Coverage Pointers - Volume X, No. 21

4/08/09            Everett Cash Mutual Ins. Co. v. Taylor
Indiana Court of Appeals
Policy Exclusion Precluding Coverage for Injuries Properly Addressed Through the Workers’ Compensation System Clear and Unambiguous
Christopher Collis, an employee of Sherlock Contract Painting (“Sherlock”), an independent contractor hired by Rick and Katrina Taylor, was injured while painting a grain bin on the Taylor’s farm. Although required to do so pursuant to Indiana Code Section 22-3-2-14(b), the Taylor’s did not verify whether Sherlock had worker’s compensation insurance before hiring them for the job. Indiana Code Section 22-3-2-14(b) states that if a third party contractors with an injured worker’s employer for the performance of work exceeding one thousand dollars, the third party is subject to liability for workers’ compensation benefits to the same extent as the employer if the third party failed to obtain a certificate of compliance with the Workers’ Compensation Act and the injury resulted from an accident arising out of and in the course of the performance of the work covered by the contract. Collis filed a workers’ compensation claim against Sherlock. Upon learning that Sherlock had no workers’ compensation insurance, Collis amended his claim to name the Taylors as a party for failing to verify whether Sherlock had such insurance, pursuant to Indiana Code Section 22-3-2-14(b). Everett Cash Mutual Insurance Company (“Everett”), which had issued a farm personal liability policy to the Taylors, denied coverage for Collis’ claim against the Taylors based on a policy exclusion which precluded from coverage “bodily injury to a person … if benefits are payable or are required to be provided by an insured under a workers’ compensation … law.” The Taylors filed suit against Everett seeking recovery for, among other things, breach of contract claiming they indicated to their insurance agent that they wanted “all risk” coverage. Everett moved for summary judgment based on the worker’s compensation policy exclusion which the trial court denied. The Court of Appeals reversed. In so holding, the court determined, among other things, the policy’s exclusion clearly and unambiguously precluded coverage for injuries that are or should be addressed through the worker’s compensation system. The court noted the Taylors may not have been able to purchase worker’s compensation coverage, they could have ensured that Sherlock did. The court further found that the insureds’ belief that they had purchased “all risk” coverage could not, without more, be sufficient to negate all exclusions in an insurance policy.
Submitted by: Bruce D. Celebrezze & Erin J. Volkmar (Sedgwick, Detert, Moran & Arnold LLP)

DUQUIN – THE DUKE OF LEAD
Scott M. Duquin
[email protected]

Part VI – Coverage Triggers
This week we look at two aspects of insurance coverage in lead-based paint litigation.  First, we review New York law surrounding Health Department letters advising your insured that there are conditions conducive to lead poisoning at your insureds’ property, and if such is a trigger for them to put you on notice of a potential claim.  Second we look at triggers of coverage and if such leads to “stacking” of the policy limits.  Special thanks to Steven Peiper, who lends his insurance coverage expertise as a co-author.

Trigger of Insured to give notice:

Is the relatively standard requirement that the insured must give notice of a potential claim triggered when your insured receives a letter from the local county health department advising that there are conditions conducive to lead poisoning?  New York common law says no, and New York courts have held that receipt of a notice of condition conducive to lead poisoning from a county health department, standing alone, is insufficient to establish that the insured was put on notice of a potential claim under the policy. (Pub. Mut. Ins. Co. v AYFAS Realty Corp., 234 AD2d 226, 651 NYS2d 513 [1st Dept 1996]; Seals v Powell, 236 AD2d 700, 653 NYS2d 452 [3d Dept 1997]; Generali B U.S. Branch v Rothschild, 295 AD2d 236, 744 NYS2d 159 [1st Dept 2002]).

In 2004, the Second Department followed the precedent established by its colleagues in the First and Third Departments, respectively, when it again found that a question of fact regarding whether the insured was on notice upon receipt of the health department’s Notice of Lead Paint & Order of Abatement (Huertero v Blue Ridge Ins. Co., 13 AD3d 486, 787 NYS2d 89 [2d Dept 2004]).  In support of this conclusion, the Second Department noted that the Notice in question did not establish that the injuries were caused by the lead paint found at the subject premises.  Likewise, the court also pointed to the fact that the notice did not explicitly state that the lead-based paint found at the premises caused injury to the affected party. 

Frankly, we find this an odd standard.  It would seem to us that receipt of the Lead Abatement Notice, as you all know, comes with the understanding that someone that spends a significant amount of time has been found with an elevated lead level in his or her blood stream.  Thus, the insured knows (a) lead paint has been found at the premises (under most circumstances it is pin-pointed in the abatement notice) and (b) that someone who spends a significant amount of time there has been found with an elevated lead level.  These two items, taken together, should be enough to require the insured to place his or her carrier on notice.  Remember that most policies require notice where there is notice of an incident which may give rise to a claim.  Notice of the claim is not required to trigger initial notice.

Alas, however, New York Appellate Court’s have not been sympathetic to our position.  If you decide to invoke a late notice defense, one would be well advised to be certain that the insured not only knew of the existence of lead, but also knew of the existence of injury to a specific child at the insured location.  Without both please be forewarned that a late notice disclaimer will be a difficult road to travel.

Triggers of Coverage:

Traditionally, and as most people understand it, New York is an injury-in-fact jurisdiction.  This means that coverage is not triggered unless it can be established that the insured was injured during the policy period.  In a 2008 declaratory judgment action, the insurance company was relieved of any obligation to defend and indemnify (Fire & Casualty Ins. Co. v. Kelly, 50 AD3d 340 [1st Dept 2008]).  The insurance company issued its policy effective December 10.  The health department issued a letter on December 12 stating that the lead hazards at the property were corrected based upon an inspection it conducted in July.  Further, the testimony of infant plaintiff’s mother (in the main action) was that since the abatement the paint in the apartment was good.  Notwithstanding a blood test of January the next year that revealed a slightly elevated blood lead level in the infant plaintiff (in the main action), the court held there was no evidence of lead exposure during the effective policy dates, and as such the insurer was under no duty to defend or indemnify.

Further, the New York Court of Appeals' holding in Hilrado v. Allstate Ins. Co. (5 NY3d 508 [2005]) established that a carrier would not be held liable for multiple policy periods where it intended its exposure to be capped a sole policy limit.  In that decision, the Court of Appeals noted that a carrier should not have to worry that it would be potentially exposed to three times its policy limit (over three policy terms) because the injury was continuous over three policy periods.  In other words, where the carrier contracted to pay a limit of $300,000 per injury on a homeowner's policy, it should not be worried about exposure of $900,000 because the injury took place over three years. 

We note that the Court appeared to struggle with the reality that if the insured had three different policies, written by three different carriers, the insured would be entitled to the limits of all three policies.  However, fortunately following precedent and strong policy language, the Court of Appeals was not persuaded to extend a carrier’s risk exposure beyond that what was bargained for.  To date, the decision has gone unchallenged. 

However, although of little value as precedent because it is a summary order, the Second Circuit has ruled that “New York courts would read Allstate’s non-cummulation clause strongly and find that plainly limits [plaintiff’s] recovery to one policy limit” [Bahar v. Allstate Ins. Co., 159 Fed. Appx. 311, 2005 US App Lexis 27964 (2d Cir 2005)].  For sake of completeness, we note that Maryland’s high court found the triggering of multiple policy periods appropriate (Untied Services Automobile Assn. v. Riley, 393 Md. 55, 899 A2d 819 (2006)]. In Riley, the Maryland court discussed the Hiraldo decision at length.  However, the Riley Court noted that the policy’s non-cumulation clause was ambiguous, and as such refused to limit the carrier’s exposure (who had issued consecutive policies) to one policy term.  Significantly, the Riley decision follows a long line of Maryland cases which have permitted multiple policies to be triggered, and likewise involved the interpretation of policy language that differed from the language employed by Allstate in the Hilrado decision.  Moreover, the carrier in Riley was unable to support its intent with respect to the interpretation of the non-cumulation clause.

Just the same, if this issue should come up, the attentive claims professional would be well served to work closely with coverage counsel and underwriting to ensure that the carrier’s intent with regard to risk exposure is preserved.   

REPORTED DECISIONS

Malik v. Charter Oak Fire Insurance Company

Pena & Kahn, PLLC (Shayne, Dachs, Corker, Sauer & Dachs,
LLP, Mineola, N.Y. [Jonathan A. Dachs], of counsel), for appellant.
Feeney & Associates, PLLC, Hauppauge, N.Y. (Rosa M.
Feeney of counsel), for respondent.

