Dear Coverage Pointers Subscribers:

Our heartiest congratulations to our partner and firm President Ann Evanko who takes the reigns as Managing Partner at Hurwitz & Fine, PC today.  She follows in the footsteps of founding partner Bob Fine who held that position for a mere 32 years. We are so very fortunate to have Bob continue as an active and vibrant participant in our corporate department.  Ann will provide superb firm leadership.  Most importantly, Ann and Bob both read Coverage Pointers which assures their status as lawyers complete.

Happy May Day (whichever one you celebrate - more on that later).  This week's issue brings you an April 30th decision from the Court of Appeals throwing dirt on the earth movement exclusion.  You will also find the usual and eclectic array of other interesting appellate insurance decisions, including two discussing an insured's obligation to investigate accidents and notify carriers (lest they lost coverage due to late notice)

Upcoming Educational Program: May 8th: NYS Bar Association Program on Additional Insured Issues in Buffalo
On Friday, May 8th I will be Kathy Fijal and I will be speaking and the program moderator here in Buffalo on Additional Insured issues.  Kathy will be presenting on the topic: Priority of Coverage and the Additional Insured and I will be speaking on Late Notice issues.  Contact me for additional information and I can steer you to registration information..

Best Claims Training Available Anywhere:  FDCC Litigation Management College & Graduate Program
The Federation of Defense & Corporate Counsel's annual Litigation Management College and Graduate Program will be held from June 14-18 at Emory University in Atlanta.  The programs are the FDCC's effort to give back to the insurance industry and corporations involved in the defense of civil litigation by providing intensive claims training which simply cannot be found anywhere else.  Brochures highlighting the two incredible programs are attached and information, photographs of the Emory Conference Center and online registration can be found at the FDCC website, www.thefederation.org.  

Some highlights about the programs:

  • The faculty will consist of some of the top defense trial and coverage lawyers in the country and senior insurance industry claims executives, who volunteer his or her time to come to Atlanta to teach and work closely with the students during this multi-day intensive experience.  You would be hard-pressed to find this much talent offering their skills and experience elsewhere.
  • Top jury consultants will provide their insights and also work on a one-on-one basis with the students to hone their skills at testifying.
  • Dr. Audrey Nelson, an internationally recognized consultant and seminar leader, with expertise in communication, interpersonal skills, and conflict management, will teach our students how to improve their abilities in these critical areas as part of their claims handling duties.
  • John Patrick Dolan, a world renowned legal scholar and expert in negotiation, will spend a full day with the College students, teaching hands-on negotiation tools and tactics.

It is very difficult, if not impossible, in today's times to conduct intensive training programs in-house.  The College and Graduate Program fills that need.  If there was ever a time when insurance companies and corporations need to make sure that their claims are being handled by the most skilled professionals, it is now.

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

Earl's Pearls
Earl Cantwell's article talks about the beauty and strategy behind effective cross-examinations.

May Day Celebrations
If you are a Druid, you know most of this, so there is no reason to read on.  Druids know May 1 was the second most important holiday of the year.  It is when the festival of Beltane is held. It was thought that the day divides the year into half. The other half was to be ended with the Samhain on November 1. Those days the May Day custom was the setting of new fire. It was one of those ancient New Year rites performed throughout the world. And the fire itself was thought to lend life to the springtime sun. Cattle were driven through the fire to purify them. Men, with their sweethearts, passed through the smoke to seek good luck.

The word Beltane derives directly from the Old Irish Beltain ("bright fire") which later evolved into the modern Irish Bealtaine (pr. 'byol-tana').

Then the Romans then occupied the British Isles. The Romans feasted in the beginning of May and in celebration of the worship of Flora, the goddess of flowers. It was in her honor a five day celebration, called the Floralia was held. The five day festival would start on April 28 and end on May 2. The Romans brought in the rituals of the Floralia festival in the British Isles.

By the Middle Ages every English village had its Maypole. The bringing in of the Maypole from the woods was a great occasion and was accompanied by much rejoicing and merrymaking.

