemnify plaintiffs in the underlying action.

Virella v. Allstate Home Care of Buffalo, Inc.


Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered September 13, 2007 in a personal injury action. The order denied the motion of defendants Allstate Home Care of Buffalo, Inc. and Alfonso Reid for summary judgment dismissing the complaint against them.


SUGARMAN LAW FIRM, LLP, BUFFALO (KELLY J. PHILIPS OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
CELLINO & BARNES, P.C., BUFFALO (GREGORY V. PAJAK OF COUNSEL), FOR PLAINTIFF-RESPONDENT.  


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

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained in two motor vehicle accidents. The first accident occurred in January 2003 (January accident), when the vehicle operated by plaintiff collided with a vehicle owned and operated by defendant Neal E. Dunning. The second accident occurred in April 2003 (April accident), when the vehicle operated by plaintiff collided with a vehicle owned by defendant Allstate Home Care of Buffalo, Inc. and operated by defendant Alfonso Reid (collectively, Allstate defendants). According to plaintiff, he sustained a serious injury within the meaning of Insurance Law § 5102 (d) in each of those accidents under the permanent consequential limitation of use, significant limitation of use and 90/180 categories, as well as a serious injury in the January accident under the permanent loss of use category.

We conclude with respect to the order in appeal No. 1 that Supreme Court properly denied the motion of the Allstate defendants seeking summary judgment dismissing the complaint against them on the ground that plaintiff did not sustain a serious injury in the April accident. Even assuming, arguendo, that the Allstate defendants met their initial burden on the motion, we conclude that plaintiff raised triable issues of fact whether he sustained a serious injury in the April accident under the permanent consequential limitation of use, significant limitation of use and 90/180 categories (see generally Zeigler v Ramadhan, 5 AD3d 1080, 1081; Parkhill v Cleary, 305 AD2d 1088, 1089-1090). In opposition to the motion, plaintiff submitted the affirmation of his treating orthopedic surgeon who concluded upon reviewing the results of an MRI and other diagnostic tests and upon conducting his own objective tests that plaintiff had, inter alia, quantified limited lumbar range of motion and severe aggravation of herniated discs at levels L4-5 and L5-S1 that were causally related to the April accident (see Parkhill, 305 AD2d at 1089). Plaintiff also submitted the affidavit of a chiropractor who, after administering several objective tests that yielded positive results, concluded that plaintiff suffered from, inter alia, bilateral L5 radiculopathy and limited range of lumbar motion as a result of the April accident (see id.). Plaintiff further averred in opposition to the motion that he was physically unable to work or to perform his usual daily activities for at least three months after the April accident (see Zeigler, 5 AD3d at 1081; Parkhill, 305 AD2d at 1089-1090).

With respect to the order in appeal No. 2, the Allstate defendants contend that the court erred in granting that part of the motion of Dunning seeking summary judgment dismissing the complaint against him on the ground that plaintiff did not sustain a serious injury in the January accident. As noted by Dunning in his amended motion papers, plaintiff discontinued his action against Dunning "on the merits [and] with prejudice" by a stipulation that postdated the original motion in question, thereby rendering moot that part of the motion. We therefore modify the order in appeal No. 2 accordingly.

We further conclude, however, that the court properly granted that part of Dunning's motion seeking summary judgment dismissing the cross claim of the Allstate defendants. The stipulation discontinuing plaintiff's action against Dunning was not a release within the meaning of the General Obligations Law and thus did not extinguish the cross claim of the Allstate defendants (see General Obligations Law § 15-108 [d] [1]; see generally CPLR 3019 [b], [d]; Siegel, NY Prac § 227, at 375 [4th ed]). We conclude that Dunning met his initial burden on that part of the motion with respect to the cross claim by submitting evidence establishing that plaintiff did not sustain a serious injury in the January accident under any of the categories alleged in the complaint, as amplified by the bill of particulars (see generally Wiegand v Schunck, 294 AD2d 839, 839-840). The medical evidence submitted by the Allstate defendants in opposition to Dunning's motion was limited to the issue whether plaintiff sustained a serious injury in the April accident, and we thus conclude that the Allstate defendants failed to raise a triable issue of fact sufficient to defeat that part of Dunning's motion with respect to the cross
claim (see generally Zuckerman v City of New York, 49 NY2d 557, 562).

David Christa Construction, Inc. v. American Home Assurance Company


Appeals from an order of the Supreme Court, Wayne County (Stephen R. Sirkin, A.J.), entered October 31, 2007 in a declaratory judgment action. The order denied the motions of plaintiffs insofar as they sought summary judgment.


 It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, those parts of the motions seeking summary judgment are granted, and judgment is granted in favor of plaintiffs as follows:


It is ADJUDGED and DECLARED that defendant American Home Assurance Company is obligated to provide primary coverage for the defense and indemnification of plaintiff David Christa Construction, Inc. in the underlying action and that plaintiff Howard Mills, as Superintendent of Insurance of State of New York and ancillary receiver of Reliance Insurance Company, is obligated to provide excess coverage to plaintiff David Christa Construction, Inc. in the underlying action.

Memorandum: Daniel Roosa, an employee of Spring Lake Excavating, Inc. (Spring Lake), was injured while working on a construction project at Cornell University (project). Plaintiff David Christa Construction, Inc. (Christa) was the general contractor on the project and held a commercial general liability insurance policy from United Pacific Insurance Company, a subsidiary of Reliance Insurance Company (collectively, United). In its subcontract with Christa, Spring Lake agreed to procure liability insurance naming Christa as an additional insured. Spring Lake obtained a comprehensive liability insurance policy from American Home Assurance Company (defendant) that included as an "[a]dditional [a]ssured[]" (hereafter, additional insured) any organization to which Spring Lake "agreed, by written contract, to provide coverage, but only with respect to operations performed by or on behalf of" Spring Lake. Roosa and his wife commenced a Labor Law and common-law negligence action against, inter alia, Christa, and Christa subsequently commenced a third-party action against Spring Lake.

Before us on this appeal are consolidated actions. The first is an action commenced by Christa seeking, inter alia, a declaration that it is covered under defendant's policy and that defendant is obligated to defend and indemnify Christa in the underlying action. The second is an action commenced by plaintiff Superintendent of Insurance of State of New York and ancillary receiver of Reliance Insurance Company (plaintiff Superintendent), seeking, inter alia, a declaration that defendant's obligation to defend and indemnify Christa in the underlying action is primary with respect to any obligations of plaintiff Superintendent and any funds available under the receivership. In a prior appeal, we concluded that "Supreme Court properly denied defendant's motion insofar as it sought a declaration concerning the priority of coverage among the applicable insurance policies," i.e., defendant's policy and two other policies, based on defendant's failure to join one of those insurers as a necessary party (David Christa Constr., Inc. v American Home Assur. Co., 41 AD3d 1211, 1211).

In this action, Christa moved, inter alia, for summary judgment declaring that defendant is obligated to provide primary coverage for the defense and indemnification of Christa in the underlying action and that "the obligations on the part of [United] and [plaintiff Superintendent] as Ancillary Receiver are purely excess and secondary in nature." Plaintiff Superintendent also moved, inter alia, for summary judgment declaring that defendant is obligated to provide primary coverage for the defense and indemnification of Christa and that any obligations of plaintiff Superintendent are excess. Plaintiffs appeal from an order denying both motions insofar as they sought summary judgment, based on the court's determination that "there is a question of fact requiring certain discovery before the matter of the priorities of insurance coverage can be finally determined . . . ." While this appeal was pending, the jury rendered a verdict against Christa and in favor of Spring Lake in the trial of Christa's third-party action against Spring Lake in the underlying action, and the court dismissed the third-party complaint.

We conclude that the court erred in denying plaintiffs' respective motions insofar as they sought summary judgment declaring the priority of insurance coverage. We agree with plaintiffs that the policies of United and defendant, when read together, unambiguously provide that the coverage provided by defendant is primary and that the coverage provided by United, and thus plaintiff Superintendent by virtue of the receivership, is excess. The scope of insurance coverage obtained by a general contractor and subcontractor "must be determined by the terms of the policies, not the terms of the subcontract" (United States Fid. & Guar. Co. v CNA Ins. Cos., 208 AD2d 1163, 1165). Here, the additional insured provision of defendant's policy was triggered when Spring Lake agreed in the subcontract agreement to obtain liability insurance and to list Christa as an additional insured. The well-settled definition of the term "additional insured" is "an entity enjoying the same protection as the named insured" (Pecker Iron Works of N.Y. v Traveler's Ins. Co., 99 NY2d 391, 393 [internal quotation marks omitted]). Under defendant's policy, the coverage afforded to Spring Lake was to be excess over any other insurance available to it "other than [i]nsurance that is excess" to defendant's policy. Inasmuch as Christa was an additional insured, defendant likewise was obligated to provide Christa with excess coverage unless other insurance available to Christa provided only excess, rather than primary, coverage. United's policy unambiguously provided that it was to be excess over any other insurance covering Christa and on which it was not the named insured, which would include defendant's policy. Thus, United's policy provided Christa with excess coverage over defendant's policy.

We also agree with plaintiffs that defendant is required to defend and indemnify Christa in the underlying action, regardless of the dismissal of the third-party complaint against Spring Lake. The language of defendant's additional insured provision "focuses not upon the precise cause of the accident, as defendant[] urge[s], but upon the general nature of the operation in the course of which the injury was sustained" (Consolidated Edison Co. of N.Y. v Hartford Ins. Co., 203 AD2d 83, 83). The parties do not dispute that Roosa was employed by Spring Lake and injured while performing construction work for Spring Lake. Consequently, we conclude that Roosa was injured while acting "with respect to operations performed by or on behalf of" Spring Lake and that defendant is obligated to provide coverage to Christa as an additional insured pursuant to its policy. The fact that Roosa's injury may have been caused by Christa's negligence is immaterial with respect to the issue whether Christa is covered under defendant's policy (see Tishman Constr. Corp. of N.Y. v American Mfrs. Mut. Ins. Co., 303 AD2d 323, 324; Turner Constr. Co. v Pace Plumbing Corp., 298 AD2d 146, 147; Consolidated Edison Co. of N.Y. v United States Fid. & Guar. Co., 266 AD2d 9; Lim v Atlas-Gem Erectors Co., 225 AD2d 304, 305-306).