DECISION & ORDER
In an action for a declaration that the defendant Charter Oak Fire Insurance Company and Travelers Insurance Company is obligated to defend and indemnify the plaintiff in an action entitled Rosenblatt v Malik, pending in the Supreme Court, Queens County under Index No. 9742/05, the defendant Lois M. Rosenblatt, Public Administrator of the goods, chattels and credits of Juan Manuel Chametla, deceased, appeals from an order of the Supreme Court, Nassau County (Parga, J.), dated March 13, 2008, which granted the motion of the defendant Charter Oak Fire Insurance Company and Travelers Insurance Company for summary judgment, in effect, declaring that it was not obligated to defend and indemnify the plaintiff in the underlying action.
ORDERED that the order is reversed, on the law, without costs or disbursements, and the motion of the defendant Charter Oak Fire Insurance Company and Travelers Insurance Company for summary judgment, in effect, declaring that it was not obligated to defend and indemnify the plaintiff in the underlying action is denied.
In this declaratory judgment action, the plaintiff, John R. Malik, Sr., sought defense and indemnification from the Charter Oak Fire Insurance Company, incorrectly sued herein as Charter Oak Fire Insurance Company and Travelers Insurance Company (hereinafter Charter Oak) in the wrongful death action brought against him by Lois M. Rosenblatt, Public Administrator of the goods, chattels, and credits of Juan Manuel Chametla (hereinafter the Public Administrator). 
The underlying action arose from the tragic, accidental shooting on October 18, 2004, of Juan Chametla, a young man working in a convenience store in Astoria, Queens, by Malik, a retired police detective. Malik was legally carrying a gun, as he was on his way to work as a security supervisor. He entered the store in which Chametla was working and while engaged in "horseplay" with Chametla, Malik took out his gun, which accidentally discharged, hitting Chametla in the leg. Chametla died from the wound.
It is uncontroverted that Malik did not notify Charter Oak, his home insurance carrier, when the incident occurred or soon thereafter. Malik contended that he was consumed with guilt and the criminal proceedings brought against him. He pleaded guilty on April 18, 2005, to manslaughter in the second degree for recklessly causing Chametla's death and was sentenced to one to three years in prison.
Soon after the shooting, Chametla's father retained counsel to initiate a civil action against Malik. Counsel wrote to Malik by letter dated November 2004 to advise him that a wrongful death claim existed and asked him to notify his carrier and advise counsel of the carrier's name, address, and policy number. It was then discovered that Chametla had fathered a son, then six years old, who resided in Mexico. Counsel for Chametla's estate continued to attempt to obtain Malik's insurance information by contacting Malik's attorney in the criminal action by letter, phone calls, and fax, all to no avail.
On April 29, 2005, 11 days after Malik's plea of guilty, the Public Administrator, on behalf of Chametla's estate, filed a summons and complaint alleging that Malik negligently, grossly negligently, recklessly, and carelessly caused Chametla's death. A courtesy copy of the complaint was sent to Malik's attorney in the criminal action on May 3, 2005, with a letter reiterating the demand for insurance information. No one notified the Public Administrator of the name and address of Malik's insurer; however, the summons and complaint in the Public Administrator's action were forwarded to Charter Oak on May 20, 2005, seven months after the occurrence.
Charter Oak contacted the Public Administrator's counsel for information about the claim on May 23, 2005, and counsel provided the Charter Oak representative with all the information at his disposal.
By letter dated June 3, 2005, Charter Oak notified its insured and the Public Administrator that it was disclaiming coverage due to the lateness of the notice to it.
Thereafter, Malik brought this action for a judgment declaring that Charter Oak is obligated to defend and indemnify him in the Public Administrator's wrongful death action. The complaint was amended to add the Public Administrator as a necessary party by stipulation of all the parties.
Charter Oak moved for summary judgment dismissing the amended complaint and both Malik and the Public Administrator submitted separate responses seeking denial of Charter Oak's motion. Malik argued that he was consumed with guilt and sorrow over the tragedy he caused and the trauma of the criminal proceedings that were being pursued such that the possible liability in a civil suit on the necessity of contacting his home insurance carrier never crossed his mind. Thus, he contended that the notice that he gave, after pleading guilty and being served with the summons and complaint, was reasonable under the circumstances.
A duty to give an insurer notice arises "when from the information available relative to the accident, an insured could glean a reasonable possibility of the policy's involvement" (Figueroa v Utica National, 16 AD3d 616, 616-617; see Paramount Ins. Co. v RosedaleGardens, 293 AD2d 235, 239-240). The Supreme Court, without reaching the Public Administrator's contention that it had a separate right to give notice, granted summary judgment to Charter Oak, finding that the plaintiff had not provided timely notice.
The Public Administrator contended that she had an independent right to give notice to Malik's carrier pursuant to Insurance Law § 3420(a)(3). Since the Public Administrator made diligent efforts to ascertain Malik's insurance information and was unable to ascertain the carrier's identity until after the action was instituted, the notice on behalf of Chametla's estate was provided as soon as was practicable and the motion should be denied.
The Public Administrator established that she contacted Malik within a short time after the incident, and demanded that he notify his insurance carrier of the claim, and requested his insurance information, which would have enabled the Public Administrator to notify the defendant itself pursuant to Insurance Law § 3420(a)(3). It was not until after Malik pleaded guilty to the criminal indictment and the wrongful death suit against him was commenced that Malik or someone on his behalf or on behalf of the Public Administrator sent the summons and complaint to Charter Oak, constituting the first notice of the claim provided to it by the insured or the claimant.
Under the particular circumstances of this case there are issues of fact as to the timeliness of the notice given to Charter Oaks so as to require the denial of Charter Oak's motion for summary judgment.
As this Court stated in Becker v Colonial Cooperative Insurance Company (24 AD3d 702):
"Insurance Law § 3420(a)(3), in effect, requires insurance companies to accept notice of claims from injured parties. As was made clear more than 40 years ago, [t]he statute having granted the injured person an independent right to give notice and to recover thereafter, he is not to be charged vicariously with the insured's delay' [Lauritano v American Fid.Fire Ins.Co., 3 AD2d 564, 568, affd 4 NY2d 1028]. The injured person's rights must be judged by the prospects for giving notice that were afforded him, not by those available to the insured. What is reasonably possible for the insured may not be reasonably possible for the person he has injured. The passage of time does not of itself make delay unreasonable' (id). When the injured party has pursued his rights with as much diligence as was reasonably possible' the statute shifts the risk of the insured's delay to the compensated risk-taker' (id). Thus, the pertinent inquiry is whether the plaintiff pursued his rights with as much diligence as was reasonably possible' (id).'
"In determining the reasonableness of an injured party's notice, the notice required is measured less rigidly than that required of the insureds (see GA Ins. Co. of N.Y. v Simmes, 270 AD2d 664). The sufficiency of notice by an injured party is governed not by mere passage of time but by means available for such notice' (Appel v Allstate Ins. Co., 20 AD3d 367, 369)" (24 AD3d at 704-705; see also Ringel v Blue Ridge Ins. Co., 293 AD2d 460).
Accordingly, the Supreme Court erred in granting the motion of Charter Oaks for summary judgment.
Morris v. Ilya Cab Corp.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Steven N. Feinman of counsel), for appellants.
Weiser & Associates, LLP, New York (Edward Spark of
counsel), for respondents.
Order, Supreme Court, New York County (Paul Wooten, J.), entered October 17, 2008, which denied defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to dismiss plaintiff Keith Morris's 90/180 day claim of serious injury, and otherwise affirmed, without costs.
Defendants established a prima facie case that plaintiffs did not suffer serious injuries within the meaning of Insurance Law § 5102(d). However, plaintiffs raised issues of fact (except as to the 90/180 day category) by submitting (a) the reports of their treating physicians providing objective test results to substantiate their subjective complaints of pain and explaining why plaintiffs' injuries were permanent and (b) MRI reports indicating disc herniation (Keith Morris) and bulging (Goddess Morris) and tears of the glenoid labrum (both plaintiffs) (see Newcomb v Leslie, 300 AD2d 92 [2002]; DaSilva v Storz, 290 AD2d 288 [2002]). One of the doctors' reports for Keith also explained his pre-existing condition.
The only evidence in the record that Keith had to quit his job as a result of the accident is his own testimony. This is insufficient (see e.g. Uddin v Cooper, 32 AD3d 270, 272 [2006], lv denied 8 NY3d 808 [2007]; Arrowood v Lowinger, 294 AD2d 315, 316-317 [2002]). The statement in the September 2006 report of Keith's treating physician that "[h]e is totally disabled and I have advised him to restrict his activities" is too general to support a 90/180 day claim (see Gorden v Tibulcio, 50 AD3d 460, 463 [2008]).
We note that Supreme Court has precluded Goddess from relying on the 90/180 day category of serious injury and that plaintiffs have not cross-appealed.
Nguyen v. Abdel-Hamed

Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for appellants.
Greenberg & Stein, P.C., New York (Ian Asch of counsel), for
respondent.
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered June 25, 2008, which, to the extent appealed from, denied defendants-appellants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion granted, and, upon a search of the record, the remaining defendants' motion for summary judgment granted as well. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint in its entirety.
Defendants made a prima facie showing that plaintiff suffered no permanent or significant limitation of use of her cervical, thoracic and lumbar spine, by submitting the affirmed medical report of a neurologist describing the tests he performed and setting forth the results supporting his finding that plaintiff had full range of motion in the spine and his conclusion that plaintiff was not disabled at the time of the examination and that there was no permanency or residual effect (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; see Taylor v Terrigno, 27 AD3d 316 [2006]). Plaintiff's chiropractor, while concluding, to the contrary, that plaintiff's injuries were permanent and significant, failed to set forth any objective basis for his findings, such as the tests he performed to measure plaintiff's range of motion (see Toure, supra; Harris v Ariel Transp. Corp., 55 AD3d 323 [2008]; Cartha v Quinn, 50 AD3d 530 [2008], lv to denied 11 NY3d 704 [2008]; Rodriguez v Abdallah, 51 AD3d 590, 591 [2008]).
Defendants also demonstrated that plaintiff suffered no "medically determined injury or impairment of a non-permanent nature" (Insurance Law § 5102[d]), by submitting plaintiff's deposition testimony that she was confined to home for two weeks and missed only two or three days of work following the accident (see Prestol v McKissock, 50 AD3d 600 [2008]). To the extent plaintiff's opposition affidavit differs with her testimony regarding her alleged impairment during the 90/180-day period, the affidavit appears to have been tailored to avoid the consequences of her earlier testimony and is insufficient to defeat summary judgment (see Amaya v Denihan Ownership Co., LLC, 30 AD3d 327 [2006]).
Upon a search of the record, the nonappealing defendants' motion is also granted (see Lopez v Simpson, 39 AD3d 420 [2007]).
McNeil v. New York City Transit Authority

Zaklukiewicz Puzo & Morrissey, LLP, Islip Terrace, N.Y.
(Stephen F. Zaklukiewicz of counsel), for appellants.
Lurie & Flatow, P.C., New York, N.Y. (Jay Flatow of
counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated February 5, 2008, as denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendants satisfied their burden of establishing, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff relied upon various medical records, as well as the affirmed medical report of Dr. John Murphy, who treated the plaintiff after her accident. The plaintiff's hospital records and EMG testing report from December 22, 2003, were unsworn and therefore without any probative value (see Sapienza v Ruggiero, 57 AD3d 643; Choi Ping Wong v Innocent, 54 AD3d 384), and portions of Dr. Murphy's affirmed medical report dated November 19, 2007, must similarly be disregarded because they recite unsworn findings of other doctors (see Sorto v Morales, 55 AD3d 718; Malave v Basikov, 45 AD3d 539; Furrs v Griffith, 43 AD3d 389; see also Friedman v U-Haul Truck Rental, 216 AD2d 266, 267). Nevertheless, Dr. Murphy found, on the basis of his physical examination of the plaintiff, that she had a decreased range of motion in her lumbar spine following the date of the accident and for four years thereafter. In response to the conclusory statement by the defendant's orthopedic expert that the plaintiff "[had] significant problems preceding the alleged incident," and the defendant's radiologist's determination that the plaintiff suffers from a chronic degenerative condition of the lumbar spine, Dr. Murphy opined, on the basis of his review of pre-accident and post-accident imaging, that the plaintiff's injuries were caused or, at least, aggravated by the accident. Thus, Dr. Murphy's conclusion that the plaintiff's injuries constitute a permanent consequential limitation of use of her lumbar spine was sufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injury under the significant limitation of use or the permanent consequential limitation of use category of Insurance Law § 5102(d) as a result of the subject accident (see Altreche v Gilmar Masonry Corp., 49 AD3d 479; Nigro v Kovac, 45 AD3d 547-548).
Magid v. Lincoln Services Corp.

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

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated July 1, 2008, which denied their motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.
The defendants met their prima facie burden of showing that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiffs failed to raise a triable issue of fact.
Initially, the records and reports of Hamilton Medical Diagnostics were without any probative value since they were not properly sworn or affirmed (see Grasso v Angerami, 79 NY2d 813; Luna v Mann, 58 AD3d 699; 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 respective affirmations of Laxmidhar Diwan and Emmanuel Hostin failed to raise a triable issue of fact since they clearly relied on the unsworn reports of others in coming to their conclusions (see Sorto v Morales, 55 AD3d 718; Malave v Basikov, 45 AD3d 539; Verette v Zia, 44 AD3d 747; Furrs v Griffith, 43 AD3d 389; see also Friedman v U-Haul Truck Rental, 216 AD2d 266, 267). While both Diwan and Hostin set forth findings that revealed the existence of significant limitations in each of the respective plaintiffs' range of motion, neither they nor the plaintiffs proffered competent admissible medical evidence that revealed the existence of significant limitations in the plaintiffs' ranges of motion that were contemporaneous with the subject accident (see Leeber v Ward, 55 AD3d 563; Ferraro v Ridge Car Serv., 49 AD3d 498; D'Onofrio v Floton, Inc., 45 AD3d 525).
The magnetic resonance imaging reports of Stephen Veigh failed to raise a triable issue of fact. The mere existence of a herniated or bulging disc, or even a tear in a tendon, is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration (see Washington v Mendoza, 57 AD3d 972; Cornelius v Cintas Corp., 50 AD3d 1085, 1087; Shvartsman v Vildman, 47 AD3d 700; Tobias v Chupenko, 41 AD3d 583; Mejia v De Rose, 35 AD3d 407; Yakubov v CG Trans. Corp., 30 AD3d 509; Cerisier v Thibiu, 29 AD3d 507; Bravo v Rehman, 28 AD3d 694; Kearse v New York City Tr. Auth., 16 AD3d 45; Diaz v Turner, 306 AD2d 241).
The plaintiffs failed to submit competent medical evidence that the injuries they allegedly sustained in the subject accident rendered them unable to perform substantially all of their usual and customary daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Rabolt v Park, 50 AD3d 995; Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Sainte-Aime v Ho, 274 AD2d 569).
Ly v. Holloway

Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y.
[Marshall D. Sweetbaum], of counsel), for appellant Angela Holloway.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York,
N.Y. (Holly E. Peck amd Stacy R. Seldin of counsel), for appellants
Osman A. Mohamedtamim and Tangiz  Hacking Corp.
Park & Nguyen, Bronx, N.Y. (John S. Park of counsel), for  respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Osman A. Mohamedtamim and Tangiz Hacking Corp. appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schneier, J.), dated March 28, 2008, as 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) insofar as asserted against them, and the defendant Angela Holloway separately appeals, as limited by her brief, from so much of the same order as denied her separate motion, in effect, for the same relief.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Osman A. Mohamedtamim and Tangiz Hacking Corp. for summary judgment dismissing the complaint insofar as asserted against them, and the separate motion of the defendant Angela Holloway, in effect, for the same relief, are granted.
The defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating, on the basis of the same submissions, 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.
The plaintiff relied on, inter alia, an affirmed report of an examining physician, who, based on a recent examination of the plaintiff, indicated that she had limited ranges of motion in her cervical and lumbar spines. It is evident that in arriving at his conclusions, the plaintiff's examining physician relied on records of the plaintiff's treating chiropractor, who performed contemporaneous examinations of the plaintiff, and indicated that he found limited ranges of motion in her cervical and lumbar spines. However, those records were not in proper evidentiary form (see Casas v Montero, 48 AD3d 728, 728-729). Moreover, the plaintiff's treating chiropractor failed to adequately quantify the restrictions he claimed to have found (see Sirma v Beach, 59 AD3d 611; Friscia v Mak Auto, Inc., 59 AD3d 492; Gochnour v Quaremba, 58 AD3d 680; Duke v Saurelis, 41 AD3d 770, 771).
The plaintiff also failed to set forth any competent medical evidence to establish that she sustained a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her ususal and customary daily activities for 90 of the 180 days following the subject accident (see Leeber v Ward, 55 AD3d 563, 564; Furrs v Griffith, 43 AD3d 389, 390). The plaintiff's own deposition testimony established that she missed, at most, several hours of work as a result of the subject accident.
Fung v. Uddin