The Puritans frowned on May Day, so the day has never been celebrated with as much enthusiasm in the United States as in Great Britain. But the tradition of celebrating May Day by dancing and singing around a maypole, tied with colorful streamers or ribbons, survived as a part of the English tradition. The kids celebrated the day by moving back and forth around the pole with the streamers, the choosing of a May queen, and the hanging of May baskets on the doorknobs of folks -- are all the leftovers of the old European traditions.

Since May 1st is the Feast of St Philip & St James, they became the patron saints of workers.

May 1st is also International Workers Day, commemorating, in part, the 1886 Haymarket Riots.  In October 1884, a convention held by the Federation of Organized Trades and Labor Unions unanimously set May 1, 1886, as the date by which the eight-hour work day would become standard.  On May 1, 1886 rallies and strikes were held around the country by and in support of laborers.  The largest of these, in Chicago, led to the infamous riots on May 4 of that year, with several police and laborers killed (or executed) following a bomb blast.

From Steve Peiper (on Property and Potpourri):

Only property this week friends.  It looked bleak until the Court of Appeals gave us all something to fret over this morning.  In Pioneer Tower Owners Assoc. v State Farm Fire & Cas. Co., the Court of Appeals has issued a very limiting interpretation of the earth movement exclusion found in almost every policy providing first party property coverage.  As you will see below, denying coverage on the basis of earth movement or settling is now on very unfirm ground now. Although under the specifics of this case, the carrier appears to have a solid subrogation claim, the impacts of this decision could extend far beyond. 

Steve
[email protected]  

One Hundred Years Ago Today:
May 1, 1909
New York Times, Page 2, Column 3
FIFTEEN LABOR BILLS PASSED,
One Prohibits Employment of Women in Dangerous Occupations.



ALBANY, NY- In a statement today to the several organizations attached to the Workingman's State Federation, Thomas D. Fitzgerald, its legislative agent, gives a resume of the legislation affecting labor interests during the session of the Legislature just closed.  He said that fifteen labor bills were passed, four of which have been signed and eleven are awaiting the Governor's approval.

The Federation favored the following bills which were passed: Establishing a commission to inquire into the necessity for employers' liability legislation and proposed remedies for lack of employment; limiting the commissions  of theatrical employment agencies; regulating the pressure and hours of labor for compressed-air workers in caissons and tunnels; prohibiting the employment of women and minors in certain dangerous occupations; equal pay for equal work in the schools of New York; granting annual vacations, with pay, to per-diem employees of Greater New York; enforcing fire escapes on tenement and other buildings, authorizing the Commissioner of Labor, to inspect business and mercantile establishments in the same manner as factories, for the purpose of more fully enforcing the child-labor law.

Editor's Note: New York's Governor, at the time, was Charles Evans Hughes, who later served twice on the US Supreme Court, being first appointed by President Taft, and then, after leaving the bench to run, unsuccessfully, against Woodrow Wilson for President, as Chief Justice appointed by President Hoover.

This Week's Headlines:

KOHANE'S COVERAGE CORNER

Dan D. Kohane
[email protected]

  • Where Insurance Conducts Active Investigation to Determine Whether Late Notice is Excusable, a Delay in Disclaiming is Excused
  • Failure to Demonstrate that 62-Day Delay in Disclaimer was Related to Completion of Investigation Proves Fatal to Disclaimer
  • Coverage Not Extended to Vehicle for Which Premium Never Assessed
    Where Insurer has Notice of Accident from No Fault Filing, it Must Demonstrate Prejudice to Deny on Late Notice of SUM Filing
  • Village is One for Two in Establishing Coverage for Suit by Property Owner Relating to Demolished Building
  • The Shortest Statute of Limitations - 20 Days to File Application to Stay Uninsured Motorist Arbitration - Claims Another Victim
  • No Excuse for Failure to Give Notice

 

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

Margo M. Lagueras
[email protected]