We thus conclude that defendant is obligated to provide primary coverage for the defense and indemnification of Christa in the underlying action and that plaintiff Superintendent is obligated to provide excess coverage pursuant to United's policy. 

Roules v. State Farm Insurance Companies

 

Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of
counsel), for respondent.


DECISION & ORDER

In an action for a judgment declaring that the defendant State Farm Insurance Companies is obligated to defend and indemnify the defendant Jose A. Rodriguez in an underlying action entitled Roules v Rodriguez, pending in the Supreme Court, Queens County, under Index No. 12715/04, the defendant State Farm Insurance Companies appeals from an order of the Supreme Court, Queens County (Taylor, J.), dated August 4, 2008, which denied its motion for summary judgment.

ORDERED that the order is reversed, on the law, with costs, the motion of the defendant State Farm Insurance Companies for summary judgment is granted, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that State Farm Insurance Companies is not obligated to defend or indemnify the defendant Jose A. Rodriguez in the underlying action.

Contrary to the determination of the Supreme Court, the timeliness of the disclaimer issued by the defendant State Farm Insurance Companies (hereinafter State Farm) did not present an issue of fact. State Farm made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that only 13 days elapsed between the date that it first learned of the subject accident and the date that it issued its disclaimer of coverage on the ground of late notice. Moreover, during that 13-day interval, State Farm investigated the matter, reviewed its file, and unsuccessfully attempted to contact its insured. In response to this showing, the plaintiff failed to raise a triable issue of fact. Accordingly, State Farm's disclaimer was timely as a matter of law under the circumstances, and its motion for summary judgment should have been granted (see generally Tully Constr. Co., Inc. v TIG Ins. Co., 43 AD3d 1150; Matter of New York Cent. Mut. Fire Ins. Co. v Gonzalez, 34 AD3d 816; Schoenig v North Sea Ins. Co., 28 AD3d 462; Blue Ridge Ins. Co. v Jiminez, 7 AD3d 652).

Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that State Farm is not obligated to defend and indemnify the defendant Jose A. Rodriguez in an underlying action entitled Roules v Rodriguez, pending in the Supreme Court, Queens County, under Index No. 12715/04 (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, 83, cert denied 371 U.S. 901).

Dantini v. Cuffie


Gruenberg & Kelly, P.C., Ronkonkoma, N.Y., for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York,
N.Y. (Holly E. Peck of counsel), for
respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Weber, J.), dated March 14, 2008, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

Once the defendants made their 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; Gaddy v Eyler, 79 NY2d 345), the burden shifted to the plaintiff to produce sufficient evidence to raise a triable issue of fact (see CPLR 3212). The plaintiff failed to meet this burden. The plaintiff failed to adequately explain the nearly three-year gap in medical treatments (see Pommells v Perez, 4 NY3d 566, 574; Cervino v Gladysz-Steliga, 36 AD3d 744). Moreover, the plaintiff's subjective complaints of pain were insufficient to establish the existence of a serious injury (see Rudas v Petschauer, 10 AD3d 357; Coloquhoun v 5 Towns Ambulette, Inc., 280 AD2d 512; LeBrun v Joyner, 195 AD2d 502), particularly where, as here, there were no objective medical findings to substantiate those complaints (see Carroll v Jennings, 264 AD2d 494). Furthermore, the plaintiff failed to proffer competent medical evidence that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days subsequent to the subject accident (see Sainte-Aime v Ho, 274 AD2d 569; DiNunzio v County of Suffolk, 256 AD2d 498).
MASTRO, J.P., FISHER, FLORIO, CARNI and ENG, JJ., concur.

Delorbe v. Perez


Harmon, Linder, & Rogowsky (Mitchell Dranow, Mineola, N.Y.,
of counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York,
N.Y. (Holly E. Peck of counsel), for
respondents.

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

ORDER 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; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff raised a triable issue of fact. The plaintiff's evidentiary submissions included contemporaneous and recent range of motion testing that revealed the existence of significant limitations in his lumbar spine, and a magnetic resonance imaging showing herniated discs at L3-4, L4-5, and L5-S1. The plaintiff's treating physician and neurologist concluded that the lumbar injuries and observed limitations were permanent and causally related to the subject accident. The plaintiff's treating neurologist also concluded that the plaintiff sustained permanent consequential limitation of use of his lumbosacral spine, as well as a significant limitation of function of his lumbosacral spine. These submissions raised a triable issue of fact as to whether the plaintiff sustained a serious injury to his lumbar spine as a result of the subject accident under the permanent consequential limitation or the significant limitation of use categories of Insurance Law § 5102(d) (see Prescott v Amadoujalloh, 55 AD3d 584; 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 also provided an adequate explanation for the gap in his treatment history. The plaintiff stated in his affidavit that he obtained treatment for about six months after the accident, but stopped when his no-fault benefits were terminated because he could not afford to pay out of pocket (see Black v Robinson, 305 AD2d 438). The plaintiff's treating physician, in his affirmation, stated that the plaintiff's no-fault medical payments ended and, at that point, the plaintiff had reached his maximum medical improvement and any further treatment would have been essentially palliative in nature (see Pommells v Perez, 4 NY3d 566, 574).
SPOLZINO, J.P., SANTUCCI, MILLER, DICKERSON and ENG, JJ., concur.

Friscia v. Mak Auto, Inc.


Votto & Cassata, LLP, Staten Island, N.Y. (Christopher J. Albee
of counsel), for appellant.
Joseph M. Palmiotto, New York, N.Y., for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Mary J. Scarola appeals from an order of the Supreme Court, Richmond County (McMahon, J.), dated October 15, 2007, which denied her motion for summary judgment dismissing the complaint insofar as asserted against her on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Mary J. Scarola for summary judgment dismissing the complaint insofar as asserted against her is granted.

The defendant Mary J. Scarola 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). In opposition, the plaintiff failed to raise a triable issue of fact. While the plaintiff's treating physician indicated that when he examined the plaintiff shortly after the accident he found a limited range of motion in her cervical and lumbar spine, he failed to provide any quantified findings to support his assertions (see Fiorillo v Arriaza, 52 AD3d 465; Duke v Saurelis, 41 AD3d 770). In addition, the plaintiff failed to submit any competent evidence that she had sustained a vertebral fracture as a result of the accident (cf. Poma v Ortiz, 2 AD3d 616; Smolyar v Krongauz, 2 AD3d 518). Finally, in the absence of any competent medical evidence, the plaintiff's self-serving deposition testimony was insufficient to demonstrate the existence of a serious injury (see Duke v Saurelis, 41 AD3d 770).
SPOLZINO, J.P., SANTUCCI, MILLER, DICKERSON and ENG, JJ., concur.

Machat v. Mazzarino


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Feinman & Grossbard, P.C. [Steven N. Feinman] of counsel), for
appellants.
Sean H. Rooney, Brooklyn, N.Y., for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Shakhol Pinkhasov and AM USA, Inc., appeal from an order of the Supreme Court, Kings County (Vaughan, J.), dated June 11, 2008, which denied their motion for summary judgment dismissing the complaint insofar as asserted against him 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 made a prima facie showing that the plaintiff did not sustain a serious injury to her right knee 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). However, the submissions of the plaintiff in opposition, which included an affirmation of her treating orthopedist, who performed surgery on her right knee three months after the accident, and an affirmation of her radiologist, who reported that an MRI taken approximately three weeks after the accident revealed tears in that knee's menisci and cruciate ligaments, were sufficient to raise a triable issue of fact (see Nigro v Kovac, 45 AD3d 547-548). Accordingly, the Supreme Court properly denied the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.
FISHER, J.P., COVELLO, BALKIN and BELEN, JJ., concur.

Spikoski v. HUB Truck Rental


Jacoby & Meyers, LLP (Finkelstein & Partners, Newburgh, N.Y.
[Kristine M. Cahill], of counsel), for appellant.
Eschen, Frenkel & Weisman, LLP, Bay Shore, N.Y. (Robert I.
Meyers of counsel), for
plaintiff/counterclaim defendant-respondent.
Savona, D'Erasmo & Hyer LLC, New York, N.Y. (Raymond
M. D'Erasmo and Joseph F. X. Savona
of counsel), for
defendants/counterclaim
plaintiffs-respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff Stevie Burke appeals from so much of an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated July 24, 2007, as granted that branch of the motion of the plaintiff/counterclaim defendant, Christine Spikoski, which was for summary judgment dismissing the counterclaim for indemnification or contribution asserted against her on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and, upon searching the record, awarded the defendants/counterclaim plaintiffs summary judgment dismissing the complaint insofar as asserted by him on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the appeal from so much of the order as granted that branch of the motion of the plaintiff/counterclaim defendant, Christine Spikoski, which was for summary judgment dismissing the counterclaim for indemnification or contribution asserted against her is dismissed, as the plaintiff Stevie Burke is not aggrieved by that portion of the order (see CPLR 5511); and it is further,

ORDERED that the order is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

The Supreme Court properly determined that the defendants/counterclaim plaintiffs were entitled to summary judgment dismissing the complaint insofar as asserted by the plaintiff Stevie Burke. The record demonstrated that Burke 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).

Burke's remaining contentions are without merit.
SPOLZINO, J.P., SANTUCCI, MILLER, DICKERSON and ENG, JJ., concur.

Schultz v. Penske Truck Leasing Co., L.P.


Appeals from an order of the Supreme Court, Genesee County (Robert C. Noonan, A.J.), entered November 21, 2007 in a personal injury action. The order, insofar as appealed from, denied the motion of defendants Penske Truck Leasing Co., L.P., Penske Truck Leasing Corporation and Dale Alan Miller seeking partial summary judgment or, in the alternative, severance.

WALSH & WILKINS, BUFFALO (CHRISTOPHER E. WILKINS OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
TREVETT CRISTO SALZER & ANDOLINA P.C., ROCHESTER (MARK CAMPANELLA OF COUNSEL), FOR PLAINTIFF-APPELLANT.

CELLINO & BARNES, P.C., ROCHESTER (CHARLES F. BURKWIT OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.