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellants.
Kenneth M. Mollins, Melville, N.Y. (Peter Citrin of counsel), for
respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Mohammed Nasir Uddin and Ainos Taxi, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated June 30, 2008, as granted the plaintiff's motion for leave to reargue his opposition to 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), which had been determined in an order dated December 11, 2007, and upon reargument, denied their motion for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order dated June 30, 2008, is modified, on the law, by deleting the provision thereof which, upon reargument, denied the motion of the defendants Mohammed Nasir Uddin and Ainos Taxi, Inc., for summary judgment dismissing the complaint insofar as asserted against them, and substituting therefor a provision, upon reargument, adhering to the original determination in the order dated December 11, 2007, granting their motion for summary judgment dismissing the complaint insofar as asserted against them; as so modified, the order is affirmed insofar as appealed from, with costs to the appellants.
Contrary to the contention of the defendants Mohammed Nasir Uddin and Ainos Taxi, Inc. (hereinafter the appellants), the Supreme Court providently exercised its discretion in granting reargument (see Luna v Mann, 58 AD3d 699; E.W. Howell Co. Inc. v S.A.F. LaSala Corp., 36 AD3d 653, 654; Pimentel v Mesa, 28 AD3d 629). However, upon granting reargument, the Supreme Court erred in failing to adhere to its original determination granting the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.
The appellants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). In opposition to the appellants' showing in this regard, the plaintiff failed to raise a triable issue of fact as to whether he sustained a serious injury to his cervical or lumbar spine under the categories of Insurance Law § 5102(d) requiring a plaintiff to establish a "permanent consequential limitation of use of a body organ or member" or a "significant limitation of use of a body function or system." The plaintiff offered no competent medical evidence to demonstrate the existence of a significant range-of-motion limitation in his cervical or lumbar spine contemporaneous with the subject accident (see Garcia v Lopez, 59 AD3d 593; Luizzi-Schwenk v Singh, 58 AD3d 811; Leeber v Ward, 55 AD3d 563). The plaintiff's medical records from St. Vincent's Hospital and Apple Chiropractic, P.C., were not competent proof of a contemporaneous injury because they were neither affirmed nor sworn (see Pompey v Carney, 59 AD3d 416; Sapienza v Ruggiero, 57 AD3d 643; Choi Ping Wong v Innocent, 54 AD3d 384, 385). Furthermore, the affirmation of the plaintiff's former treating physician, Jeffrey Schwartz, was without probative value because he was no longer licensed to practice medicine at the time the affirmation was written (see CPLR 2106; Worthy v Good Samaritan Hosp. Med. Ctr., 50 AD3d 1023, 1024; McDermott v New York Hosp.-Cornell Med. Ctr., 42 AD3d 346).
The plaintiff also failed to submit competent medical evidence that the injuries he allegedly sustained in the subject accident rendered him unable to perform substantially all of his usual and customary daily activities for not less than 90 days of the first 180 days subsequent to the accident (see Garcia v Lopez, 59 AD3d 593; Roman v Fast Lane Car Serv., Inc., 46 AD3d 535, 536; Sainte-Aime v Ho, 274 AD2d 569).
Cantave v. Gelle

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

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Mustaffa Abu-Baker and Milan Cab Corp. appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Dorsa, J.), dated June 11, 2008, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendants Mustaffa Abu-Baker and Milan Cab Corp. for summary judgment dismissing the complaint insofar as asserted against them is granted.
The moving defendants submitted an affirmation of their examining physician stating that, based upon his examination of the plaintiff, it was his opinion that the plaintiff did not have any permanent injury, limitation, or restriction. The physician tested the ranges of motion of the plaintiff's cervical and lumbar spines, as well as his shoulders, and found that they were normal. In addition, the physician set forth the details of his measurements as well as the norms that he measured them against. This was sufficient to establish, prima facie, the moving defendants' entitlement to judgment as a matter of law (see Gaddy v Eyler, 79 NY2d 955; Luckey v Bauch, 17 AD3d 411; Sims v Megaris, 15 AD3d 468; Check v Gacevk, 14 AD3d 586).
In opposition, the plaintiff failed to raise a triable issue of fact. Although the plaintiff had seriously injured his back in a motor vehicle accident just two years prior to the instant accident, and he was out of work for two months following that prior accident, neither of the plaintiff's physicians indicated that they reviewed the medical records arising from that prior accident. Accordingly, their conclusions that the plaintiff's injuries and limitations were caused solely by the subject accident were highly speculative (see Moore v Sarwar, 29 AD3d 752; Tudisco v James, 28 AD3d 536; Bennett v Genas, 27 AD3d 601; Allyn v Hanley, 2 AD3d 470). In addition, the plaintiff testified at his deposition that he went back to work as a Field Technician for Verizon on the next business day after the accident, which had occurred on a weekend, and that he was not homebound or bedridden as a result of the accident, which demonstrated that his injuries did not prevent him from performing substantially all of the material acts constituting his usual and customary daily activities during at least 90 out of the first 180 days following the accident (see Geliga v Karibian, Inc., 56 AD3d 518; Sanchez v Williamsburg Volunteer of Hatzollah, Inc., 48 AD3d 664). The plaintiff's current complaints, as set forth in his affidavit, while suggestive of discomfort, do not suggest the inability to perform substantially all of his usual and customary daily activities (see Ingram v Doe, 296 AD2d 530; Berk v Lopez, 278 AD2d 156; Barbarulo v Allery, 271 AD2d 897; Taber v Skulicz, 265 AD2d 902).
Accordingly, the moving defendants' motion for summary judgment dismissing the complaint insofar as asserted against them should have been granted.
Tuberman v. Hall

Taubman Kimelman & Soroka, LLP, New York (Antonette M.
Milcetic of counsel), for appellant.
Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York
(Vanessa Corchia of counsel), for Andrea A. and Trevor A.
Hall, respondents.
Fiedelman & McGaw, Jericho (James K. O'Sullivan of
counsel), for Gregory Blackwell, respondent.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered December 10, 2007, which, to the extent appealed from, dismissed plaintiff-appellant Steven Tuberman's complaint, alleging "serious injury" under Insurance Law § 5102(d), unanimously affirmed, without costs.
The motion court properly dismissed plaintiff's complaint as against the Hall defendants. The Hall defendants satisfied their prima facie burden of establishing that plaintiff did not sustain a statutorily-defined serious injury under Insurance Law
§ 5102(d) (see Shinn v Catanzaro, 1 AD3d 195, 197 [2003]). The reports of the Hall defendants' expert orthopedist, Dr. Freeman, and expert neurologist, Dr. Schwartz, which showed that plaintiff had only minor limitations in the range of motion of his right knee, lumbar spine, and shoulders, established that plaintiff's injuries did not amount to a "significant" or "permanent" limitation of use of those body parts as a matter of law (see Licari v Elliott, 57 NY2d 230, 236 [1982]; see e.g. Santos v Taveras, 55 AD3d 405, 405 [2008]). Moreover, the reports of the Hall defendants' expert radiologist, Dr. Tantleff, stated that any abnormalities revealed by the MRIs of plaintiff's cervical spine, lumbar spine, and right knee were degenerative in nature and not caused by the subject accident.
In opposition to the motion, plaintiff failed to proffer quantitative or qualitative evidence in admissible form raising an issue of fact that he did sustain a "serious" injury (see Toure v Avis Rent A Car Sys., Inc., 98 NY2d 345, 350 [2002]). We have considered plaintiff's remaining contentions and find them unavailing.
New York Central Mut. Fire Ins. Co v. Bradfield

Calendar Date: February 10, 2009
Before: Peters, J.P., Rose, Lahtinen, Kane and Stein, JJ.

Eisenberg & Kirsch, Liberty (Jeffrey L. Kirsch of
counsel), for appellant.
Foulke Law Offices, Goshen (Evan M. Foulke of
counsel), for respondent.
MEMORANDUM AND ORDER

Stein, J.
Appeal from an order of the Supreme Court (Connolly, J.), entered June 30, 2008 in Ulster County, which denied petitioner's application pursuant to CPLR 7503 to stay arbitration between the parties.
In January 2006, respondent sustained injuries when the automobile in which she was a passenger was involved in a one-car accident. Respondent was covered under an insurance policy issued by petitioner to respondent's parents that included applicable supplemental uninsured/underinsured motorist (hereinafter SUM) coverage. Respondent settled her claim against the tortfeasor with petitioner's consent. At petitioner's request, respondent submitted to an independent medical examination in January 2007. However, respondent refused to appear for a second examination in both November 2007 and April 2008, claiming that petitioner was not entitled to multiple examinations. Respondent subsequently served a demand for arbitration, prompting petitioner to commence this proceeding seeking a stay of arbitration on the basis that respondent had violated a condition precedent to coverage. Supreme Court denied the application and this appeal ensued.
To obtain a permanent stay of arbitration, petitioner bore the heavy burden of showing "that it acted diligently in seeking to bring about [respondent's] co-operation; that the efforts employed by [petitioner] were reasonably calculated to obtain [respondent's] co-operation; and that the attitude of [respondent], after [her] co-operation was sought, was one of 'willful and avowed obstruction'" (Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 168-169 [1967], quoting Coleman v New Amsterdam Cas. Co., 247 NY 271, 276 [1928] [citations omitted]; see Matter of St. Paul Travelers Ins. Co. [Kreibich D'Angelo], 48 AD3d 1009, 1010 [2008]). Because we agree with Supreme Court's determination that petitioner failed to meet this burden, we affirm.
The SUM endorsement at issue here required respondent to "submit to physical examinations by physicians we select when and as often as we may reasonably require." When petitioner scheduled respondent's first medical examination in January 2007, respondent's attorney, Evan M. Foulke, advised petitioner's attorney that respondent's treatment was ongoing and suggested that the examination await the completion of treatment. Foulke further indicated that, if petitioner insisted upon an examination at that time, respondent would not participate in a second examination. According to Foulke, this refusal was, at all times, based on the incorrect belief that petitioner was not entitled to more than one examination.
Petitioner attempted to schedule a second examination in November 2007 and Foulke again refused consistent with his earlier position. Having heard nothing further, Foulke served a demand for arbitration by letter dated April 2, 2008. By letter faxed to Foulke on April 8, 2008, petitioner attempted to schedule another examination the following day at 9:00 A.M. Foulke replied by fax later that same day, objecting to the examination on the grounds that petitioner was not entitled to it and that notice of the examination (less than 24 hours) was unreasonable. Although petitioner attempted to fax another letter to Foulke offering to reschedule the examination to April 21, 2007, Foulke did not receive that letter due to an error in its transmission. Petitioner then moved by order to show cause for a stay of arbitration. Upon receipt of the order to show cause and supporting papers [FN1] on April 15, 2008, Foulke contacted petitioner's attorney and advised him that now being aware that the policy entitled petitioner to a second examination respondent was willing to submit to the examination, which had been rescheduled to April 21, 2008. However, petitioner's attorney declined the offer.
In our view, even assuming that petitioner acted diligently and employed reasonable efforts to secure respondent's cooperation, Supreme Court properly determined that petitioner failed to demonstrate that respondent's lack of cooperation rose to the level of willful and avowed obstruction (see Baust v Travelers Indem. Co., 13 AD3d 788, 790 [2004]; Ingarra v General Acc./PG Ins. Co. of N.Y., 273 AD2d 766, 767 [2000]). Although respondent's earlier refusals to submit to a second examination were unequivocal, there is no evidence that either she or her attorney was in possession of the policy and, therefore, aware of the provision permitting multiple examinations [FN2] . Furthermore, respondent did submit to one physical examination, answered questions under oath for three hours and provided petitioner with copies of medical records, as well as numerous authorizations for healthcare providers, employers and insurance companies. Once she was aware of her obligation to submit to a second physical examination, she immediately indicated her willingness to do so. Overall, there is ample evidence that respondent's attitude was one of cooperation and that her conduct was not an unreasonable attempt to obstruct discovery (see Baust v Travelers Indem. Co., 13 AD3d at 790). Therefore, Supreme Court properly denied petitioner's application to stay arbitration.
Peters, J.P., Rose, Lahtinen and Kane, JJ., concur.
ORDERED that the order is affirmed, with costs.
Footnotes

Footnote 1: Attached to the order to show cause were a copy of the policy which respondent's attorney asserts was provided to him for the first time and a copy of the April 8, 2008 letter attempting to reschedule respondent's examination to April 21, 2008.