  • Radiologist's Review of MRI Films is Sufficient
  • Range-Of-Motion Assessment Made 2 Years After Accident For Purposes Of Litigation Is Insufficient To Raise Triable Issue Of Fact
  • Thumb Injury May be Permanent, but Not Necessarily Serious
  • The Complaint Withstands Attack Where Allegations of Degenerative Processes are Specifically Addressed and Rebutted
  • Causation is Not Shown if MRIs Show Disc Degeneration and Plaintiff's Expert Fails to Address Such Evidence
  • The Importance of Addressing Each Claim in a Plaintiff's Bill of Particulars
  • Conclusion that Restrictions are "Self-Restrictions" Must be Substantiated with Objective Medical Evidence
  • Unsupported Assertion that Significant Range-Of-Motion Limitations are "Voluntary" is Insufficient
  • Shoulder Tear is Not Evidence of Serious Injury Absent Evidence Of Extent and Duration of Limitations
  • Battle of the Affirmations
  • Plaintiff's Attorney's Assertions that Defendant's Radiologist's Findings are Unfounded is Insufficient to Resist Summary Judgment
  • A Knee Fracture is an Independent Category of Serious Injury, But . . .
  • Affirmation Based on Contemporaneous and Recent Range-of-Motion Testing Defeats Summary Judgment.

 

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

  • Make Sure Your Chiropractor's Report is in Admissible Form!
  • Insurer Should Indicate if Plaintiff's Excuse was Considered
  • Omission of Information on Denial Does Not Render it Defective
  • I Swear I Have Not Been to Brooklyn, Well Not in 30 Years.

 

 PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper
[email protected]

  • High Court EXTREMELY Limits the Earth Movement and Settling/Cracking Exclusions: Exclusion Relied Upon by Carrier Inapplicable = Coverage for Insured 

 

All the best and keep that great feedback pouring in.

Dan 

Hurwitz & Fine, P.C. is a full-service law firm
providing legal services throughout the State of
New York
NEWSLETTER EDITOR
Dan D. Kohane
[email protected]

INSURANCE COVERAGE TEAM
Dan D. Kohane, Team Leader
[email protected]
Michael F. Perley
Katherine A. Fijal
Audrey A. Seeley
Steven E. Peiper
Margo M. Lagueras

FIRE, FIRST-PARTY AND SUBROGATION TEAM
Andrea Schillaci, Team Leader
[email protected]
Jody E. Briandi
Steven E. Peiper

NO-FAULT/UM/SUM TEAM
Audrey A. Seeley, Team Leader

[email protected]
Tasha Dandridge-Richburg
Margo M. Lagueras

APPELLATE TEAM
Jody E. Briandi, Team Leader

[email protected]
Scott M. Duquin

Index to Special Columns

Kohane’s Coverage Corner
Margo’s Musings on “Serious Injury”
Audrey’s Angles on No Fault
Peiper on Property and Potpourri
Earl’s Pearls

Across Borders

KOHANE’S COVERAGE CORNER

Dan D. Kohane
[email protected]

4/24/09 In the Matter of GMAC Ins. Co. v. Jones
Appellate Division, Fourth Department
Where Insurer Conducts Active Investigation to Determine Whether Late Notice is Excusable, a Delay in Disclaiming is Excused
GMAC Insurance commenced a proceeding for a permanent stay of uninsured motorist (UM) arbitration. Jones was injured on 7/3/06 when his car collided with one owned by Willoughby. Jones had UM coverage of $25K and Nova insured Willoughby. Nova learned of the accident on 1/8/08 when it received a letter from Jones’ attorney. Nova reserved its rights to deny coverage based on late notice and failure to cooperate and then tried to contact Willoughby to find out what he knew and when he knew it. Nova tried hard to find Willoughby, with mail, personal visits, letters to relatives, etc. Finally, on February 21, 2008, Nova disclaimed coverage for lack of cooperation. Jones then filed a claim for UM benefits claiming that the disclaimer caused the Willoughby vehicle to be uninsured.