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

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Holly L. Schultz, plaintiff wife, as a result of two motor vehicle accidents. The first accident occurred in January 2004 when the vehicle owned and operated by Eric Schultz, plaintiff husband, collided with a vehicle owned by defendants Penske Truck Leasing Co., L.P. and Penske Truck Leasing Corporation and operated by defendant Dale Alan Miller (collectively, Penske defendants). Plaintiff wife was a passenger in the vehicle driven by plaintiff husband. The second accident occurred in March 2004 when a vehicle in which plaintiff wife was a passenger collided with a vehicle owned and operated by defendant Bryan D. Wright. The Penske defendants appeal from an order that, inter alia, denied their motion seeking partial summary judgment dismissing the causes of actions with respect to the January 2004 accident on the ground that plaintiff wife did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) or, in the alternative, seeking to sever those causes of action from the causes of action with respect to the March 2004 accident. Plaintiff husband also appeals from the order insofar as it denied that part of the motion of the Penske defendants seeking severance, inasmuch as he had joined in the motion as a counterclaim defendant with respect to the January 2004 accident. We affirm.

We conclude that Supreme Court properly denied that part of the motion seeking partial summary judgment dismissing the causes of action with respect to the January 2004 accident. According to plaintiff wife, she sustained a serious injury under the significant disfigurement, permanent consequential limitation of use, and significant limitation of use categories. The Penske defendants met their initial burden on the motion with respect to those categories by submitting an affidavit and report of the physician who examined plaintiff wife at their request. The physician stated in her affidavit and report that the injuries allegedly sustained by plaintiff wife, which ultimately resulted in surgical intervention and a scar, were not causally related to the January 2004 accident but, rather, they were attributable to her degenerative disc disease (see Fryar v First Student, Inc., 21 AD3d 525, 526; Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456). We conclude, however, that plaintiffs raised a triable issue of fact precluding summary judgment by submitting objective evidence of plaintiff's C5-6 herniated disc injury (see Chmiel v Figueroa, 53 AD3d 1092, 1093; Yoonessi v Givens, 39 AD3d 1164, 1165; Coleman v Wilson, 28 AD3d 1198). Plaintiffs also submitted evidence raising a triable issue of fact with respect to the resulting scar (see Cushing v Seemann, 247 AD2d 891, 892). We further conclude that the court did not abuse its discretion in denying that part of the motion seeking severance (see generally Rapini v New Plan Excel Realty Trust, Inc., 8 AD3d 1013; Southworth v Macko, 294 AD2d 920).

Valentin v. Pomilla


Marjorie E. Bornes, New York, for appellant.
Shapiro Law Offices, Bronx (Jason S. Shapiro of counsel), for
respondent.

Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered on or about November 26, 2007, which denied defendants' motions for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motions granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

Defendants established prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) by submitting a radiologist's affirmed report that plaintiff's MRI films revealed evidence of degenerative disc disease predating the accident and no evidence of post-traumatic injury to the disc structures (see Perez v Hilarion, 36 AD3d 536, 537 [2007]). In opposition, plaintiff failed to raise an inference that his injury was caused by the accident (see Diaz v Anasco, 38 AD3d 295 [2007]) by not refuting defendants' evidence of a preexisting degenerative condition of the spine. Missing from all of plaintiff's submissions is any mention of the congenital defect at the S1 vertebral level and degenerative condition of plaintiff's lumbar spine reported by Dr. Eisenstadt or the preexisting degenerative changes in his right knee and degenerative meniscal tears in both posterior horns of both menisci reported by plaintiff's own experts, Drs. Lubin and Rose, in their initial evaluation of plaintiff's right knee shortly after the accident (see Pommells v Perez, 4 NY3d 566, 580 [2005]).

With regard to his claim that the evidence submitted by him was sufficient to raise an inference that he suffered injuries that were caused by the accident, plaintiff asserts that his MRIs of the cervical and lumbar spine revealed disc herniation at L4-5 and L5-S1 and disc bulging at C4-C5, and that EMGs revealed L5-S1 radiculopathy. However, "[a] herniated disc, by itself, is insufficient to constitute a serious injury'; rather, to constitute such an injury, a herniated disc must be accompanied by objective evidence of the extent of alleged physical
limitations resulting from the herniated disc" (Onishi v N & B Taxi, Inc., 51 AD3d 594, 595 [2008]). Plaintiff also contends that the MRI of his right knee revealed a medial meniscal tear, for which he ultimately underwent arthroscopy. Again, he makes no mention of the degenerative nature of that condition.

In addition, plaintiff argues that his chiropractor Dr. Zeren's affidavit set forth objective quantified evidence of the degree of limitation and permanency of the injuries sustained by him. Notably, he contends Dr. Zeren found positive straight-leg testing during plaintiff's May 30, 2007 examination (see Brown v Achy, 9 AD3d 30, 31-32 [2004]), and that plaintiff was also noted to have decreased limitation of motion of the lumbar and cervical spine (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]).

However, plaintiff's reliance on Dr. Zeren's affidavit is misplaced. Although he presumably saw plaintiff just days after the accident, Dr. Zeren failed to provide documentation regarding that visit or any contemporaneous evidence of limitations. In this regard, there were no contemporaneous limitations shown regarding the accident — at most, some limitations were purportedly measured by Dr. Hausknecht two months after the accident (see Thompson v Abbasi, 15 AD3d 95, 98 [2005] ["despite the positive MRI findings as to plaintiff's cervical spine two months after the accident, there are no objective findings contemporaneous with the accident showing any initial range-of-motion restrictions on plaintiff's cervical spine"] [emphasis added]). Even if Dr. Hausknecht's report were considered contemporaneous, the limitations concerned only lateral flexion of the cervical spine and forward flexion of the lumbar spine, and were minor. In addition, Dr. Hausknecht failed to address whether plaintiff's condition was causally related to the motor vehicle accident at issue.

The most significant flaw in plaintiff's arguments is his failure to address causation. "To recover damages for noneconomic loss related to personal injury allegedly sustained in a motor vehicle accident, the plaintiff is required to present nonconclusory expert evidence sufficient to support a finding not only that the alleged injury is serious' within the meaning of Insurance Law § 5102(d), but also that the injury was causally related to the accident. Absent an explanation of the basis for concluding that the injury was caused by the accident, as opposed to other possibilities evidenced in the record, an expert's conclusion that plaintiff's condition is causally related to the subject accident is mere speculation, insufficient to support a finding that such a causal link exists" (Diaz v Anasco, 38 AD2d at 295-296 [internal quotation marks and citations omitted]).

Here, not only did plaintiff's experts fail to refute defendants' evidence of a preexisting congenital and degenerative condition of the spine, his own doctors reported a degenerative condition of the right knee. Dr. Rose's failure even to mention, let alone explain, why he ruled out degenerative changes as the cause of plaintiff's knee and spinal injuries rendered his opinion that they were caused by the accident speculative (see Gorden v Tibulcio, 50 AD3d 460, 464 [2008]). Consequently, there is no objective basis for concluding that the present physical limitations and continuing pain are attributable to the subject accident rather than to the degenerative condition (see Jimenez v Rojas, 26 AD3d 256, 257 [2006]). In Pommells v Perez (4 NY3d 566 [2005], supra), where, as here, there was persuasive evidence that the plaintiff's alleged pain and injuries were related to preexisting degenerative conditions, the Court held that plaintiff had the burden of coming forward with evidence addressing the defendants' claimed lack of causation. In the absence of such evidence, the defendants are entitled to summary dismissal of the complaint (id. at 580; see also Franchini v Palmieri, 1 NY3d 536, 537 [2003]; Licari v Elliott, 57 NY2d 230, 237 [1982]).

Moreover, absent any objective medical evidence that his injuries were caused by the accident, plaintiff's statements that he was limited in his ability to exercise or perform personal maintenance were insufficient to establish his 90/180-day claim. Despite plaintiff's claim that he was confined to bed and home from the date of the accident to the present date and the conclusion of Dr. Hausknecht, who examined him during the statutory time period, that plaintiff was "totally disabled" and "I . . . advised him to restrict his activities," plaintiff still fails to offer competent medical proof that he could not perform substantially all his daily activities for 90 of the first 180 days following the accident "because of an injury or impairment caused by the accident" (Rossi v Alhassan, 48 AD3d 270, 271 [2008]). Such statements are too general in nature to raise an issue of fact that plaintiff was unable to perform his usual and customary activities during the statutorily required time period and do not support any claim that plaintiff's confinement to bed and home was medically required (see Gorden v Tibulcio, 50 AD3d at 463).

Finally, although defendants Francesco Pomilla and Yvonne M. Pomilla did not appeal from the denial of their cross motion for summary judgment, upon a search of the record, we grant summary judgment to them pursuant to CPLR 3212(b) (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-112 [1984]).

RAFI v RUTGERS CASUALTY INS. CO.



Appeal from a judgment of the Supreme Court, Cattaraugus County (Larry M. Himelein, A.J.), entered February 1, 2008 in a breach of contract action. The judgment, upon a jury verdict, awarded plaintiffs damages.


BOND, SCHOENECK & KING, PLLC, BUFFALO (STEPHEN A. SHARKEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
J. MICHAEL SHANE, ALLEGANY, FOR PLAINTIFFS-RESPONDENTS.


It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and a new trial is granted.

Memorandum: Defendant appeals from a judgment rendered in favor of plaintiffs, following a jury trial, based on the refusal by defendant to pay plaintiffs' claim for losses under an insurance policy issued by defendant to plaintiffs. We agree with defendant that Supreme Court committed reversible error in charging the jury that defendant was required to prove that the alleged misrepresentations made by plaintiffs on their insurance application were intentional in order to prevail on its affirmative defense, seeking to void the insurance policy. Rather, although misrepresentations made by an insured must be material, they may be innocently or unintentionally made (see Curanovic v New York Cent. Mut. Fire Ins. Co., 307 AD2d 435, 436-437; see generallyInsurance Law § 3105 [a], [b]), in which event the insurance policy is void ab initio (see Precision Auto Accessories, Inc. v Utica First Ins. Co., 52 AD3d 1198, 1201, lv denied 11 NY3d 709; see also Taradena v Nationwide Mut. Ins. Co., 239 AD2d 876, 877). Thus, the court should have charged the jury that, in order to prevail on its affirmative defense, defendant was required to submit "proof concerning its underwriting practices with respect to applicants with similar circumstances" in order to meet its burden of establishing that it would not have issued the same policy had the correct information been included in the application(Campese v National Grange Mut. Ins. Co., 259 AD2d 957, 958; see Precision Auto Accessories, Inc., 52 AD3d at 1200; Curanovic, 307 AD2d at 437; seealso § 3105 [c]). We cannot conclude that the error in the court's charge is harmless, and wetherefore reverse the judgment and grant a new trial (see Wilson v Nationwide Mut. Ins. Co., 168 AD2d 912, lv dismissed 77 NY2d 940).
Entered: February 6, 2009

TRUPO v PREFERRED MUTUAL INSURANCE COMPANY


Appeal and cross appeal from an order of the Supreme Court, Monroe County (Matthew A. Rosenbaum, J.), entered January 7, 2008 in a breach of contract action. The order denied defendant's motion for summary judgment and granted in part and denied in part plaintiffs' cross motion for summary judgment.


WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, WHITE PLAINS (MICHAEL J. CASE OF COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT.
KNAUF SHAW LLP, ROCHESTER (ALAN J. KNAUF OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS-APPELLANTS.


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

Memorandum: Plaintiffs commenced this action seeking a determination that defendant is obligated to provide coverage for damage to their home and personal property pursuant to the terms of the insurance policy issued by defendant to them. Plaintiffs' home was allegedly damaged when approximately 75 gallons of a chemical mixture were released into the atmosphere from a nearby plant operated by the former Diaz Chemical Corporation. Supreme Court denied defendant's motion for summary judgment dismissing the complaint and granted in part plaintiffs' cross motion for summary judgment, determining that the insurance policy in question covers damages caused by or arising from the explosion. The court denied that part of plaintiffs' cross motion for damages in the amount of approximately $144,000, and instead ordered that a hearing on damages would be conducted. We affirm.

The policy issued by defendant provided coverage for "direct physical loss" caused by certain perils, including explosion. We agree with plaintiffs that the incident at the chemical plant constitutes an explosion under the policy and that the alleged contamination of their home was caused by that explosion. We further agree with plaintiffs that the exclusion relied upon by defendant, entitled "Wear and Tear," does not apply to this case. Pursuant to that exclusion, defendant would "not pay for loss which results from wear and tear, marring, deterioration, inherent vice, latent defect, mechanical breakdown, rust, wet or dry rot, corrosion, mold, contamination or smog" (emphasis added). We reject defendant's contention that, because the damage to plaintiffs' home arises out of pollution or contamination, the exclusion for "Wear and Tear" applies. Rather, we conclude that the exclusion in question is ambiguous and thus should be construed in favor of plaintiffs, the insureds (see generally White v Continental Cas. Co., 9 NY3d 264, 267; Belt Painting Corp. v TIG Ins. Co., 100 NY2d 377, 383). The title "Wear and Tear" would lead an average person to believe that the exclusion for "contamination" therein included only contamination that occurred over time, rather than a sudden occurrence such as the incident here. We have considered defendant's remaining contentions and conclude that they are without merit.

Contrary to the contention of plaintiffs on their cross appeal, the court properly denied that part of their cross motion for summary judgment on damages inasmuch as there are triable issues of fact with respect thereto (see generally Zuckerman v City of New York, 49 NY2d 557, 562).

All concur except Scudder, P.J., and Pine, J., who dissent in part and vote to modify in accordance with the following Memorandum: We respectfully dissent in part. Although we agree with the majority that the incident at the chemical plant constituted an explosion under the insurance policy issued by defendant to plaintiffs and that the alleged contamination of plaintiffs' home was caused by that explosion, we disagree with the majority that the policy exclusion relied upon by defendant does not apply to preclude plaintiffs' recovery under the policy. That exclusion is entitled "Wear and Tear," and it provides that defendant will "not pay for loss which results from wear and tear, marring, deterioration, inherent vice, latent defect, mechanical breakdown, rust, wet or dry rot, corrosion, mold, contamination or smog" (emphasis added). We cannot agree with the majority that the exclusion in question is ambiguous. Plaintiffs suffered a loss from contamination, and the policy specifically excludes loss resulting from contamination. "[U]nambiguous provisions of an insurance contract must be given their plain and ordinary meaning" (White v Continental Cas. Co., 9 NY3d 264, 267; see Kula v State Farm Fire & Cas. Co., 212 AD2d 16, 19, lv dismissed in part and denied in part 87 NY2d 953).

The majority focuses on the title of the paragraph containing the exclusion in question and concludes that it would lead an average person to believe that the exclusion for contamination was only for contamination that occurred over time. We disagree. Rather, we apply the principle of statutory construction that titles are given little weight. "The title of a statute may be resorted to . . . only in case of ambiguity in meaning, and it may not alter or limit the effect of unambiguous language in the body of the statute itself" (McKinney's Cons Laws of NY, Book 1, Statutes § 123 [a]). Inasmuch as the language in the exclusion in question is unambiguous and does not limit the exclusion to contamination that occurs over time, we decline to add such limiting language. We therefore would modify the order by granting defendant's motion for summary judgment and dismissing the complaint and by denying plaintiffs' cross motion for summary judgment in its entirety and vacating the determination in favor of plaintiffs with respect to coverage under the insurance policy.
Entered: February 6, 2009

VIVIAN STERN, DOING BUSINESS AS THE JEWELER v

THE CHARTER OAK FIRE INSURANCE COMPANY


Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered May 6, 2008 in a breach of contract action. The order, inter alia, denied that part of the motion of plaintiff for leave to renew her opposition to the motion of defendant The Charter Oak Fire Insurance Company to dismiss plaintiff's claim for consequential damages.

CARL E. WORBOYS, SYRACUSE, FOR PLAINTIFF-APPELLANT.
RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (R. ANTHONY RUPP, III, OF COUNSEL), FOR DEFENDANT-RESPONDENT.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting that part of the motion of plaintiff for leave to renew her opposition to the motion of defendant The Charter Oak Fire Insurance Company and, upon renewal, denying the motion of that defendant and reinstating the claim for consequential damages and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action alleging that defendants breached the terms of the insurance policy issued to her by failing, inter alia, to pay certain claims for losses arising from an armed robbery at plaintiff's jewelry store. On a prior appeal, we affirmed an order that, inter alia, granted the motion of defendant The Charter Oak Fire Insurance Company (Charter Oak) to dismiss plaintiff's claim for consequential damages (Stern v Charter Oak Fire Ins. Co., 38 AD3d 1288). We cited, inter alia, Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y. (37 AD3d 1184) in concluding that "[t]he insurance policy at issue expressly excludes coverage for the consequential damages claimed by plaintiff" (Stern, 38 AD3d 1288).

Following our decision in the prior appeal, the Court of Appeals reversed the order in Bi-Economy Mkt., Inc., concluding under circumstances similar to those present in this case that a contractual exclusion for consequential losses in the insurance policy issued to the plaintiff business did not bar its claim for consequential damages caused by the defendant insurer's alleged breach of the terms of the policy (Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d 187, 194-196; see Panasia Estates, Inc. v Hudson Ins. Co., 10 NY3d 200, 203).

While the instant action remained pending, plaintiff moved, inter alia, for leave to renew her opposition to Charter Oak's motion to dismiss her claim for consequential damages, based upon the decisions of the Court of Appeals in Bi-Economy Mkt., Inc. and Panasia Estates, Inc. Supreme Court erred in denying that part of plaintiff's motion for leave to renew with respect to consequential damages based upon the doctrine of law of the case and instead should have granted leave to renew and, upon renewal, denied Charter Oak's motion. "[A] court of original jurisdiction may entertain a motion to renew or [to] vacate a prior order or judgment even after an appellate court has rendered a decision on that order or judgment" (Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374, 377). Furthermore, we conclude that, because "the analysis employed by this [C]ourt in the prior appeal no longer reflects the current state of the law, the doctrine of law of the case should not be invoked to preclude reconsideration of" Charter Oak's motion to dismiss plaintiff's claim for compensatory damages (Szajna v Rand, 131 AD2d 840, 840; see Foley v Roche, 86 AD2d 887, lv denied 56 NY2d 507). We therefore modify the order accordingly.
Entered: February 6, 2009

TABONE v KEUN Y. LEE, M.D.


Appeal from an order of the Supreme Court, Niagara County (Frank Caruso, J.), entered January 18, 2008 in a medical malpractice action. The order, insofar as appealed from, granted the motion of defendants Keun Y. Lee, M.D. and Buffalo Otolaryngology Group, P.C. and the cross motion of defendant Kaleida Health, doing business as Millard Fillmore Gates Hospital, and directed plaintiff Samuel L. Tabone to provide medical authorizations in compliance with the Health Insurance Portability and Accountability Act of 1996 with no date restrictions.


BROWN CHIARI LLP, LANCASTER (MICHAEL R. DRUMM OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
DAMON & MOREY LLP, BUFFALO (FRANK C. CALLOCCHIA OF COUNSEL), FOR DEFENDANTS-RESPONDENTS KEUN Y. LEE, M.D. AND BUFFALO OTOLARYNGOLOGY GROUP, P.C.
GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (ANGELO S. GAMBINO OF COUNSEL), FOR DEFENDANT-RESPONDENT KALEIDA HEALTH, DOING BUSINESS AS MILLARD FILLMORE GATES HOSPITAL.


It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, plaintiff Samuel L. Tabone is directed to provide current time-restricted authorizations for the medical providers in question and, with respect to any such medical provider from whom he received treatment at a different time than that specified in the authorization, plaintiff Samuel L. Tabone is further directed to submit the records of such treatment to Supreme Court, and the matter is remitted to Supreme Court, Niagara County, for further proceedings in accordance with the following Memorandum: Plaintiffs commenced this medical malpractice action seeking damages based on the alleged failure of defendants Keun Y. Lee, M.D. and Buffalo Otolaryngology Group, P.C. (Lee defendants) and Kaleida Health, doing business as Millard Fillmore Gates Hospital (Kaleida), to diagnose Samuel L. Tabone (plaintiff) with throat cancer in the course of their care and treatment of him. In response to the respective demands of the Lee defendants and Kaleida, plaintiff furnished them with medical authorizations in compliance with the Health Insurance Portability and Accountability Act of 1996 (42 USC § 1320d et seq.), but limited those authorizations either to specific dates or to retroactive periods ranging from 21 months to 6 years. According to plaintiffs' attorney, those limited authorizations were "intended to encompass all records . . . which do or may relate to the events underlying [the] action." The Lee defendants moved for an order compelling plaintiff, inter alia, to furnish authorizations that were "without date restrictions," and Kaleida cross-moved for, inter alia, that same relief. We conclude that Supreme Court abused its discretion in granting the motion and cross motion without first conducting an in camera review of the records of the medical providers in question that were outside the time periods specified in the authorizations to determine whether the records are material and related to any physical or mental condition placed in issue by plaintiffs.