Footnote 2: In our view, Foulke's assumption that petitioner was not entitled to such examinations and his failure to request a copy of the policy were no more unreasonable than petitioner's failure to offer a copy of the policy in the face of Foulke's obvious misunderstanding.

Nick's Brick Oven Pizza, Inc. v. Excelsior Insurance Company

Goldberg Segalla LLP, Buffalo, N.Y. (Kimberly E. Whistler and
Joanna M. Roberto of counsel), for appellants.
Peter C. Alexanderson, Brewster, N.Y., for plaintiff-respondent.
Spiegel, Brown, Fichera & CotÉ, LLP, Poughkeepsie, N.Y.
(Donald D. Brown, Jr., and Timothy
W. Kramer of counsel), for
intervenor-respondent.

DECISION & ORDER
In an action for a judgment declaring that the defendants are obligated to defend and indemnify Nick's Brick Oven Pizza, Inc., in an underlying action entitled Mendola v Schmidt, commenced in the Supreme Court, Dutchess County, under Index No. 2004/330, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Sproat, J.), dated March 20, 2008, as, upon renewal and reargument, adhered to its determinations in an order dated May 31, 2007, denying their motion for summary judgment declaring that they are not obligated to defend Nick's Brick Oven Pizza, Inc., in the underlying action and granting those branches of the separate cross motions of the plaintiff and the intervenor, Giuliana Mendola, which were for summary judgment declaring that they are so obligated, and granted those branches of the separate cross motions of the plaintiff and the intervenor, Giuliana Mendola, which were for summary judgment declaring that they are obligated to indemnify Nick's Brick Oven Pizza, Inc., in the underlying action.
ORDERED that the order dated March 20, 2008, is affirmed insofar as appealed from, with one bill of costs, and the matter is remitted to the Supreme Court, Dutchess County, for the entry of a judgment declaring that the defendants are obligated to defend and indemnify the plaintiff, Nick's Brick Oven Pizzza, Inc., in the underlying action. .
Giuliana Mendola allegedly sustained personal injuries when her vehicle was struck in the rear by a vehicle operated by Travis Schmidt. Mendola commenced an action (hereinafter the underlying action) against Schmidt and Nick's Brick Oven Pizza, Inc. (hereinafter Nick's Pizza), alleging that Schmidt negligently caused the collision in the course of delivering pizza on behalf of Nick's Pizza, and that Nick's Pizza was vicariously liable for Schmidt's negligence. Nick's Pizza timely notified its general liability insurance carriers (hereinafter the defendants) of the underlying action, but the defendants disclaimed coverage based on a policy clause that excluded coverage for bodily injury arising out of the use of any automobile owned or operated by an "insured." Nick's Pizza commenced this action for a judgment declaring that the defendants are obligated to defend and indemnify it in the underlying action. Mendola was granted leave to intervene in the instant action.
Under the relevant policy, "employees" of Nick's Pizza are "insureds," who consequently fall within the policy exclusion, while "temporary workers," who are not included under the definition of "employees" and, hence, not "insureds," are an exception to the exclusion. Thus, the tortious conduct of "temporary workers" is covered by the policy. A "temporary worker" is defined under the policy as "a person who is furnished to [Nick's Pizza] to substitute for a permanent employee' on leave or to meet seasonal or short-term workload conditions."
The Supreme Court properly determined that Nick's Pizza made a prima facie showing that Schmidt was a temporary worker as defined in the policy since he was hired to meet seasonal or short-term workload conditions during the busy summer months prior to his return to college or enlistment in the military in September. Thus, Nick's Pizza made a prima facie showing of entitlement to judgment as a matter of law. In response, the defendants failed to raise a triable issue of fact to rebut this showing (see Alvarez v Prospect Hosp., 68 NY2d 320).
The Supreme Court also correctly determined that the term "furnished," as set forth in the policy's definition of "temporary worker," was ambiguous, inasmuch as it was an open question as to whether Schmidt fell within the exclusion for "employees" or the exception to that exclusion for "temporary workers." Whether a provision in an insurance policy is ambiguous is a question of law for the court to determine (see NIACC, LLC v Greenwich Ins. Co., 51 AD3d 883). "The test for ambiguity is whether the language in the insurance contract is susceptible to two reasonable interpretations'" (id. at 884, quoting MDW Enters. v CNA Ins. Co., 4 AD3d 338, 340-341). "An exclusion from coverage must be specific and clear in order to be enforced,' and an ambiguity in an exclusionary clause must be construed most strongly against the insurer" (Catucci v Greenwich Ins. Co., 37 AD3d 513, 514 [internal citations omitted]; see Cali v Merrimack Mut. Fire Ins. Co., 43 AD3d 415, 417 [internal citations omitted]).
Here, the requirement that a temporary worker be "furnished" to the insured is susceptible to two reasonable interpretations: (1) any third party, including another employee, can refer a person to the insured to qualify that person as a temporary worker; or (2) only a recruitment and placement consultant, employment referral agency, or similar service can refer a person to the insured to qualify that person as a temporary worker. Hence, the term "furnished," as used in the policy, is ambiguous since the policy does not clearly define whether any third party, including another employee, can furnish a person to the insured in order for that person to qualify as a temporary worker or whether the third-party must be a recruitment and placement consultant, employment referral agency, or similar service in order for the referred individual to qualify as a temporary worker. The policy also does not clearly define whether an individual who is hired to meet seasonal or short-term workload conditions must also be "furnished" to the insured in order to qualify as a temporary worker, or whether only individuals hired to substitute for an employee on leave must be so "furnished." Here, Schmidt was hired pursuant to a referral from another employee of Nick's Pizza. The ambiguities in the policy must be construed in favor of Nick's Pizza (see Lee v State Farm Fire & Cas. Co., 32 AD3d 902).
Accordingly, since the defendants failed to satisfy their burden of establishing that the policy exclusion applies to Schmidt, the policy must be construed as to afford coverage, thereby requiring the defendants to both defend and indemnify Nick's Pizza in the underlying personal injury action.
Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Dutchess County, for the entry of a judgment declaring that the defendants are obligated to defend and indemnify Nick's Brick Oven Pizza, Inc., in the underlying action (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).
Cardona v. Martinez and MVAIC

Kornfeld, Rew, Newman & Simeone, Suffern (William S.
Badura of counsel), for appellant.
William Pager, Brooklyn, for Ricardo Cardona, respondent.
Picciano & Scahill, P.C., Westbury (Thomas R. Craven, Jr. of
counsel), for Olga M. Martinez, respondent.
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered December 17, 2007, which, in an action for personal injuries sustained when plaintiff pedestrian was struck by a motor vehicle that left the scene, denied the motion of defendant Motor Vehicle Accident Indemnification Corporation (MVAIC) to dismiss the complaint as against it, unanimously affirmed, without costs.
Despite the procedural irregularities cited by MVAIC, the court properly found that plaintiff was a "qualified person" under the Insurance Law. Insurance Law § 5218(b) provides that the court may permit an action against MVAIC upon satisfaction of certain enumerated conditions. Here, those conditions have effectively been demonstrated and there was no need for a hearing (see e.g. Milstein v Clark, 32 AD2d 935 [1969]). Plaintiff established that he cannot ascertain the identity of the owner or operator of the offending vehicle. MVAIC's argument that there has been no judicial determination that defendant Martinez was not involved in the accident does not warrant a different finding (see Steele v Motor Veh. Acc. Indem. Corp., 39 AD3d 78, 83 [2007], appeal dismissed 9 NY3d 989 [2007]).
Ferreira v. Mereda Realty Corp.

L'Abbate, Balkan, Colavita & Contini, L.L.P., Garden City
(Monte E. Sokol of counsel), for appellants.
Quirk and Bakalor, P.C., New York (Richard H. Bakalor of
counsel), for respondent.
Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered June 9, 2008, which denied appellants' motion for summary judgment declaring that respondent had an obligation to defend and indemnify them in the personal injury action and granted respondent's cross motion for summary judgment dismissing the third-party complaint and directed entry of judgment, unanimously affirmed, without costs.
Appellant insureds were required by the policy to notify the insurer "as soon as practicable of an occurrence' or offense which may result in a claim." Here, where they did not give notice for more than two months after first learning of the infant plaintiff's accident, it was their burden (see Great Canal Realty Corp. v Seneca Ins. Co., 5 NY3d 742, 743-44 [2005]) to establish that a reasonably prudent person, upon learning of the accident, would have a good faith, objective basis for believing that litigation would not be commenced (see Kambousi Rest. v Burlington Ins. Co., 58 AD3d 513 [2009]; Paramount Ins. Co. v Rosedale Gardens, 293 AD2d 235, 239 [2002]). It is not disputed that, on meeting with plaintiff mother no later than April 11, 2005, the insureds' property manager had seen burn scars on the infant plaintiff and been told that the infant had been in the hospital. At that point, the insureds could not have reasonably believed that there would be no litigation arising out of the accident (see e.g. Tower Ins. Co. of New York v Dyker Contr., 47 AD3d 522 [2008]; Rondale Bldg. Corp. v Nationwide Prop. and Cas. Ins. Co., 1 AD3d 584, 585-86 [2003]), and therefore have not shown any extenuating circumstances to justify their having delayed reporting the occurrence until late June 2005 (see Paramount Ins. Co., 293 AD2d at 242). We reject appellants' alternate argument that the policy was ambiguous, since appellants fail to show how the term "claim," as used in this policy, could be parsed in two different, equally  logical ways (see Schechter Assoc. v Major League Baseball Players Assn., 256 AD2d 97 [1998]; cf. Matter of Ancillary Receivership of Reliance Ins. Co., 55 AD3d 43 [2008], affd __ NY3d __ , 2009 NY Slip Op 1019).
Falkner v. Hand

Calendar Date: February 10, 2009
Before: Peters, J.P., Rose, Lahtinen, Kane and Stein, JJ.

John P. Kingsley, P.C., Catskill (John P. Kingsley of
counsel), for appellants-respondents in action No. 1 and
appellants in action No. 2.
Thuillez, Ford, Gold, Butler & Young, L.L.P., Albany
(William C. Firth of counsel), for respondent-appellant.
Flink & Smith, L.L.C., Latham (Jay A. Smith of
counsel), for April Tiano, respondent.
Burke, Scolamiero, Mortati & Hurd, L.L.P., Albany
(Jeffrey E. Hurd of counsel), for Rachel E. Falkner, respondent.
MEMORANDUM AND ORDER

Rose, J.
Cross appeals from an order of the Supreme Court (Lalor, J.), entered April 9, 2008 in Greene County, which granted motions by defendants Rachel E. Falkner and April Tiano for summary judgment dismissing the complaint against them and partially granted defendant Donald G. Hand's motion for summary judgment dismissing the complaint against him.
Plaintiff Betty Falkner (hereinafter plaintiff) and her husband, derivatively, commenced two separate actions to recover for the serious injuries she allegedly sustained in three motor vehicle accidents over a two-year period. The other drivers of the motor vehicles involved in the accidents defendants April Tiano (first accident), Donald G. Hand (second accident) and Rachel E. Falkner (third accident) separately moved for summary judgment on the grounds that plaintiff did not sustain a qualifying serious injury (see Insurance Law § 5102 [d]; § 5104 [a]). In response, plaintiff asserted that, as a result of each of these accidents, she suffered injuries to her spine which qualified as serious injuries in the significant limitation of use and 90/180-day categories. Supreme Court granted Tiano's and Falkner's motions in full, but only partially granted Hand's motion, finding a question of fact as to the 90/180-day category. Plaintiffs and Hand now appeal.
Defendants met their initial burden of establishing entitlement to judgment as a matter of law by presenting evidence that the condition of plaintiff's spine was the result of a preexisting degenerative disease rather than the motor vehicle accidents. Plaintiff's medical records and her own deposition testimony establish that she had a history of significant neck and lower back problems before the accidents. Also, after conducting an independent medical examination of plaintiff and reviewing her medical records, a neurologist concluded that she had degenerative changes in her cervical and lumbar spine that created "a long history of axial musculoskeletal pain that clearly predates the accidents." He opined that her current complaints are not attributable to any of the accidents.
"[W]ith [this] persuasive evidence that plaintiff's alleged pain and injuries were related to a preexisting condition, plaintiff[s] had the burden to come forward with evidence addressing defendant[s'] claimed lack of causation" (Pommells v Perez, 4 NY3d 566, 580 [2005]). They were required to offer objective medical evidence distinguishing plaintiff's preexisting condition from the injuries claimed to have been caused by each accident (see Wolff v Schweitzer, 56 AD3d 859, 862 [2008]; Coston v McGray, 49 AD3d 934, 935 [2008]; Dabiere v Yager, 297 AD2d 831, 832 [2002], lv denied 99 NY2d 503 [2002]).
Due to the failure of plaintiffs' experts to fully consider and distinguish plaintiff's condition prior to each accident from her condition after that accident, as well as plaintiffs' failure to submit objective medical evidence of an exacerbation caused by any of the accidents, Supreme Court properly granted summary judgment to Tiano and Falkner (see Pommells v Perez, 4 NY3d at 574-575, 580; Wolff v Schweitzer, 56 AD3d at 862; McNamara v Wood, 19 AD3d 921, 922-923 [2005]; Franchini v Palmieri, 307 AD2d 1056, 1057-1058 [2003], affd 1 NY3d 536 [2003]). Since this deficiency of evidence as to causation also precludes recovery under the 90/180-day category for injuries allegedly sustained in the second accident (see Daisernia v Thomas, 12 AD3d 998, 999 [2004]; Dabiere v Yager, 297 AD2d at 832-833; Monk v Dupuis, 287 AD2d 187, 191 [2001]; Blanchard v Wilcox, 283 AD2d 821, 824 [2001]), Hand's motion should have been granted in its entirety.
The Scotts Company, LLC v.  Pacific Employers Insurance Company