Nova’s earnest investigation was well documented. Accordingly, the 44 days it took to disclaim was reasonable. A delay in notifying the insured of a disclaimer may be excused when the insurer conducts an investigation into issues affecting its decision whether to disclaim coverage.
Editor’s Note: It was not the “reservation of rights” that led to Nova’s success in this matter, it was the well-documented and active investigation of the late notice. Remember those three little words: Document. Document. Document. Compare to the next case!
4/24/ 09 Crocodile Bar, Inc. v. Dryden Mutual Insurance Company
Appellate Division, Fourth Department
Failure to Demonstrate that 62-Day Delay in Disclaimer was Related to Completion of Investigation Proves Fatal to Disclaimer
The insured bar was sued in three personal injury actions. Dryden denied coverage. The disclaimers were challenged on their timeliness. Here, Dryden’s claims adjusters were aware on the day they received the clam that the notice was late. They failed to establish that its 62-day delay was "reasonably related to the completion of a necessary, thorough, and diligent investigation." Disclaimer invalidated.

4/24/09 LM Property and Casualty Co., Inc v. Evans
Appellate Division, Fourth Department
Coverage Not Extended to Vehicle for Which Premium Never Assessed
Evans was killed in an auto accident when his car – a 1999 Chevrolet Blazer – collided with one operated by Graber. Graber was insured by USAA and also listed as a “licensed operator” on a policy issued by LM’s predecessor, Prudential, to his mother and step-father. The Prudential policy identified two policies, a 2000 Pontiac and a 2001 Chevrolet pickup truck and under a section of the policy, entitled "If You Injure Others or Damage Their Property," coverage was extended to "all cars for which a premium charge for this coverage is shown on the Declarations Page."

The court concluded that the Prudential policy did not extend coverage for his use of the Blazer. The fact that he was a licensed operator under that policy did not extend the policy’s coverage to a vehicle for which a premium was not assessed.

4/24/09 Bhatt v. Nationwide Mutual Ins. Co.
Appellate Division, Fourth Department
Where Insurer has Notice of Accident from No Fault Filing, it Must Demonstrate Prejudice to Deny on Late Notice of SUM Filing
This one seems to be an easy one under Rekemeyer. Insured gave prompt notice of No Fault claim and then delayed in giving notice of underinsured claim (SUM). Court recited holding by Court of Appeals in Reckemeyer: "[W]here an insured previously gives timely notice of the accident, the carrier must establish that it is prejudiced by a late notice of SUM claim before it may properly disclaim coverage.

4/24/09 Village of Springville v. Reynolds
Appellate Division, Fourth Department
Village is One for Two in Establishing Coverage for Suit by Property Owner Relating to Demolished Building

The Village was sued by a homeowner whose home it demolished after a fire. The lawsuit claimed property damage and civil rights violations (taking property without just compensation). Both the governmental D&O carrier and the CGL carrier were asked to provide coverage and both denied, leaving the Village uninsured. The lower court ruled that both carriers had defense obligations. The Fourth Department held that the D&O carrier was obliged to defend and provided the Village with coverage. However, the decision by Village to knock down the property was intentional, and not an accident and therefore the CGL carrier received a pass. The Village had argued that while the decision was intentional, it was undertaken to prevent further injury or damage to others.

4/21/09 In the Matter of Hermitage Insurance Company v. Escobar
Appellate Division, First Department
The Shortest Statute of Limitations – 20 Days to File Application to Stay Uninsured Motorist Arbitration – Claims Another Victim
Editor’s Note:
If you understand this headline, there is no need to read the remainder of this case review. If you don’t, or if you need a broad-stoke refresher, this one’s for you.
This case provides our semi-regular reminder to our readers of the shortest and most often missed statute of limitations – twenty (20) days to bring an application to stay an uninsured motorist (UM) arbitration. Let’s take a moment to review the statute and the rules so that the counseling point is in context.

A claimant files a demand for UM arbitration alleging, for example, that the other vehicle in the accident was stolen, or that she was the victim of a hit-and-run motorist, or that the insurer for the other vehicle had denied coverage or that the other car’s policy had been canceled. Your company is handling the UM claim and believes that the other vehicle, in fact, had coverage or can be identified, or the cancellation was improper or there was no “contact” in the hit-and-run accident (a requirement for a UM claim in that circumstance).

In other words, you claim that the claimant is not entitled, as a matter of law, to UM benefits because the other vehicle is not uninsured.