"In bringing the action, plaintiff waived the physician/patient privilege only with respect to the physical and mental conditions affirmatively placed in controversy" (Mayer v Cusyck, 284 AD2d 937, 938). Here, all of plaintiffs' claims of injury and damages arise from the alleged undiagnosed cancer and its sequelae. Contrary to defendants' contentions, the allegations in the bill of particulars that plaintiff sustained, inter alia, mild cachexia and anorexia, loss of enjoyment of life, disability, disfigurement, fear of death, and extensive pain and suffering do not constitute such "broad allegations of injury" that they place plaintiff's entire medical history in controversy (Geraci v National Fuel Gas Distrib. Corp., 255 AD2d 945, 946). Thus, as previously noted, the court abused its discretion in compelling plaintiff to provide authorizations with no date restrictions without first conducting an in camera review of the records of treatment outside the specified time periods (see Mayer, 284 AD2d at 937-938; Carter v Fantauzzo, 256 AD2d 1189, 1190; cf. Geraci, 255 AD2d at 946).

We therefore reverse the order insofar as appealed from, direct plaintiff to provide current time-restricted authorizations for the medical providers in question and, with respect to any such medical provider from whom plaintiff received treatment at a different time than that specified in the authorization, further direct plaintiff to submit the records of such treatment to the court, and we remit the matter to Supreme Court for an in camera review of those records to determine whether they are material and related to any physical or mental condition placed in issue by plaintiffs (see Mayer, 284 AD2d at 938).
Entered: February 6, 2009

Essex Insurance Company v. Oakwood Construction Corp.


Suckle Schlesinger PLLC, New York, N.Y. (Howard A. Suckle of
counsel), for appellant.
Clausen Miller PC, New York, N.Y. (Edward M. Kay, Steven
J. Fried, and Joseph Ferrini of
counsel), for respondent.


DECISION & ORDER

In an action for a judgment declaring that the plaintiff Essex Insurance Company is not obligated to defend and indemnify the defendants Oakwood Construction Corporation and Robert Thornton in an underlying action entitled Case v Yamaha Motor Co., pending in the Supreme Court, New York County, under Index No. 119640/03, the defendant Timothy Case appeals from an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated July 17, 2007, which granted the plaintiff's motion for summary judgment declaring that the plaintiff is not so obligated, and denied his cross motion, made jointly with the defendants Oakwood Construction Corporation and Robert Thornton, for summary judgment declaring that the plaintiff is so obligated.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment declaring that Essex Insurance Company is not obligated to defend and indemnify the defendants Oakwood Construction Corporation and Robert Thornton in an underlying action entitled Case v Yamaha Motor Co., pending in the Supreme Court, New York County, under Index No. 119640/03.

Oakwood Construction Corporation and Robert Thornton (hereinafter together Oakwood) failed to provide Essex Insurance Company (hereinafter Essex) with notice of the underlying incident "as soon as practicable," in violation of the requirements of their insurance policy (see Felix v Pinewood Bldrs., Inc., 30 AD3d 459, 461). In opposition, Oakwood failed to demonstrate a good faith belief in nonliability that was reasonable under the circumstances (see id.; Travelers Indem. Co. [*2]v Worthy, 281 AD2d 411, 412; Zadrima v PSM Ins. Cos., 208 AD2d 529, 530; Winstead v Uniondale Union Free School Dist., 201 AD2d 721, 723). Additionally, Oakwood failed to provide notice of Timothy Case's claim "as soon as practicable," as required by the policy (see Safer v Government Empls. Ins. Co., 254 AD2d 344, 345). Under the circumstances, Essex disclaimed coverage as soon as reasonably possible (see Insurance Law § 3420[d]; New York Cent. Mut. Fire Ins. Co. v Majid, 5 AD3d 447, 448; Generali-U.S. Branch v Rothschild, 295 AD2d 236, 237-238; Farmbrew Realty Corp. v Tower Ins. Co. Of N.Y., 289 AD2d 284, 285).

Moreover, Case's injury did not fall within the coverage of the policy (see Singh v Allcity Ins. Co., 1 AD3d 501, 502). To that extent, Essex was not required to timely disclaim coverage (see Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188; Perkins v Allstate Ins. Co., 51 AD3d 647, 649).

Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Suffolk County, for the entry of a judgment declaring that Essex is not obligated to defend and indemnify Oakwood in the underlying action (see Lanza v Wagner, 11 NY2d 317, 334).

Gulf Insurance Company v. Stradford


Lutfy & Santora, Staten Island, N.Y. (James L. Lutfy of counsel),
for appellant.
Saretsky, Katz, Dranoff & Glass, LLP, New York, N.Y. (Allen
L. Sheridan of counsel), for
respondent.

DECISION & ORDER

In an action for a judgment declaring that the plaintiff is not obligated to defend or indemnify the defendant Terrance D. Stradford, D.D.S., in an underlying action entitled Langley v Stradford pending in the Supreme Court, Kings County, under Index No. 49696/00, the defendant William Langley appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated June 28, 2007, as granted that branch of the plaintiff's motion which was for summary judgment, and denied his cross motion for summary judgment.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's motion which was for summary judgment and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant William Langley.

The timeliness of a carrier's disclaimer based on its insured's alleged violation of the policy's cooperation clause "almost always presents a factual question, requiring an assessment of all relevant circumstances surrounding [the] particular disclaimer" and "cases in which the reasonableness of an insurer's delay may be decided as a matter of law are exceptional and present extreme circumstances" (see Continental Ins. Co. v Stradford, 11 NY3d 443, 449). This case is neither exceptional nor does it present extreme circumstances. Accordingly, we modify the order of the Supreme Court to deny the plaintiff's motion for summary judgment.

Garcia v. Lopez


Richard T. Lau, Jericho, N.Y. (Kathleen E. Fioretti of counsel), for
appellants.
Ben Lyhovsky, Brooklyn, N.Y., for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Antonio Alvarez and Ceferino S. Hurtado appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated January 23, 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 payable by the respondent to the appellants, the motion of the defendants Antonio Alvarez and Ceferino S. Hurtado for summary judgment dismissing the complaint insofar as asserted against them is granted and, upon searching the record, summary judgment is awarded to the defendant Santiago Lopez dismissing the complaint insofar as asserted against him.

The appellants Antonio Alvarez and Ceferino S. Hurtado met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact. The report of Dr. Charles Cooper regarding the magnetic resonance imaging (hereinafter MRI) of the plaintiff's left shoulder was without probative value in opposing the appellants' motion since it was 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. Bella Sandler failed to raise a triable issue of fact. While Dr. Sandler noted significant limitations in the range of motion of the plaintiff's cervical spine based on an examination conducted on June 22, 2006, which was over four years after the subject accident, neither the plaintiff nor Dr. Sandler proffered any competent medical evidence that revealed the existence of range of motion limitations that were contemporaneous with the accident (see Leeber v Ward, 55 AD3d 563; Ferraro v Ridge Car Serv., 49 AD3d 498; D'Onofrio v Floton, Inc., 45 AD3d 525).

The affirmed MRI reports of Dr. Robert Scott Schepp concerning the plaintiff's lumbar spine merely indicated that as of May 16, 2002, the plaintiff had a herniated disc at L4-5, and bulging discs at L3-4 and L5-S1. As to the MRI of the cervical spine, on April 27, 2002, Dr. Schepp noted the existence of osteophyte formations at C3-4, C4-5, C5-6 and C6-7. He did not observe any disc herniations or disc bulges. Dr. Schepp did not express any opinion as to the cause of the herniated disc and bulging discs in the lumbar spine, or the osteophyte formations throughout the cervical spine (see Collins v Stone, 8 AD3d 321).

The plaintiff further failed to adequately explain the gap between the time she stopped treatment and her most recent examination by Dr. Sandler on June 22, 2006 (see Pommells v Perez, 4 NY3d 566; Berktas v McMillian, 40 AD3d 563; Waring v Guirguis, 39 AD3d 741; see also Mullings v Huntwork, 26 AD3d 214).

The plaintiff failed to submit competent medical evidence that the injuries she allegedly sustained in the subject accident rendered her unable to perform substantially all of her usual and customary 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).

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 Michel v Blake, 52 AD3d 486; Marrache v Akron Taxi Corp., 50 AD3d 973; Colon v Vargas, 27 AD3d 512, 514; cf. Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430). Upon searching the record, we award summary judgment to the defendant Santiago Lopez dismissing the complaint insofar as asserted against him on the ground that the plaintiff did not sustain a serious injury within the meaning of the no-fault statute (see CPLR 3212[b]).

Giammalva v. Winters


Corigliano, Geiger & Verrill, Jericho, N.Y. (Kathleen M. Geiger
of counsel), for appellants Richard T. Winters and Richard Winters.
Rappaport Glass Greene & Levine, LLP, New York, N.Y.
(James L. Forde of counsel), for
respondent.

DECISION & ORDER

In a consolidated action to recover damages for personal injuries, the defendants Richard T. Winters and Richard Winters appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (O'Donoghue, J.), entered January 7, 2008, as denied their cross 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), and the defendant Albino Nigro separately appeals from the same order.

ORDERED that the appeal by the defendant Albino Nigro is dismissed as abandoned (see 22 NYCRR 670.8[c], [e]); and it is further,

ORDERED that the order is affirmed insofar as appealed from by the defendants Richard T. Winters and Richard Winters, with costs payable to the plaintiff by those defendants.

The defendants Richard T. Winters and Richard Winters (hereinafter the appellants) failed, in support of their cross motion, to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their cross motion, they relied upon, inter alia, the affirmed medical report of Dr. Eduardo V. Alvarez, an orthopedic surgeon, who examined the plaintiff on February 12, 2005. While Dr. Alvarez set forth range-of-motion findings with respect to the plaintiff's lumbar spine in his report, he failed to compare those findings to what is normal (see Perez v Fugon, 52 AD3d 668; Page v Belmonte, 45 AD3d 825, 825-826; Fleury v Benitez, 44 AD3d 996, 997). Moreover, while Dr. Alvarez noted in his report that the plaintiff had "normal" range of motion in his shoulders, he failed to set forth the objective tests he performed to arrive at that conclusion (see Stern v Oceanside School Dist., 55 AD3d 596, 596; Cedillo v Rivera, 39 AD3d 453; McLaughlin v Rizzo, 38 AD3d 856; Geba v Obermeyer, 38 AD3d 597; Larrieut v Gutterman, 37 AD3d 424; Schacker v County of Orange, 33 AD3d 903; Ilardo v New York City Tr. Auth., 28 AD3d 610; Kelly v Rehfeld, 26 AD3d 469; Nembhard v Delatorre, 16 AD3d 390; Black v Robinson, 305 AD2d 438).