Siegal & Park, Mt. Laurel, NJ (Brian G. Fox of counsel), for
appellant.
Dorsey & Whitney, LLP, New York (Patrick J. Feeley of
counsel), for Employers Insurance of Wausau, respondent.
Kantor, Davidoff, Wolfe, Mandelker, Twomey & Gallanty,
P.C., New York (Michael E. Twomey of counsel), for Liberty
Mutual Insurance Company, respondent.
Howrey LLP, Los Angeles, CA (Keith A. Meyer of the
California Bar, admitted pro hac vice, of counsel), for The Scotts
Company, LLC, respondent.
Order, Supreme Court, New York County (Bernard J. Fried, J.), entered February 27, 2008, which, to the extent appealed from as limited by the briefs, denied third-party plaintiff's motion to amend its third-party complaint to seek relief enjoining its co-insurers from seeking contribution in this matter as to any claims in any proceeding in any jurisdiction, unanimously affirmed, with costs.
The court properly denied appellant's motion to amend the third-party complaint since the proposed amendment did not state a viable claim for relief. The amendment sought to enjoin appellant's co-insurers from proceeding against appellant for contribution based upon appellant's settlement agreement with the insured and upon General Obligations Law § 15-108. The court correctly found that the settlement agreement's express contemplation of contribution claims by the co-insurers was a waiver of § 15-108's protections (see Mitchell v New York Hosp., 61 NY2d 208, 213 [1984]). Moreover, § 15-108 applies only to joint tortfeasors, not to co-insurers (HRH Constr. Corp. v Commerical Underwriters Ins. Co., 11 AD3d 321, 323 [2004]).
Liberty Insurance Underwriters, Inc. v. Arch Insurance Company

Jaffe & Asher LLP, New York (Marshall T. Potashner of
counsel), for appellant.
Gallo Vitucci Klar LLP, New York (Yolanda L. Ayala of
counsel), for respondents.
Order and judgment (one paper), Supreme Court, New York County (Walter B. Tolub, J.), entered December 30, 2008, which, in a declaratory judgment action between insurers involving their respective obligations to defend and indemnify in an underlying action for personal injuries, upon the parties' respective motions for summary judgment, declared that plaintiff is obligated to defend and indemnify in the underlying action and is also obligated to reimburse defendants for the costs they incurred in defending the underlying action, unanimously modified, on the law, to declare that plaintiff is obligated to reimburse defendants for the costs defendants incurred in defending the underlying action after tendering the defense of the underlying action to plaintiff, and otherwise affirmed, without costs.
"The doctrine of estoppel precludes an insurance company from denying or disclaiming coverage where the proper defending party relied to its detriment on that coverage and was prejudiced by the delay of the insurance company in denying or disclaiming coverage based on the loss of the right to control its own defense" (Merchants Mut. Ins. Group v Travelers Ins. Co., 24 AD3d 1179, 1182 [2005] [internal quotation marks and brackets omitted]). We reject plaintiff's argument that this doctrine should be limited to coverage disputes between insurers and insureds, and not applied to coverage allocation disputes between insurers (see e.g. Fireman's Fund Ins. Co. v Zurich Am. Ins. Co., 37 AD3d 521 [2d Dept 2007]; Donato v City of New York, 156 AD2d 505, 507-508 [2d Dept 1989]). Lumbermens Mut. Ins. Co. v Lumber Mut. Ins. Co. (148 AD2d 328 [1st Dept 1989]), cited by plaintiff, is not to the contrary. Lumbermens merely held that failure by an insurer to reserve its rights under the circumstances of that case did not constitute an intentional relinquishment, or waiver, of the right to seek contribution from another insurer (id. at 330). It did not address the issue of whether an insurer may be estopped, by its unqualified assumption of the defense of an action, from seeking contribution from another insurer. No issues of fact exist as to whether defendants, in tendering the defense to plaintiff, lacked knowledge that plaintiff would ultimately claim to be only an excess insurer, or whether defendants lost control of the underlying defense and were otherwise prejudiced by plaintiff's assumption thereof for two years without reserving a right to disclaim coverage (see Federated Dept. Stores v Twin City Fire Ins. Co., 28 AD3d 32, 39 [2006]). Defendants, however, are not entitled to reimbursement of defense costs incurred before tendering the defense to plaintiff (see Bovis Lend Lease LMB, Inc. v Royal Surplus Lines Ins. Co., 27 AD2d 84, 94 [2005]), and we modify the declaration accordingly. We have considered plaintiffs' other arguments and find them unavailing.
Niles v. Lam Pakie Ho

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

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant Jacob Express Cab appeals from an order of the Supreme Court, Kings County (Schack, J.), dated June 6, 2008, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Jacob Express Cab for summary judgment dismissing the complaint insofar as asserted against it is granted.
The appellant met its prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a consequence of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY22d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact as to whether she sustained a serious injury to her left knee, cervical spine, or lumbar spine, under the "permanent consequential limitation of use" and/or the "significant limitation of use" categories of Insurance Law § 5102(d). The reports and records submitted by the plaintiff from AR Medical and Apex Chiropractic were without any probative value since they were unsworn or unaffirmed (see Grasso v Angerami, 79 NY2d 813; Luna v Mann, 58 AD3d 699; Uribe-Zapata v Capallan, 54 AD3d 936; Patterson v N.Y. Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; Pagano v Kingsbury, 182 AD2d 268).
The affirmed medical report of Dr. Harshad Bhatt did not raise a triable issue of fact as to whether the plaintiff sustained a serious injury to her left knee as a result of the subject accident. Dr. Bhatt examined the plaintiff on September 1, 2006, 1½ years after the subject accident. The plaintiff failed to proffer any admissible objective medical evidence revealing the existence of significant range-of-motion limitations in her left knee that were contemporaneous with the subject accident (see Washington v Mendoza, 57 AD3d 972; Leeber v Ward, 55 AD3d 563; Ferraro v Ridge Car Serv., 49 AD3d 498; D'Onofrio v Floton, Inc., 45 AD3d 525). Moreover, the plaintiff failed to proffer any objective medical evidence that showed that her left knee was the subject of a recent examination (see Diaz v Lopresti, 57 AD3d 832; Landicho v Rincon, 53 AD3d 568, 569; Cornelius v Cintas Corp., 50 AD3d 1085; YoungHwanPark v Orellana, 49 AD3d 721; Amato v Fast Repair Inc., 42 AD3d 477). While the magnetic resonance imaging (hereinafter MRI) report referable to the plaintiff's left knee dated May 16, 2005, revealed, inter alia, a tear of the medial and lateral menisci, the mere existence of a tear in a tendon is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration (see Washington v Mendoza, 57 AD3d 972; Cornelius v Cintas Corp., 50 AD3d at 1087; Shvartsman v Vildman, 47 AD3d 700; Tobias v Chupenko, 41 AD3d 583).
Likewise, the submissions of Dr. Aric Hausknecht were insufficient to raise a triable issue of fact. These submissions noted, among other things, range-of-motion findings with respect to the plaintiff's cervical and lumbar spine as of February 19, 2008. While Dr. Hausknecht noted the existence of recent significant limitations in the plaintiff's lumbar and cervical ranges of motion, neither he nor the plaintiff proffered admissible objective medical evidence revealing the existence of significant limitations in the plaintiff's cervical and lumbar spine that were contemporaneous with the subject accident (see Washington v Mendoza, 57 AD3d 972; Leeber v Ward, 55 AD3d 563; Ferraro v Ridge Car Serv., 49 AD3d 498; D'Onofrio v Floton, Inc., 45 AD3d 525).
The MRI reports of the plaintiff's cervical and lumbar spine merely revealed evidence that as of May 16, 2005, the plaintiff had disc herniations at C4-5 and C5-6, as well as disc bulges at C3-4 and L4-5. The mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration (see Luna v Mann, 58 AD3d 699; 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 affidavit of the plaintiff was insufficient to meet this requirement (see Luna v Mann, 58 AD3d 699).
Pamphile v. Bastien

Baker, McEvoy, Morrissey & Moskovits, P.C. (Feinman &
Grossbard, P.C., White Plains, N.Y. [Steven N. Feinman], of counsel), for
appellant.
Harmon, Linder, & Rogowsky (Mitchell Dranow, Mineola,
N.Y., of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated July 17, 2008, as denied his cross motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's cross motion for summary judgment dismissing the complaint is granted.
The defendant made a prima facie showing of his entitlement to judgment as a matter of law dismissing the complaint through the submission of the plaintiff's deposition testimony and the affirmed medical reports of his examining neurologist, orthopedist, and radiologist, which established 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; Johnson v Berger, 56 AD3d 725). In opposition, the plaintiff failed to raise a triable issue of fact. Although the plaintiff's two examining physicians asserted that they had found limitations in the ranges of motion of the plaintiff's lumbar spine and left knee upon their examinations over 2½ years after the accident, neither doctor reconciled these findings with those of the plaintiff's treating physician who reported finding a full range of motion in the left knee 2½ weeks after the accident, and did not note any limitations in the lumbar spine or left knee upon a follow-up examination 9 months after the accident (see Carrillo v DiPaola, 56 AD3d 712; Felix v Wildred, 54 AD3d 891; Magarin v Kropf, 24 AD3d 733). Moreover, none of the plaintiff's physicians addressed the finding of the defendant's radiologist that the magnetic resonance imaging studies of the plaintiff's lumbar spine and left knee revealed only degenerative conditions which were not causally related to the accident (see Levine v Deposits Only, Inc., 58 AD3d 697; Johnson v Berger, 56 AD3d 725; Ciordia v Luchian, 54 AD3d 708). Finally, there was no competent medical evidence to establish that the plaintiff had sustained a medically-determined injury of a nonpermanent nature which prevented him from his usual and customary activities for 90 days of the 180 days following the subject accident (see Sainte-Aime v Ho, 274 AD2d 569; Arshad v Gomer, 268 AD2d 450; DiNunzio v County of Suffolk, 256 AD2d 498, 499).
Kante v. Diarrassouba

Grover & Fensterstock, P.C., New York (Simon B. Landsberg
of counsel), for appellant-respondent.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for respondents-appellants.
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered September 14, 2007, which denied defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102(d) and denied plaintiff's cross motion for partial summary judgment on the issues of liability and "serious injury" and to strike defendants' affirmative defenses, unanimously modified, on the law, defendants' motion granted, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint.
Defendants established prima facie that plaintiff did not sustain a serious injury by submitting their experts' affirmations reporting normal ranges of motion in all tested areas, specifying the objective tests they performed to arrive at the measurements, and concluding that plaintiff's alleged injuries had resolved (see e.g. Ayala v Douglas, 57 AD3d 266 [2008]). Plaintiff's submissions in opposition to defendants' motion and in support of his cross motion for summary judgment were insufficient to raise an inference that he sustained a serious injury. While his experts reported range-of-motion limitations, specifying the objective tests they performed, their examinations were not contemporaneous with the accident and their findings are "too remote to raise an inference that the limitation was caused by the accident" (Santos v Taveras, 55 AD3d 405 [2008]).
Defendants also established prima facie that plaintiff did not sustain a 90/180-day injury by submitting plaintiff's testimony that he returned to work within the first 90 days following his accident (see e.g. Onishi v N & B Taxi, Inc., 51 AD3d 594 [2008]); plaintiff failed to submit competent medical evidence to show that he was prevented from performing his usual activities for not less than 90 of the first 180 days following the accident (see e.g. Szabo v XYZ, Two Way Radio Taxi Assn., 267 AD2d 134, 135-136 [1999]).
In light of this disposition, we do not reach the parties' remaining contentions.
M-1049 - Kante v Diarrassouba, et al.,
Motion seeking leave for costs and expenses and striking the cross appeal denied.

American Guarantee and Liability Insurance Company v Hoffmann

Hancock & Estabrook, LLP, Syracuse (Timothy P. Crisafulli of
counsel), for appellants.
Steinberg & Cavaliere, LLP, White Plains (Ronald W. Weiner
of counsel), for respondent.
Order, Supreme Court, New York County (Louis B. York, J.), entered February 27, 2008, which, to the extent appealed from as limited by the briefs, granted plaintiff's cross motion for summary judgment declaring no duty to defend or indemnify defendants, unanimously affirmed, with costs.
The policy at issue excludes from coverage any claims based "in whole or in part" on acts "in connection with" a trust of which defendants are beneficiaries. This is an enforceable exclusion (see American Guar. & Liab. Ins. Co. v Lerner, 58 AD3d 523 [2009]). Here, each claim in the underlying proceeding centered on the transfer of stock held by a trust for the petitioners therein to a trust created by defendants of which they were the sole trustees and beneficiaries. Because no claim fell outside the exclusion, there was no duty to defend or indemnify (Atlantic Mut. Ins. Co. v Terk Tech. Corp., 309 AD2d 22 [2003]). 
Structural Processing Corp. v The Hartford Steam Boiler Inspection and Ins. Co.

Appeal from an order of the District Court of Nassau County, First District (Anthony W. Paradiso, J.), entered March 18, 2008. The order, insofar as appealed from, granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

Order, insofar as appealed from, modified by vacating the provision granting defendant's motion for summary judgment dismissing the complaint and by providing that defendant's motion is denied; as so modified, affirmed without costs.
Plaintiff brought the present action seeking insurance coverage for losses totaling $49,414.18 that it incurred as a result of the breakdown of a natural-gas-fired co-generator system it owned and operated. Defendant, which had issued an equipment breakdown insurance policy to plaintiff, denied coverage and moved for summary judgment dismissing the complaint, on the ground that the breakdown, which was allegedly caused by a backfire in the generator's combustion system, was not a covered loss under the insurance policy for two reasons: first, because the breakdown did not constitute an "accident" within the policy's coverage; and second, because the policy specifically excluded coverage for loss, damage and expense "caused directly or indirectly" by "combustion explosion." In an affidavit submitted in support of defendant's motion for summary judgment dismissing the complaint, defendant's expert, engineer John Charles Vronay, stated, "A backfire' is the common term used to describe a combustion explosion that occurs outside the combustion chamber." Defendant claimed that the "backfire" that caused plaintiff's loss was thus a "combustion explosion" which fell within the policy's exclusions.
Plaintiff cross-moved for summary judgment. While conceding that the policy terms excluded loss from combustion explosion, plaintiff argued that the policy defendant had issued to it was, by its terms, designed for steam boiler systems, and that literal application of the policy exclusion would render the policy coverage "illusory" for plaintiff's natural-gas-fired co-generator system. In support of this argument, plaintiff referred in part to the deposition testimony of defendant's employee, Zakkiyah Shah, for the proposition that steam boilers operate by using one energy source within a firebox to heat water, and then obtain energy from the expansion of water as it forms steam. Thus, the only potential trigger for the policy exclusion for combustion explosion in a steam boiler would occur if something blew up inside the boiler's firebox. Plaintiff offered unrefuted evidence that, unlike the situation with a steam boiler, its natural-gas-fired co-generator involved herein consisted of a large 12-cylinder internal combustion engine, which employed combustion explosions in its ordinary operation. The affidavit of Howard E. Goodman, the owner and chief engineer of Rudox Engine and Equipment Company, which had built, maintained and repaired plaintiff's co-generator, was offered, in which he stated that "a backfire of the engine is not a regular combustion explosion, but rather a misfire caused by a prior failure within the engine, which may result in a failure of the engine or some of its parts. Many times a backfire occurs and there is no noticeable damage to the engine." It was plaintiff's contention that the prior failure within the engine was the cause of the accident, and that the policy did not exclude coverage for such a failure.
The District Court found that there had been a mechanical breakdown," which constituted a covered accident" under the policy, but concluded that the policy exclusion for loss, damage or expense resulting from a combustion explosion" was so specific and unambiguous as to preclude recovery by plaintiff. Summary judgment was accordingly awarded to defendant dismissing the complaint. Since neither party disputes the District Court's finding that the loss constituted mechanical breakdown" within the meaning of the general coverage of the policy, the only question before this court is whether the District Court erred in concluding that the loss was nevertheless barred under the policy's exclusions. We conclude that a question of fact exists as to the parties' intentions respecting the policy exclusions, which precludes summary judgment.
[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Where an exclusion to insurance coverage is claimed, the insurer bears the burden of establishing that the exclusion applies and that the exclusionary clause is not subject to any other reasonable interpretation. The burden is a heavy one, and if the language is doubtful or uncertain in its meaning, any ambiguity will be construed in favor of the insured and against the insurer" (Lee v State Farm Fire & Cas. Co., 32 AD3d 902, 903 [2006]; see also Junius Dev., Inc. v New York Mar. & Gen. Ins. Co., 48 AD3d 426, 427 [2008]). Exclusionary provisions are to be strictly and narrowly construed (see e.g. Lee, 32 AD3d at 903; see also 10A Couch on Insurance 3d § 150:14). Exclusions must be construed within the reasonable understanding of business persons (e.g. Belt Painting Corp. v TIG Ins. Co., 100 NY2d 377, 383 [2003]; Pepsico, Inc. v Winterthur Intl. Am. Ins. Co., 13 AD3d 599, 600 [2004], lv dismissed 4 NY3d 882 [2005]). Moreover, exclusions must be construed in favor of the insured if doing otherwise would render the coverage illusory (Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356, 361 [1974]). 
We conclude that the District Court erred in finding that defendant met its burden on its motion for summary judgment. The Exclusions" portion of the insurance policy upon which defendant relied states:
1.We will not pay for any excluded loss, damage or expense, caused directly or indirectly by any of the following, whether or not caused by or resulting from an accident.'
a.  Fire and Explosion
(1)Fire, including smoke from a fire.
(2)Combustion explosion. This includes, but is not limited to, a combustion explosion of any steam boiler or other fired vessel.
(3)Any other explosion, except as specifically provided in A.1.a.(3)."
Section A (1) (a) (3) of the coverage portion of the policy provides that covered accidents include, "Explosion, other than combustion explosion, of steam boilers, steam piping, steam engines or steam turbines."
The cause of the loss at issue has not been established with certainty. The "Definitions" section of the policy does not define explosion," combustion explosion," backfire," or misfire." The rule is clear that terms contained in an insurance policy are to be accorded their everyday, commonsense meanings (see Pepsico, Inc.,13 AD3d at 600). Where the evidence is disputed as to the meaning or applicability of terms of an insurance policy, the issue should be settled by reference to the intentions of the parties, which is a question of fact (see e.g. Pan Am. World Airways, 505 F2d at 1006; 10A Couch on Insurance 3d §§ 150:7, 150:21; see also Thomas J. Lipton, Inc., 34 NY2d at 361).Although the policy here excluded both direct and indirect damage from "combustion explosion" and any other explosions," except as otherwise provided, we conclude that it is unclear whether the parties intended by this language to exclude coverage for damages from the backfire" that is believed to have caused plaintiff's losses. In view of the foregoing, the District Court's order is modified by vacating the provision granting defendant's motion for summary judgment dismissing the complaint and by providing that defendant's motion is denied.
WESTERN BLDG RESTORATION CO., INC. v LOVELL SAFETY MGT. CO., LLC

Calendar Date: February 9, 2009
Before: Cardona, P.J., Mercure, Malone Jr., Kavanagh and McCarthy, JJ.

McNamee, Lochner, Titus & Williams, Albany (Scott
C. Paton of counsel), for appellant-respondent.
Couch White, L.L.P., Albany (Jeremy M. Smith of
counsel), for respondent-appellant.
MEMORANDUM AND ORDER