Since the appellants failed to meet their prima facie burden, it is not necessary to consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Stern v Oceanside School Dist., 55 AD3d 596; Coscia v 938 Trading Corp., 283 AD2d 538).

Ponciano v. Schaefer


Rivkin Radler, LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F.
Korman, and Melissa M. Murphy of counsel), for appellant.
Fotopoulos, Rosenblatt & Green, New York, N.Y. (Dimitrios
C. Fotopoulos of counsel), for
respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated March 3, 2008, which denied his motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

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

The defendant satisfied his prima facie burden of showing that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957).

In opposition, the plaintiffs failed to raise a triable issue of fact. The reports of Dr. Louis C. Rose, dated March 21, 2005, concerning the plaintiffs, as well as the report of Dr. Mario Nelson dated May 11, 2005, concerning only the plaintiff Aurora Ponciano, were without any probative value in opposing the defendant's motion because they were 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 November 20, 2007, report by Dr. Rose was insufficient to raise a triable issue of fact since Dr. Rose did not perform any range of motion testing at that time (see Fiorillo v Ariaza, 52 AD3d 465, 466; Sharma v Diaz, 48 AD3d 442, 443). The medical reports of Dr. Allen Rothpearl, although affirmed, established only that as of March and April 2005, Aurora had disc bulges in her lumbar spine and a disc bulge and protrusion in her cervical spine, and that as of March, April, and May 2005, the plaintiff Sirsa Ponciano had a disc protrusion in her thoracic spine, and disc bulges in her cervical spine and lumbar spine. The existence of a herniated or bulging disc, however, is not sufficient to raise a triable issue of fact as to the existence of a serious injury without objective evidence of the extent and duration of the physical limitations allegedly resulting from the disc injury (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 affidavits of the respective plaintiffs were insufficient to satisfy that requirement (see Rabolt v Park, 50 AD3d 995, 996; Young Soo Lee v Troia, 41 AD3d 469, 470; Nannarone v Ott, 41 AD3d 441, 442).

Furthermore, neither the plaintiffs nor Dr. Rose explained the gap of more than 2 ½ years between his initial treatment of them on March 21, 2005, and the more recent examinations by him on November 20, 2007 (see Pommells v Perez, 4 NY3d 566, 574; Strok v Chez, 57 AD3d 887; Sapienza v Ruggiero, 57 AD3d 643; cf. Domanas v Delgado Travel Agency, Inc., 56 AD3d 717).

Finally, the plaintiffs failed to submit competent medical evidence that the injuries they allegedly sustained as a result of the accident rendered them unable to perform substantially all of their daily activities for not less than 90 days of the first 180 days thereafter (see Rabolt v Park, 50 AD3d at 996; Roman v Fast Lane Car Serv., Inc., 46 AD3d 535, 536; Sainte-Aime v Ho, 274 AD2d 569).

Sirma v. Beach


James G. Bilello, Westbury, N.Y. (Patricia McDonagh of counsel),
for appellants-respondents Gervais Beach and Donnette Coote.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York,
N.Y. (Stacy R. Seldin of counsel), for
appellants-respondents Nikolaos
Topaloglou and Adam B. Kaous.
Phillips, Krantz & Associates, New York, N.Y. (Lisa Michael
of counsel), for respondent-appellant
and respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Nikolaos Topaloglou and Adam Kaous appeal from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated February 27, 2008, as denied those branches of their motion which were for summary judgment dismissing the complaint insofar as asserted against them by the plaintiffs Adi Sirma, Barak Ben Shlomo, and Idit Naimi on the ground that none of those plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d), the defendants Gervais Beach and Donnette Coote separately appeal, as limited by their brief, from so much of the same order as denied those branches of their separate motion which were for summary judgment dismissing the complaint insofar as asserted against them by the plaintiffs Adi Sirma and Barak Ben Shlomo on the ground that neither of those plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d), and the plaintiff Izik Binyamin cross-appeals from the same order.

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

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the motion of the defendants Nikolaos Topaloglou and Adam Kaous which were for summary judgment dismissing the complaint insofar as asserted against them by the plaintiffs Barak Ben Shlomo and Idit Naimi and that branch of the separate motion of the defendants Gervais Beach and Donnette Coote which was for summary judgment dismissing the complaint insofar as asserted against them by the plaintiff Barak Ben Shlomo and substituting therefor provisions granting those branches of the motion and that branch of the separate motion; as so modified, the order is affirmed insofar as appealed from; and it is further,

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

In the early morning of December 31, 2005, at the intersection of Broadway and West 96th Street in Manhattan, the four plaintiffs were passengers in a taxi cab owned by the defendant Adam Kaous and operated by the defendant Nikolaos Topaloglou (hereinafter together the taxi defendants), which collided with a motor vehicle owned by the defendant Gervais Beach and operated by the defendant Donnette Coote (hereinafter together the auto defendants). The plaintiffs thereafter commenced the present action to recover damages for personal injuries, with all four plaintiffs alleging various orthopedic injuries, and the plaintiff Idit Naimi also alleging that she had sustained scarring on her nose. After joinder of issue, the taxi defendants moved for summary judgment dismissing the complaint in its entirety insofar as asserted against them, and the auto defendants separately moved for summary judgment dismissing the complaint insofar as asserted against them by the plaintiffs Adi Sirma, Barak Ben Shlomo, and Izik Binyamin. The Supreme Court granted those branches of the motion and cross motion which were for summary judgment dismissing the complaint insofar as asserted against the defendants by Binyamin, but denied the remaining branches of the motion and cross motion. The taxi defendants appeal from so much of the order as denied those branches of their motion which were for summary judgment dismissing the complaint insofar as asserted against them by Sirma, Shlomo, and Naimi, and the auto defendants separately appeal from so much of the order as denied those branches of their separate motion which were for summary judgment dismissing the complaint insofar as asserted against them by Sirma and Shlomo. Binyamin cross-appeals from so much of the order as granted those branches of the motion and cross motion which were for summary judgment dismissing the complaint insofar as asserted by him.

The Supreme Court properly denied the branches of the separate motions which were for summary judgment dismissing the complaint insofar as asserted by Sirma. The taxi defendants failed to make a prima facie showing that Sirma did not sustain a serious injury within Insurance Law § 5102(d). Although the affirmation of the taxi defendants' orthopedist concludes that Sirma was not suffering from an accident-related serious injury, the affirmation discloses that the orthopedist recorded limitations in Sirma's range of motion in his lumbar spine (see Newberger v Hirsch, 49 AD3d 700; Tchjevskaia v Chase, 15 AD3d 389). While the auto defendants did make out a prima facie case as to Sirma, the affirmation of the taxi defendants' orthopedist created a question of fact sufficient to preclude a grant of summary judgment.

However, the medical evidence submitted by the taxi defendants and auto defendants in support of their respective motions with respect to Shlomo established, prima facie, that Shlomo did not sustain a serious injury within 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, Shlomo failed to raise a triable issue of fact, as the affirmed report of the plaintiffs' expert failed to adequately quantify the restrictions he found in Shlomo's cervical and lumbar range of motion at his initial examination of Shlomo five days after the accident (see Duke v Saurelis, 41 AD3d 770).

Further, the taxi defendants established, prima facie, that Naimi did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (Toure v Avis Rent A Car Sys., 98 NY2d at 352; Gaddy v Eyler, 79 NY2d at 956-957). In opposition, Naimi failed to raise a triable issue of fact, as the affirmed report of the plaintiffs' expert failed to adequately quantify the restrictions he found in Naimi's cervical and lumbar range of motion at his initial examination of Naimi 19 days after the accident (see Duke v Saurelis, 41 AD3d 770). Moreover, Naimi did not oppose the taxi defendants' prima facie showing that she did not sustain a "significant disfigurement" within the meaning of Insurance Law § 5102(d) (cf. Lynch v Iqbal, 56 AD3d 621; Sirmans v Mannah, 300 AD2d 465).

The cross appeal must be dismissed as abandoned (see Bibas v Bibas,AD3d, 2009 NY Slip Op 00183 [2d Dept 2009]), as the respondent-appellant does not seek reversal of any portion of the order in his brief.

Staff v. Yshua


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Timothy M. Sullivan of counsel), for appellants.
Friedman & Moses, LLP, Garden City, N.Y. (Lisa M. Comeau
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 (Solomon, J.), dated December 13, 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 reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

Contrary to the Supreme Court's determination, the defendants' submissions were sufficient to establish, prima facie, their entitlement to judgment as a matter of law dismissing the complaint on the ground that the plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d) (see Gaddy v Eyler, 79 NY2d 955; Batista v Olivo, 17 AD3d 494; Grant v Fofana, 10 AD3d 446). The defendants presented the affirmation of an orthopedist, who, with a visual scale and goniometer, tested the range of motion of the plaintiff's left shoulder, right elbow, left hip, and left knee. The orthopedist reported that the ranges of motion all were within normal ranges, and set forth his specific measurements, and compared them to the norms. He also described other orthopedic tests that he performed, and reported that the results were all negative. The defendant's orthopedist concluded that the plaintiff's injuries were now resolved and without permanency, and that the plaintiff was capable of working and performing all of his daily living activities without restriction. In opposition, the plaintiff failed to raise a triable issue of fact as to whether he had sustained a serious injury (see Luckey v Bauch, 17 AD3d 411; Kivlan v Acevedo, 17 AD3d 321; Fisher v Williams, 289 AD2d 288).

Clarendon National Insurance Co. v. Atlantic Risk Management, Inc.


Babchik & Young, LLP, White Plains (Jordan M. Sklar of
counsel), for appellant.
Herrick, Feinstein LLP, New York (David L. Fox of counsel),
for respondent.