McCarthy, J.
Cross appeals from an order of the Supreme Court (Lynch, J.), entered September 2, 2008 in Albany County, which, among other things, partially denied defendant's motion for summary judgment.
Plaintiff, a wholly owned subsidiary of a Massachusetts corporation, is a construction company with an office in New York. In December 1989, it purchased a workers' compensation and employers' liability policy through the State Insurance Fund (hereinafter Fund) and four years later became a member of a safety group consisting of like construction companies (see 12 NYCRR 451.1, 451.2, 451.7). Defendant was that safety group's manager (see 12 NYCRR 451.5).
In early 2002, plaintiff began work on a project in Massachusetts. During the course of this project, plaintiff obtained, through defendant, a certificate of workers' compensation insurance. Plaintiff was named as the policyholder on the certificate and another New York company, the general contractor on the project, was named as the "certificate holder."[FN1] When defendant issued the certificate, it was not made aware that the project was located in Massachusetts.
According to plaintiff's office manager, during the fall of 2002, she contacted one of defendant's underwriters and inquired if employees hired from a Massachusetts trade union for the Massachusetts project were covered under the workers' compensation policy. According to the office manager, during their brief conversation, which she did not document in any substantive fashion, she was told that such employees were covered [FN2]. In December 2002, a renewal certificate of insurance was issued for the project. Like the first, this certificate also clearly states that plaintiff had workers' compensation insurance through the Fund with respect to all operations in New York.
In April 2003, a Massachusetts resident hired to work on the project was injured. Defendant refused to process his claim for workers' compensation coverage on the ground that plaintiff's workers' compensation policy did not cover out-of-state employees. Plaintiff then commenced this action against defendant alleging eight claims, including breach of contract, negligence, estoppel, negligent misrepresentation, fraud and a violation of General Business Law § 349. Defendant's motion for summary judgment dismissing all eight causes of action was partially denied by Supreme Court, prompting this appeal by defendant. Plaintiff cross-appeals, arguing that the court improperly dismissed its General Business Law § 349 claim. We agree with defendant's contention that the complaint should have been dismissed in its entirety.
First, plaintiff has not provided prima facie evidence of a contract between these parties sufficient to sustain the first cause of action (alleging breach of contract) or the second cause of action (alleging breach of implied covenant of good faith and fair dealing). With respect to the breach of contract claim, plaintiff alleges in the complaint that, "[i]n exchange for valuable consideration from [it]," defendant agreed to provide a certificate of insurance and/or insurance policy that would provide workers' compensation coverage for employees on the Massachusetts project (no other contract is alleged in the complaint and no contract is identified in plaintiff's response to defendant's interrogatories). To the extent that plaintiff is relying on either the certificate of insurance and/or insurance policy to support the first two causes of action, we find that neither of these documents gave rise to a contractual relationship between plaintiff and defendant. Fundamentally, the insurance policy, procured long before plaintiff became a member of defendant and renewed annually without defendant's input, is clearly a contract between plaintiff and the Fund only (see generally Matter of Covert, 97 NY2d 68, 76 [2001]; see also 1 Couch on Insurance 3d § 1:6; 68A NY Jur 2d, Insurance §§ 516, 582). A certificate of insurance is merely evidence of insurance here, for the sake of the "certificate holder" and is not itself a contract (see Bucon, Inc. v Pennsylvania Mfg. Assn. Ins. Co., 151 AD2d 207, 210 [1989]; Blue Cross of Northeastern N.Y. v Ayotte, 35 AD2d 258, 260 [1970]; see also 3 Couch on Insurance 3d § 40:30; 68A NY Jur 2d, Insurance § 683). In the absence of a contract between these parties, the first two causes of action should have been dismissed.
Turning to the negligence causes of action, the issue of duty is dispositive. To this end, we note that existence and scope of an alleged tortfeasor's duty is a decision for the court (see Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 585 [1994]). Here, plaintiff alleges in the complaint that defendant had a duty to provide it with a certificate of insurance and/or a policy providing workers' compensation coverage for its employees on the subject project (third cause of action) and a duty to inform that it never actually provided same (fourth cause of action). These duties are premised on the notion that defendant served in the capacity as plaintiff's insurance agent and/or broker.
We note, however, that the duties of defendant, as a safety group manager, are defined by regulation and nothing within the regulatory scheme assigns safety group managers with the responsibility of procuring workers' compensation coverage or providing advice or counsel with respect to the adequacy or limits of coverage (see 12 NYCRR 451.5 [c]). In short, the regulatory scheme does not remotely establish that safety group managers assume the role or are somehow akin to an insurance broker or agent.
In addition to the well-defined and circumscribed role of safety group managers outlined under the regulations, plaintiff failed to submit any proof establishing that defendant, in any event, went beyond these regulatory duties by assuming a role akin to that of insurance broker or agent. While plaintiff's corporate safety director opined that he considered defendant to be the equivalent of an "insurance broker," he pointed to no duty or task performed by defendant over the years to adequately establish that it actually served in this capacity. To the contrary, he testified that defendant provided guidance on claims management and safety issues (duties entirely consistent with those outlined under the regulation). Moreover, none of defendant's essential duties as described by plaintiff's office manager suggested an agent or broker relationship. In fact, according to the office manager, the alleged telephone conversation with defendant's underwriter concerning the scope of coverage on the subject policy was an anomaly, that is, it was the only such call that she ever placed in her over two decades of service with plaintiff.
In addition, the corporate safety director candidly acknowledged that defendant played no role in plaintiff's decision to secure the subject policy or to renew it annually. Rather, these decisions were made by plaintiff's parent company. Notably, annual renewal decisions were made by the parent company with the assistance of a Massachusetts insurance broker [FN3] . Because defendant did not serve in the capacity of plaintiff's insurance agent or broker (cf. Keyes v Northbrook Prop. & Cas. Ins. Co., 278 AD2d 736, 737 [2000]), it had no legally cognizable duty to provide plaintiff with workers' compensation coverage or to inform plaintiff about the adequacy or limits of such coverage. Moreover, the alleged misrepresentation in the sole telephone call about coverage does not create a duty where none otherwise existed and is thus insufficient to impose liability under these circumstances. Accordingly, the third and fourth causes of action sounding in negligence should have been dismissed.
Next, we find that the absence of an insurance agent/broker relationship between these parties completely negates a legally cognizable claim of reasonable and foreseeable reliance on the alleged misrepresentation that there was coverage such that defendants' fifth, sixth and seventh causes of action the negligent misrepresentation, estoppel and fraud claims should have been dismissed (see e.g. Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 19 AD3d 1056, 1058 [2005], affd 7 NY3d 152 [2006]; H & R Project Assoc. v City of Syracuse, 289 AD2d 967, 969 [2001]; Ambrosino v Exchange Ins. Co., 265 AD2d 627, 628 [1999]). In any event, the relationship between these parties safety group member and safety group manager also falls well short of the threshold required to be deemed a "special relationship" (Kimmell v Schaefer, 89 NY2d 257, 260 [1996]) for the purpose of establishing the negligence and negligent misrepresentation claims (see Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d 152, 158 [2006]; Murphy v Kuhn, 90 NY2d 266, 270-271 [1997]; Ambrosino v Exchange Ins. Co., 265 AD2d at 628; M & E Mfg. Co. v Frank H. Reis, Inc., 258 AD2d 9, 11 [1999]).
Furthermore, even assuming defendant acted as plaintiff's insurance agent and that defendant's underwriter misrepresented the scope of coverage, plaintiff's claims are defeated by the clear and unequivocal limits of the workers' compensation provisions of the policy to "workplaces in the State of New York" a limit of which, we note, plaintiff is conclusively presumed to have knowledge and to have assented (see Catskill Mtn. Mech., LLC v Marshall & Sterling Upstate, Inc., 51 AD3d 1182, 1184-1185 [2008]; Laconte v Bashwinger Ins. Agency, 305 AD2d 845, 846 [2003]; Catalanotto v Commerical Mut. Ins. Co., 285 AD2d 788, 790-791 [2001], lv denied 97 NY2d 604 [2001]; Ambrosino v Exchange Ins. Co., 265 AD2d at 628-629; M & E Mfg. Co. v Frank H. Reis, Inc., 258 AD2d at 12; Madhvani v Sheehan, 234 AD2d 652, 654-655 [1996])[FN4] . The four-page document states on page one, "THIS IS YOUR POLICY. PLEASE READ IT." Under the first section entitled "General Section," there is a paragraph denominated "Locations" which clearly states in its entirety that "[t]his policy covers all of your workplaces in the state of New York, except as excluded by endorsement" (emphasis added). Part One of the policy governs workers' compensation insurance and contains no exclusions. Part Two of the policy governs employers' liability insurance and does contain exclusions.[FN5]
Plaintiff argues that issues of fact regarding the interpretation of the policy have been raised because the phrase "regular New York employees" (see n 5, supra) is ambiguous and open to interpretation. To this end, plaintiff claims that it "reasonably interpreted the [p]olicy as covering workers . . . working on out of state projects." For a variety of reasons, these claims do not withstand close scrutiny and are thus insufficient to avoid dismissal of the action.
First and foremost, the subject policy is a workers' compensation and employers' liability contract (see generally Preserver Ins. Co. v Ryba, 10 NY3d 635 [2008]; Continental Ins. Co. v State of N.Y., 99 NY2d 196 [2002])[FN6] . The phrase "regular New York employees" is contained only within Part Two, governing employers' liability coverage (see Preserver Ins. Co. v Ryba, 10 NY3d at 643; compare Continental Ins. Co. v State of N.Y., 99 NY2d at 200-201). Significantly, this dispute centers on plaintiff's workers' compensation coverage, which was limited to "workplaces" in New York and provided coverage under the New York State Workers' Compensation Law only. Notably, plaintiff makes no claim that any aspect of Part One of the policy is unclear or ambiguous. Moreover, the project "workplace" here was clearly located outside of New York.[FN7]
Putting aside the legal nuance between these two sections of the policy, we next point out that plaintiff submitted no evidence in opposition to defendant's summary judgment motion that anyone within its employ, or the employ of its parent company, actually read the policy at any time before the subject incident and thus interpreted the phrase "regular New York employees" in the manner now espoused. To the contrary, plaintiff's corporate safety director since 1991 candidly acknowledged that he never saw or read the policy until after the subject accident. While he indeed believed that the subject policy covered out-of-state operations, his basis for this belief did not come from the policy language itself but rather from plaintiff's "history" of conducting out-of-state operations, obtaining certificates of insurance and paying payroll premiums without ever being advised that it did not have coverage in such instances. Thus, while plaintiff now claims that the phrase "regular New York employees" is ambiguous [*6]and open to interpretation,[FN8] the asserted ambiguity and now-espoused interpretation clearly did not guide its actions, or inactions, over the years.
Next, and again assuming that the employers' liability provision of the policy has some relevance here and further putting aside the fact that no one within plaintiff's employ could have been confused by language in a policy that was never read, we find the disputed phrase, when read in complete context, is not ambiguous here. The complete sentence provides that the "exclusion does not apply to bodily injury sustained by your regular New York employees while temporarily outside the state of New York" (emphasis added). Thus, this language unambiguously extends employers' liability coverage if two conditions exist, namely, that an injured worker is a "regular New York employee[]" and further that such employee is "temporarily" outside of New York. Plaintiff seemingly ignores this latter phrase in pursuing its argument that the policy language is ambiguous. Here, the record firmly establishes that the injured worker was a Massachusetts resident hired for this job "only" (i.e., no future employment with plaintiff was contemplated) and he had never previously worked for plaintiff. Thus, any alleged ambiguity in the excised phrase "regular New York employees" is sophistry here because it cannot reasonably be claimed that the subject worker here was injured while temporarily outside of New York.
Finally, as to plaintiff's cross appeal, we find that Supreme Court properly dismissed the General Business Law § 349 cause of action as plaintiff wholly failed to demonstrate that defendant's alleged deceptive business practices had a broad impact on consumers at large (see Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 24-25 [1995]).
Cardona, P.J., Mercure, Malone Jr. and Kavanagh, JJ., concur.
ORDERED that the order is modified, on the law, with costs to defendant, by reversing so much thereof as partially denied defendant's motion; motion granted in its entirety, summary judgment awarded to defendant and complaint dismissed; and, as so modified, affirmed.
Footnotes

Footnote 1:The certificate of insurance clearly states that plaintiff is insured with the Fund "COVERING THE ENTIRE OBLIGATION OF [PLAINTIFF] FOR WORKERS' COMPENSATION UNDER THE NEW YORK WORKERS' COMPENSATION LAW WITH RESPECT TO ALL OPERATIONS IN THE STATE OF NEWYORK, EXCEPT AS INDICATED BELOW" (emphasis added). No relevant exclusion was thereafter indicated.

Footnote 2:Defendant's underwriter denied ever having a conversation with plaintiff's office manager, or anyone else employed by plaintiff, in which he stated, in sum or substance, that the subject policy would provide coverage to non-New York employees who suffer injury outside of New York.

Footnote 3: Of note, this broker was aware that plaintiff conducted operations outside of New York.

Footnote 4: Significantly, it is undisputed that plaintiff neither contacted defendant's underwriter for clarification of coverage after reviewing its policy (cf. Keyes v Northbrook Prop. & Cas. Ins. Co., 278 AD2d at 736) nor made a specific request for coverage, factors found particularly relevant by this Court in granting summary judgment to agents in like scenarios (see Catskill Mtn. Mech., LLC v Marshall & Sterling Upstate, Inc., 51 AD3d at 1184-1185; M & E Mfg. Co. v Frank H. Reis, Inc., 258 AD2d at 11-12; Madhvani v Sheehan, 234 AD2d at 654).

Footnote 5: As relevant here, the employers' liability insurance portion of the policy has the following exclusion: "This insurance does not cover . . . bodily injury occurring outside the state of New York. This exclusion does not apply to bodily injury sustained by your regular New York employees while temporarily outside the state of New York."

Footnote 6: Employers' liability in the context of policies issued by the Fund has been defined by this Court as "liability for damages imposed on an employer by law, but excluding damages under the Workers' Compensation Law" (Oneida, Ltd. v Utica Mutual Ins. Co., 263 AD2d 825, 826 [1999]).

Footnote 7: Additionally, the injured employee never pursued a claim for workers' compensation coverage in New York or sought benefits under New York law; rather, he received coverage under the Massachusetts workers' compensation law. Nothing within the subject workers' compensation policy obligates the Fund itself to cover damages to plaintiff stemming from the award of these out-of-state benefits (see Safespan Platform Sys., Inc. v State Ins. Fund, 21 AD3d 1373 [2005], affg 20 Misc 3d 1117[A], 2004 NY Slip Op 51927[U] [2004]).

Footnote 8: According to plaintiff, because the injured Massachusetts worker faxed employment application documents to its New York office and was paid directly by plaintiff from its checking account, this worker "was probably a 'regular New York employee' within the meaning of the policy" (emphasis added).

Lancer Insurance Company v. Whitfield

Law Offices of Curtis, Vasile, P.C., Merrick, N.Y. (Patricia M.
D'Antone of counsel), for appellant.
Shaevitz & Shaevitz, Jamaica, N.Y. (Jonathan R. Vitarelli of
counsel), for respondents.


DECISION & ORDER
In an action for a judgment declaring that the plaintiff is not obligated to defend and indemnify the defendants Omar Whitfield, d/b/a Whitfield Auto Center, and Charles Whitfield in an underlying action entitled Johnson v Whitfield Auto, pending in the Supreme Court, Queens County, under Index No. 11628/06, the plaintiff appeals from an order of the Supreme Court, Nassau County (Feinman, J.), dated June 26, 2008, which denied its motion for summary judgment on the complaint.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the plaintiff is not obligated to defend or indemnify the defendants Omar Whitfield, d/b/a Whitfield Auto Center, and Charles Whitfield in the underlying action entitled Johnson v Whitfield Auto, pending in the Supreme Court, Queens County, under Index No. 11628/06.
The plaintiff insurer issued a garage dealer's policy of insurance (hereinafter the subject policy) to the defendant Omar Whitfield, d/b/a Whitfield Auto Center, an auto dealership. On May 31, 2004, at approximately 1:00 A.M., an automobile owned by the auto dealership was involved in an accident. At the time of the accident, the subject vehicle was being driven by the defendant Charles Whitfield (hereinafter the driver), Omar Whitfield's father. The defendants Kevin Johnson and Reginald Smalls (hereinafter the respondents) commenced an underlying personal injury action against, among others, the auto dealership and the driver (hereinafter collectively the Whitfield defendants) for personal injuries they allegedly sustained in the accident. The plaintiff commenced this action seeking a judgment declaring that it was not obligated to defend or indemnify the Whitfield defendants in the underlying personal injury action because the accident did not fall within the coverage provisions of the subject policy as the driver's use of the subject vehicle at the time of the accident was unrelated to "garage operations" as required by the policy.
The Whitfield defendants did not interpose an answer in the instant action, and by order of the Supreme Court, Nassau County (Feinman, J.), dated November 5, 2007, the court granted that branch of a prior motion of the plaintiff which was pursuant to CPLR 3215 for a default judgment against them. By defaulting, the Whitfield defendants admitted the allegations in the instant complaint and all reasonable inferences therefrom, to wit, that the driver had borrowed the subject vehicle "to visit friends in North Babylon, and was on his way home when the accident occurred" and that at the time of the accident, he "was not operating the [subject vehicle] in furtherance of the garage business" (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71; Matter of Gupta, 38 AD3d 445, 446; Lamm v Stevenson, 276 AD2d 531; Fleet Bank v Powerhouse Trading Corp., 267 AD2d 276, 277; see also Hermitage Ins. Co. v Trance Nite Club, Inc., 40 AD3d 1032; Silberstein v Presbyterian Hosp. in City of N.Y., 96 AD2d 1096). Based on the foregoing, the plaintiff established, prima facie, that the accident was not covered by the subject policy which requires it to pay damages for bodily injury caused by an accident and resulting from "garage operations" involving the ownership, maintenance or use of a covered auto (see Singh v Allcity Ins. Co., 1 AD3d 501; Empire Group Allcity Ins. Co. v Cicciaro, 240 AD2d 362, 363; Dumblewski v ITT Hartford Ins. Group, 213 AD2d 823).
Since the plaintiff, as movant, demonstrated its prima facie entitlement to summary judgment, the burden shifted to the respondents, as opponents of the motion, to provide evidence, in proper admissible form, sufficient to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562). The respondents failed to meet their burden since their opposing papers consisted solely of the affirmation of counsel in which hearsay statements of the Whitfield defendants were proffered to defeat the motion (see Zuckerman v City of New York, 49 NY2d 557, 562; Collins v Laro Serv. Sys. of N.Y., Inc., 36 AD3d 746, 746-747; Salzano v Korba, 296 AD2d 393, 395; Heifets v Lefkowitz, 271 AD2d 490, 491; cf. Municipal Testing Lab., Inc. v Brom, 38 AD3d 862; Mazzola v City of New York, 32 AD3d 906; Orelli v Showbiz Pizza Time, 302 AD2d 440, 441; Ritts v Teslenko, 276 AD2d 768, 769; Dan's Supreme Supermarkets v Redmont Realty Co., 261 AD2d 353, 354; Lukin v Bruce, 256 AD2d 388, 389; Gomes v Courtesy Bus Co., 251 AD2d 625, 626).
Accordingly, the Supreme Court should have granted the plaintiff's motion.
Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the appellant is not obligated to defend and indemnify the Whitfield defendants in the underlying action entitled Johnson v Whitfield Auto, pending in the Supreme Court, Queens County, under Index No. 11628/06 (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).
Kay Bee Builders, Inc. v. Merchant's Mutual Insurance Company

David K. Lieb, P.C., Center Moriches, N.Y. (Andrew M. Lieb of
counsel), for appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White
Plains, N.Y. (Nancy Quinn Koba of
counsel), for respondents.

DECISION & ORDER
In an action, inter alia, to recover damages for negligence in the procurement of insurance coverage, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Doyle, J.), dated December 18, 2007, which granted the motion of the defendants Thomas M. Kerr and the William Hentschel Agency, Inc., for summary judgment dismissing the complaint insofar as asserted against them, and (2) a judgment of the same court entered April 9, 2008, which, upon the order, dismissed the complaint insofar as asserted against those defendants.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed, with one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]). 
The plaintiff Kay Bee Builders, Inc., was hired to build a single-family home in Remsenberg, and subcontracted the roofing to the third-party defendant Maggio Construction, Inc. (hereinafter Maggio). When Maggio denied responsibility for problems with the roof after purportedly completing its work, the plaintiff repaired the faulty portion of the roof at an approximate cost of $140,000.
The plaintiff submitted a claim for the foregoing expense to the defendant insurers Merchant's Mutual Insurance Company and the Blue Ridge Insurance Company, and the defendant insurers denied the claim. The plaintiff commenced this action asserting a cause of action against each of the defendant insurers to recover damages for breach of contract, and causes of action against its insurance agency and agent, the respective defendants William G. Hentschel Agency, Inc., and Thomas M. Kerr (hereinafter together the Agents), to recover damages for negligence.
The Agents demonstrated their prima facie entitlement to summary judgment by presenting evidence that they obtained a general liability insurance policy which provided the specific insurance coverage that the plaintiff requested (see JKT Constr., Inc. v United States Liab. Ins. Group, 39 AD3d 594, 594-595; Fremont Realty, Inc. v P & N Iron Works, Inc., 39 AD3d 586, 587; Empire Indus. Corp. v Insurance Cos. of N. Am., 226 AD2d 580, 581). In opposition to the Agents' prima facie showing, the plaintiff failed to raise an issue of fact that required the denial of summary judgment (cf. Mid-Hudson Castle v P.J. Exteriors, 292 AD2d 355; Village of Newark v Pepco Contrs., 99 AD2d 661, affd 62 NY2d 772). The plaintiff also failed to establish that a special relationship existed with the Agents which would give rise to a claim for negligent misrepresentation (see Murphy v Kuhn, 90 NY2d 266, 270-271; Fremont Realty, Inc. v P & N Iron Works, Inc., 39 AD3d 586
New York City Housing Authority v. Underwriters at Lloyd's, London

Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Steven B.
Prystowsky and Joshua C. Zimring of counsel), for appellant.
Abrams, Gorelick, Friedman & Jacobson, P.C., New York,
N.Y. (Jessica F. Napoli of counsel), for
respondent.


DECISION & ORDER
In an action for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff and to reimburse the plaintiff for all reasonable attorney's fees and disbursements incurred in the defense of an underlying action entitled Piliotis v City of New York, pending in the Supreme Court, Kings County, under Index No. 20226/03, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruditzky, J.), dated May 1, 2007, which denied its motion for summary judgment on the complaint with leave to renew following the filing of a note of issue and statement of readiness.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff and to reimburse the plaintiff for all reasonable attorney's fees and disbursements incurred in the defense of the underlying action entitled Piliotis v City of New York, pending in the Supreme Court, Kings County, under Index No. 20226/03.
Contrary to the defendant's contention, the Supreme Court erred in denying the plaintiff's motion for summary judgment awarding it declaratory relief. The plaintiff made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that the defendant did not disclaim coverage on the ground of late notice until more than three months after the plaintiff sent notice of the claim to it, and 73 days after the plaintiff turned over the file in the underlying case to it, thereby failing to provide notice of its disclaimer "as soon as is reasonably possible" (Insurance Law § 3420[d]; see Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1029). In opposition, the defendant failed to raise a triable issue of fact by asserting that the delay was necessitated by its investigation of the claim, since the ground for the disclaimer was apparent, at the latest, when the defendant received the case file (see e.g. First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64, 69; Delphi Restoration Corp. v Sunshine Restoration Corp., 43 AD3d 851; Matter of Allstate Ins. Co. v Cruz, 30 AD3d 511; Gregorio v J.M. Dennis Constr. Co. Corp., 21 AD3d 1056; Pennsylvania Lumbermans Mut. Ins. Co. v D & Sons Constr. Corp., 18 AD3d 843; West 16th St. Tenants Corp. v Public Serv. Mut. Ins. Co., 290 AD2d 278). Moreover, the defendant did not establish the need for the investigation, nor did it provide detailed information demonstrating that the investigation was conducted diligently (see Quest Bldrs. Group, Inc. v Deco Interior Constr., Inc., 56 AD3d 744; Quincy Mut. Fire Ins. Co. v Uribe, 45 AD3d 661, 662; Matter of Temple Constr. Corp. v Sirius Am. Ins. Co., 40 AD3d 1109). Since any purported failure on the part of the plaintiff to provide the defendant with timely notice of the underlying claim did not excuse the defendant's unreasonable delay in disclaiming (see Schulman v Indian Harbor Ins. Co., 40 AD3d 957, 958; Matter of Blue Ridge Ins. Co. v Cook, 301 AD2d 598, 600; Wasserheit v New York Cent. Mut. Fire Ins. Co., 271 AD2d 439), the plaintiff is entitled to a declaration that the defendant is obligated to defend and indemnify it and to reimburse it for all reasonable attorney's fees and disbursements incurred in the defense of the underlying action.
Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Kings County, for the entry of an appropriate judgment in accordance herewith (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).
In the Matter of Travelers Insurance Company v. Cohen

Rivkin Radler, LLP, Uniondale, N.Y. (Alan C. Eagle and Joanne
M. Engeldrum of counsel), for appellant.
Jacobowitz & Gubits, LLP, Walden, N.Y. (Peter R. Eriksen,
Kara J. Cavallo, and Michael Mahon
of counsel) and The Law Offices of
James J. Cupero, PLLC, Goshen, N.Y.,
for respondent-respondent (one brief
filed).
Buratti, Kaplan, McCarthy & McCarthy, Yonkers, N.Y.
(Michael A. Zarkower of counsel), for
proposed additional respondent-respondent.

DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from a judgment of the Supreme Court, Orange County (Giacomo, J.), dated November 7, 2007, which denied the petition and dismissed the proceeding.
ORDERED that the judgment is reversed, on the law, with costs to the petitioner payable by the respondent Pearl Cohen and the proposed additional respondent Progressive Northeastern Insurance Company, the petition is granted, and the arbitration is permanently stayed.
Pearl Cohen allegedly was injured on December 23, 2005, when she was forced to jump out of the way of a car driven by Wayne Salvaty. Cohen made no attempt to contact either her insurance carrier, the appellant Travelers Insurance Company (hereinafter Travelers), or Salvaty's insurance carrier, the proposed additional respondent Progressive Northeastern Insurance Company (hereinafter Progressive), prior to contacting an attorney in September 2006. On October 3, 2006, Cohen gave notice to Travelers of a potential supplemental underinsured/uninsured motorist (hereinafter SUM) claim. On October 30, 2006, Travelers issued a letter to Cohen disclaiming coverage for her SUM claim on the basis that she had failed to give Travelers notice of the claim "as soon as practicable," as required by her policy.
On December 6, 2006, Progressive issued a letter to Salvaty disclaiming coverage for the accident on the basis of late notice of the claim. On January 2, 2007, Cohen forwarded a copy of Progressive's disclaimer letter to Travelers and notified Travelers of her intention to pursue a SUM claim. Cohen subsequently served Travelers with a request for arbitration, and Travelers instituted this proceeding, inter alia, to permanently stay the arbitration. The Supreme Court denied the petition. We reverse.
The Court of Appeals has held that the phrase "as soon as practicable," as used in the SUM context, means that the "insured must give notice with reasonable promptness after the insured knew or reasonably should have known that the tortfeasor was underinsured" (Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487, 495; see Matter of Assurance Co. of Am. v Delgrosso, 38 AD3d 649, 650). The insured bears "[the] burden of demonstrating that [he or she] acted with due diligence in ascertaining the insurance status of the other vehicle" (Matter of Nationwide Mut. Ins. Co. v Wexler, 276 AD2d 490, 491; see Matter of Nationwide Ins. Co. v Montopoli, 262 AD2d 647, 647; Matter of State Farm Mut. Auto. Ins. Co. v Adams, 259 AD2d 551, 552). Here, Cohen failed to establish that she exercised any diligence whatsoever in attempting to ascertain the insurance status of Salvaty's vehicle from the date of the accident on December 23, 2005, until she contacted an attorney in September 2006. Under the circumstances presented, the notice was untimely and the arbitration should have been permanently stayed (see Matter of Nationwide Ins. Co. v Montopoli, 262 AD2d at 647; Matter of State Farm Mut. Auto. Ins. Co. v Adams, 259 AD2d at 552; cf. Matter of State Farm Mut. Auto. Ins. Co. v Linero, 13 AD3d 546, 548).
Contrary to Cohen's contention, under the circumstances presented here, Travelers was not required to demonstrate prejudice (see Matter of Assurance Co. of Am. v Delgrosso, 38 AD3d at 650; see also Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468).
In light of our determination, the parties' remaining contentions have been rendered academic.