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered December 19, 2007, which, insofar as appealed from as limited by the brief, declined to compel plaintiff to produce certain documents sought by defendant, unanimously modified, on the law and the facts, to direct plaintiff to make available for inspection or produce copies of all its claims files in which defendant acted as its third-party claims administrator (TPA) from 1997 to 2005, with each party bearing its own expenses, and otherwise affirmed, without costs.

Order, same court and Justice, entered December 19, 2007, which, insofar as appealed from as limited by the brief, denied defendant's motion to compel plaintiff to comply with certain of its discovery demands, including documents requested in defendant's First and Second Sets of discovery demands, unanimously modified, on the law and the facts, to direct plaintiff to make available for inspection or produce copies of all its claims files in which defendant acted as its TPA from 1997 to 2005, with each party bearing its own expenses, and otherwise affirmed, without costs.

Order, same court and Justice, entered July 17, 2008, which, insofar as appealable, declined to consider defendant's motion to compel compliance with its Third and Fourth Sets of discovery demands, unanimously modified, on the law and the facts, the motion granted to the extent of directing plaintiff to make available for inspection or produce copies of all its claims files in which defendant acted as its TPA from 1997 to 2005, with each party bearing its own expenses, and otherwise affirmed, without costs.

Order, same court and Justice, entered August 7, 2008, which, insofar as appealed from as limited by the brief, denied without prejudice defendant's motion to compel plaintiff to comply with its Fifth Set of discovery demands, unanimously modified, on the law and the facts, to direct plaintiff to produce copies of any applicable reinsurance policies, and otherwise affirmed, without costs.

Many of defendant's requests for production, including its requests for all plaintiff's claims files in which plaintiff either agreed or disagreed with any of its TPAs' coverage [*2]recommendations and all plaintiff's claims files containing key words such as "coverage," were overbroad and unduly burdensome (see e.g. Belco Petroleum Corp. v AIG Oil Rig, 179 AD2d 516, 517 [1992]). Nonetheless, to the extent plaintiff's action is premised on contentions that it consistently relied on and approved defendant's coverage recommendations, its claims handling practices are relevant to defendant's defense (see Dias v Consolidated Edison Co. of N.Y., 116 AD2d 453 [1986]; Austin v Calhoon, 51 AD2d 958 [1976]). We find that directing plaintiff to produce all claims files in which defendant acted as TPA strikes an appropriate balance between defendant's legitimate interests in discovery of plaintiff's claims handling practices and coverage denial patterns and the burdensomeness and intrusiveness of its demands (see Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 747 [2000]). We see no reason to deviate from the general rule that, during the course of the action, each party should bear the expenses it incurs in responding to discovery requests (see Waltzer v Tradescape & Co., L.L.C., 31 AD3d 302, 304 [2006]).

As to defendant's request for information relating to reinsurance policies available to Clarendon with respect to the claims at issue in this litigation, CPLR 3101(f) entitles defendant to copies of the applicable reinsurance policies
themselves (see Anderson v House of Good Samaritan Hosp., 1 AD3d 970 [2003]).

We have considered defendant's remaining contentions and find them unavailing.

Estee Lauder Inc. v. OneBeacon Insurance Group, LLC,

 

Plaintiff appeals from an order of the Supreme Court, New York County (Carol R. Edmead, J.), entered December 12, 2006, which granted defendants' motion for summary judgment dismissing the complaint, and denied plaintiff's motion for summary judgment on its third and fourth causes of action and its cross motion to dismiss defendants' defense of untimely notice.

McGUIRE, J.

This breach of contract and declaratory judgment action commenced by plaintiff Estee Lauder Inc. against its insurer, defendant OneBeacon Insurance Group, LLC and its affiliates, arises from OneBeacon's refusal to defend and indemnify certain environmental claims asserted against plaintiff. The resolution of this appeal turns on whether OneBeacon waived its right to disclaim coverage on the ground that plaintiff failed to give it timely notice of certain claims against plaintiff.

By a letter to counsel for Lauder dated July 24, 2002, OneBeacon rejected Lauder's claim for defense and indemnity with respect to claims against Lauder relating to the Huntington and Blydenburgh landfills. Specifically, OneBeacon advised that it was "terminating its investigation of this matter and closing its file." The sole ground stated for this decision was that OneBeacon "cannot locate any further evidence" of the policy under which Lauder sought coverage, a policy that Lauder could not locate, although it identified the policy, which assertedly ran from September 19, 1968 to September 19, 1971, by its policy number. Thereafter, by a letter dated November 1, 2002, OneBeacon denied Lauder a defense to another action, the Hickey's Carting claim, relating to the Blydenburgh landfill. The stated ground for this decision was the same ground stated in the July 24 letter, i.e., that "OneBeacon has been unable to find any other evidence to confirm the existence and terms of th[e] . . . policy" that Lauder contended OneBeacon's predecessor had issued. Referencing its July 24 letter and other correspondence, OneBeacon stated that it "stands by its prior disclaimers of coverage." Neither in the July 24 nor the November 1 letter did OneBeacon ever assert that Lauder had failed to give timely notice of a claim or occurrence, let alone disclaim coverage on the ground of such a failure by Lauder.

An insurer's "notice of disclaimer must promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated" (General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979]). Of course, an insurer may reserve the right to disclaim on such different or alternative grounds as it may later find to be applicable (National Rests. Mgt. v Executive Risk Indem., 304 AD2d 387, 388 [2003]). However, "[a]n insurer must give written notice of disclaimer on the ground of late notice as soon as is reasonably possible after it learns of the accident or of grounds for disclaimer of liability, and failure to do so precludes effective disclaimer" (Matter of Firemen's Fund Ins. Co. of New York v Hopkins, 88 NY2d 836, 837 [1996] [internal quotation marks omitted]). Because of the insurer's duties to disclaim promptly and with specificity, "New York law establishes that an insurer is deemed, as a matter of law, to have intended to waive a defense to coverage where other defenses are asserted, and where the insurer possesses sufficient knowledge (actual or constructive) of the circumstances regarding the unasserted defense" (State of New York v Amro Realty Corp., 936 F2d 1420, 1431 [1991]).[FN1]

As the duties to disclaim promptly and specifically are imposed by law (see Hotel Des Artistes, Inc. v General Acc. Ins. Co. of Am., 9 AD3d 181, 193 [2004], lv dismissed 4 NY3d 739 [2004]), an insurer cannot unilaterally absolve itself of these duties. Thus, an insurer cannot avoid a waiver of a defense of which it has actual or constructive knowledge (i.e., avoid its duties to disclaim promptly and with specificity on the basis of that defense), by a unilateral assertion in a disclaimer notice that it is reserving or not waiving a right to disclaim on other, unstated grounds (id. at 185, 193 [despite statement by insurer in its disclaimer letter that it was not waiving any rights or defenses under the policy not mentioned in the letter, insurer waived defense of late notice both because it failed to disclaim on this ground in the letter and because it failed to raise a
defense of late notice in its answer]; see also Allstate Ins. Co. v Moon, 89 AD2d 804, 806 [1982]).[FN2]

On the basis of, among other things, a tolling agreement between Lauder and the Attorney General relating to the Blydenburgh landfill claim that Lauder produced to OneBeacon in April 2000 (familiarity with which OneBeacon acknowledged on July 6, 2000), a notice of potential claim relating to the Huntington landfill that Lauder provided to OneBeacon in 1987 and a notification made by Lauder to OneBeacon and other carriers in May 1999 that the Attorney General had identified it as a "potentially responsible party" in connection with the Huntington landfill, it is clear that long before its July 2002 and November 2002 letters OneBeacon had sufficient knowledge of the circumstances relating to its defense of untimely notice. Indeed, OneBeacon does not argue otherwise in its brief.

Nor did Supreme Court conclude otherwise. Rather, Supreme Court reasoned that in light of the sweeping reservation of all of its rights, "that OneBeacon possessed sufficient knowledge to assert a late-notice defense by virtue of its receipt of the [tolling agreement] . . . is inconsequential." Thus, an erroneous conclusion of law — namely, that as long as an insurer claims or reserves the right to do so, it may disclaim coverage on one ground and thereafter disclaim coverage on another ground even though it had actual or constructive knowledge of the latter ground at the time of the initial disclaimer — was the basis for Supreme Court's conclusion that OneBeacon had not waived its right to assert a defense of late notice.[FN3]

OneBeacon is not persuasive in contending that it did not disclaim coverage in its July 2002 and November 2002 letters. As noted, in the July 2002 letter OneBeacon informed Lauder that it was "terminating its investigation of this matter and closing its file" with respect to Lauder's tender under the disputed pre-1971 policy (Policy No. E-16-40036-27) with regard to the Huntington and Blydenburg landfills. With respect to the Hickey's Carting claim, OneBeacon expressly referenced in its November 2002 letter the earlier decision to close its file and went on to state, "[p]lease be advised that OneBeacon had determined, at this time, it will not revisit its prior determination." Even assuming that OneBeacon did not state in either letter that it was "disclaiming" coverage, both letters made clear that OneBeacon was denying coverage.[FN4]

No case cited by OneBeacon supports the proposition that an insurer disclaims coverage only if it uses a form of the word "disclaim" in the course of denying coverage. The cases that are on point are to the contrary (see e.g. Commercial Union Ins. Co. v International Flavors & Fragrances, Inc., 822 F2d 267, 270, 274 [2d Cir 1987] [construing New York law]). Moreover, to accept OneBeacon's position would exalt form over substance and invite gamesmanship. Because we conclude that OneBeacon did disclaim coverage in the July 2002 and November 2002 letters, we need not address Lauder's independent contentions that OneBeacon constructively waived its untimely notice defenses by failing to assert them within a reasonable time (see e.g. 151 E. 26th St. Assoc. v QBE Ins. Co., 33 AD3d 452 [2006]), and by failing to assert them with specificity in its answer to Lauder's complaint (see e.g. Hotel des Artistes, 9 AD3d at 193).

With respect to constructive waiver, one final contention by OneBeacon should be addressed. It argues that "where, as here, the existence of coverage has not been established because the insurance policy is missing, . . . an insurer cannot waive its right to disclaim coverage." To be sure, as noted above, "where the issue is the existence or nonexistence of coverage (e.g., the insuring clause and exclusions), the doctrine of waiver is simply inapplicable" (Albert J. Schiff, 51 NY2d at 698). Thus, where the putative insured fails to establish coverage, it is not created by the insurer's failure timely to disclaim coverage (id.). It does not follow, however, that when an insurer asserts that no policy was in effect during the relevant period, an untimely-notice defense to coverage need not be timely asserted.

OneBeacon's argument would be more compelling if the duties of an insurer to disclaim coverage in a timely, specific and nonselective manner were imposed solely by the terms of the contract of insurance. As noted above, however, those duties are imposed by law. So, too, at least where the policy is silent on the subject, the conditions of reasonable-notice-of-occurrence and reasonable-notice-of-claim are implied into every insurance contract (see Olin Corp. v Insurance Co. of N. Am., 743 F Supp 1044, 1051 [SD NY 1990] [construing New York law], affd 927 F2d 62 [2d Cir 1991]). Thus, as Lauder argues, knowledge of the policy's actual terms is not necessary to assert such defenses to coverage.[FN5]

Although there appears to be a paucity of precedent on the issue, OneBeacon's position is inconsistent with Burt Rigid Box, Inc. v Travelers Prop. Cas. Corp. (302 F3d 83 [2d Cir 2002]). In that case, the insurer defended in a coverage action brought by the insured on the ground, among others, that the insured had failed to prove the existence and terms of the alleged policies and thus that it was an insured (id. at 88-90). Nonetheless, construing New York law, a panel of the Second Circuit concluded that the insurer had waived its right to assert untimely notice when, in its answer, it disclaimed coverage on a number of specific grounds without specifically listing untimely notice (id. at 95-96). Although the panel did not expressly discuss the argument pressed by the insurer in the District Court that "a dispute over whether an insurance policy was ever issued negates the putative insurer's obligation to disclaim based on untimely notice of an occurrence" (126 F Supp 2d 596, 632 [WD NY 2001]), it implicitly rejected that argument.

We agree, moreover, with the reasoning of Magistrate Judge Foschio that "[i]mposing the duty on the insurer to provide an early disclaimer based on late notice of an occurrence or claim, even where the insurer claims there is no policy, enables the insured to make a prompt and fully informed decision as to whether to pursue efforts to establish the existence of the policy or to better invest its resources on investigating the potential claim, and preparing a defense" (id. at 633). Acceptance of OneBeacon's argument that an insurer is absolved of any duty to make timely, specific and nonselective disclaimers on the basis of defenses to coverage when the insurer denies that a policy was issued would entail an extraordinary proposition: that if the insurer ultimately is found to have issued the policy — even after litigation over a period of years — the insurer nonetheless still can disclaim on the basis of defenses to coverage it could have asserted prior to or at the outset of the litigation.

Finally, although Supreme Court denied Lauder's motion for partial summary judgment on its third and fourth causes of action, it did not discuss that motion in its decision and apparently denied it as moot given its determination that OneBeacon was entitled to summary judgment dismissing the complaint. We grant Lauder's motion. Lauder came forward with sufficient secondary evidence of the disputed pre-1971 policy — including, specifically, a renewal policy issued to it by OneBeacon's predecessor stating in the declaration page that the policy being renewed is the disputed policy, No. E16-40036-27, and two certificates of insurance signed by the predecessor in 1969 and 1970, both certifying, among other things, that the policy, No. E16-40036-27, was issued to Lauder effective September 18, 1968 with an expiration date of September 18, 1971 — to establish the existence of the policy and to invoke the presumptions that the terms of the renewal policy are identical to the terms of the policy being renewed and that the policy being renewed, like the renewal policy, was a three-year policy ending on September 18, 1971 (see Century Indem. Co. v Aero-Motive Co., 254 F Supp 2d 670, 692 [WD Mich 2003] [upholding insured's reliance "on the rule that unless an agreement to the contrary is shown, a renewal policy is presumed to be on the same terms, conditions, and amounts as provided in the original policy"]; Lewitt & Co. v Jewelers' Safety Fund Socy., 249 NY 217, 222 [1928] ["Clearly, a policy which renews an old policy must renew the terms of that policy as they stood at the moment of expiration. An agreement to renew a policy, implies that the terms of the existing policy are to be continued . . . in the absence of evidence, that a change was intended"] [emphasis in original; internal quotation marks omitted]). As Lauder would be entitled to a defense under the duty-to-defend clause in the renewal policy, it adduced sufficient evidence on its motion to establish that it is entitled to a defense in the underlying actions that are the subject of its third and fourth causes of action.[FN6]

In its opposition, OneBeacon failed to meet its burden of coming forward with evidentiary facts sufficient to raise any material issues of fact that would require denial of Lauder's motion (see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 343 [1974]). As the affidavit of Lauder's expert submitted in its reply convincingly demonstrates, OneBeacon's expert offered only unsupported assumptions and speculation (see Aero-Motive, 254 F Supp 2d at 692-693; Batista v Rivera, 5 AD3d 308, 309 [2004]; Warden v Orlandi, 4 AD3d 239, 242 [2004]; Leggio v Gearhart, 294 AD2d 543, 545 [2002]). For this same reason, OneBeacon failed to raise a material issue of fact supporting its position — on which it bears the burden of proof (see Town of Massena v Healthcare Underwriters Mut. Ins. Co., 98 NY2d 435, 444 [2002]) — that the disputed policy would have contained a pollution exclusion during the entire policy period.

Accordingly, the order of Supreme Court, New York County (Carol R. Edmead, J.), entered December 12, 2006, which granted defendants' motion for summary judgment dismissing the complaint, and denied plaintiff's motion for summary judgment on its third and fourth causes of action and plaintiff's cross motion to dismiss defendants' defense of untimely notice, should be reversed, on the law, with costs, defendants' motion for summary judgment should be denied, plaintiff's motion for summary judgment on its third and fourth causes of action granted, plaintiff's cross motion for summary judgment dismissing defendants' untimely notice defense with respect to plaintiff's first and second causes of action granted, and the matter remanded to Supreme Court for further proceedings.

All concur.

Tom, J.P., Saxe, Friedman, Gonzalez, McGuire, JJ.
 

Footnotes



Footnote 1:However, "where the issue is the existence or nonexistence of coverage (e.g., the insuring clause and exclusions), the doctrine of waiver is simply inapplicable" (Albert J. Schiff Assoc. v Flack, 51 NY2d 692, 698 [1980]).

Footnote 2:We came to the same conclusion in Benjamin Shapiro Realty Co. v Agricultural Ins. Co. (287 AD2d 389 [2001]). There, we held that an insurer had waived the defense of untimely notice of occurrence when its disclaimer letter asserted a different lack of notice ground. Although it is not mentioned in our memorandum decision, Lauder correctly points out that the disclaimer letter in Benjamin Shapiro asserted that nothing in the letter should be construed "as a waiver of any of the terms and conditions of the policy, or of any rights or defenses provided by law, all of which are expressly reserved."

Footnote 3:For this reason, Supreme Court denied Lauder's cross motion to dismiss OneBeacon's defense of untimely notice. For this same reason, and because Supreme Court concluded that Lauder had failed to give timely notice, Supreme Court granted OneBeacon's cross-motion for summary judgment dismissing the complaint.

Footnote 4:As noted above, the November 2002 letter also stated that OneBeacon "stands by its prior disclaimers of coverage with regard to the pre-1971 policies issued by [its predecessor]" (emphasis added). OneBeacon plausibly argues that put in context the reference to "pre-1971" policies reflects a typographical error and that the letter intended and could only have been understood to refer to other, post-1971 policies. Given our view that the substance of both letters should be controlling, we think it irrelevant that in its November 2002 letter OneBeacon may not have expressly characterized the July 2002 letter as a "disclaimer[]" of coverage. We note, however, that a header to the November 2002 letter denominates the letter as a "SUPPLEMENTAL DISCLAIMER OF COVERAGE/RESERVATION OF RIGHTS" (capitalization in original). We note, too, that in separate letters dated November 11, 1999 relating to the claims arising out of the Blydenburgh and Huntington landfills, OneBeacon informed Lauder that "[a]s soon as we have completed our investigation, we will notify you of our coverage determination." Because OneBeacon stated that it was "terminating its investigation" in its July 2002 letter, Lauder argues that the November 11, 1999 letters afford an additional reason to conclude that the July 2002 and November 2002 letters constitute disclaimers, i.e., the promised "coverage determination."

Footnote 5:OneBeacon does not argue that policies it issued during the period in question relieved its insureds of these duties. To the contrary, OneBeacon's expert asserted that if the alleged policy existed, it "would have required Estee Lauder to notify the insurer in writing of the particulars of an occurrence' as soon as practicable' and to immediately' forward any claims made or suits brought against the insured to the insurer." Moreover, as Lauder observes, even as OneBeacon asserted in the seventh affirmative defense of its answer that Lauder had not proven the existence and terms of the disputed policy, OneBeacon's fourth affirmative defense asserted that it was not liable to the extent Lauder had failed to perform conditions that may be contained in the alleged policy "including, but not limited to, the notice . . . requirements."

Footnote 6:The third cause of action alleges that OneBeacon breached its duty to defend Lauder in the Hickey's Carting action and claims that Lauder is entitled to recover all post-tender reasonable fees and expenses necessarily incurred in defense of that action, plus pre-judgment interest accruing from the date of OneBeacon's repudiation of its duty to defend. Although the third cause of action identifies that date as "October 2002," that date appears to reflect a typographical error as Lauder contends only that OneBeacon disclaimed coverage in its November 1, 2002 letter. We do not understand Lauder to be claiming that it is entitled to fees and expenses in excess of the applicable policy limits. The fourth cause of action claims that with respect to any future defense costs Lauder may incur in defense of the Blydenburgh landfill claim and the Hickey's Carting action, it is entitled to a declaration that such defense costs must be paid promptly by OneBeacon to the extent that they are reasonable and necessary. Again, we do not understand Lauder to be seeking the recovery of defense costs in excess of the applicable policy limits. The fourth cause of action also claims that Lauder is entitled to a declaration that any reasonable settlement of the Blydenburgh landfill claim and the Hickey's Carting action must be timely indemnified by OneBeason up to the applicable loss limits. However, Lauder does not mention this claim for indemnification in its briefs and thus we limit the declaration to the claim for defense costs. Finally, for reasons that are not explained by Lauder in its briefs, it did not move for summary judgment on its first and second causes of action, asserting breach of contract on account of OneBeacon's failure to provide a defense to and repudiation of its obligation to indemnify with respect to, respectively, the Huntington landfill and Blydenburgh landfill cases.

 

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