If THAT is your claim, please understand that the arbitrator has no power to rule on these issues, the arbitrability of the claim. The only remedy for a company that believes that the UM arbitration should not go forward because the claimant is not really uninsured is to bring an application in New York State Supreme Court (our trial level court), in accordance with CPLR Article 75, to permanently stay the arbitration. That application must be made within 20 days of the demand being made. Failure to bring that special proceeding within 20 days will mean the insurer loses its right to bring that application and raise those issues. We would note that there are some limited exceptions to this rule (for example, if your defense is that your company did not issue a policy) but the rule is critically important to remember.
4/21/09 Anglero v. The George Units, LLC
Appellate Division, First Department
No Excuse for Failure to Give Notice
The insureds' one-year delay in notifying its liability carrier is inexcusable when the injured party fell on a wet floor in the insured’s premises, the plaintiff was taken away by ambulance, the insured’s superintendent knew of the accident the day it occurred and later saw the plaintiff using a cane. Under the circumstances, there are no triable issues as to whether the insureds' delay in giving notice was reasonably founded upon a good-faith belief of nonliability.

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

Margo M. Lagueras
[email protected]

4/30/09 DeJesus v. Paulino
Appellate Division, First Department
Radiologist’s Review of MRI Films is Sufficient
Defendants’ examining neurologist and orthopedic surgeon performed range-of-motion tests to plaintiffs’ cervical and lumbar spines and plaintiff DeJesus’ knee, and concluded that both Martinez and DeJesus had full range-of-motion without restrictions and that there was no permanency of any of the claimed injuries. Each expert reviewed plaintiffs’ bills of particulars but did not review their MRI or other medical records. Defendants’ radiologist reviewed Martinez’s MRI films and found pre-existing degenerative disease in his lumbar region and no recent or post-traumatic changes in his cervical spine.

In opposition, plaintiffs submitted the affirmation of the physician who examined them 4 days after the accident and again 4 years later and found, on both occasions, limitations in the range-of-motion tests he performed on their cervical and lumbar spines. Plaintiffs also submitted MRI reports showing herniated and bulging discs.

On appeal, the IAS court was reversed and the complaint was dismissed against the appealing and non-appealing defendants. The court found that defendants’ experts’ reports were sufficiently detailed to show full range-of-motion and that it was sufficient that the radiologist reviewed the MRI films. Plaintiffs, on the other hand, failed to raise a triable issue of fact because they submitted unsworn records and reports with no probative value, insufficient objective medical records to support their 90/180-day claims, insufficient medical submissions to address the degenerative disease findings, and no competent medical evidence of the extent or duration of the bulging or herniated discs. In addition, plaintiffs’ experts’ affirmations did not address the findings of defendants’ experts.
Note: Remember that a plaintiff’s failure to meet the threshold for serious injury against one defendant necessarily means he or she cannot meet it as to any other defendants.

4/28/09 Christian v. Waite
Appellate Division, First Department
Range-Of-Motion Assessment Made 2 Years After Accident For Purposes Of Litigation Is Insufficient To Raise Triable Issue Of Fact
Despite a positive MRI report, defendants’ neurologist concluded, based on objective tests with range-of-motion calculation, that plaintiff had normal range-of-motion of the cervical and lumbar spines. Plaintiff’s range-of-motion submission was made 2 years after the accident by a physician who, at that time, examined plaintiff for the first time, apparently specifically for the litigation. However, there were no contemporaneous reports, or explanations for their omission. Therefore, the submission was insufficient.

4/23/09 Licygiewicz v. Stearns
Appellate Division, Third Department
Thumb Injury May be Permanent, but Not Necessarily Serious
Right-handed plaintiff’s left thumb was dislocated and required surgical reduction. However, her own surgeon concluded that, after recovery from the surgery, there was only minimal limitation of flexion and she had regained full functional use of her left hand. Therefore, even if permanent, the limitation did not constitute a consequential or significant limitation of use. Defendant also submitted color photographs and medical records which defeated plaintiff’s claim of significant disfigurement, as well as plaintiff’s own deposition testimony which established she missed less than a week of school and had full use of her left hand within 2 months. These facts defeated her claim under the 90/180-day category.

4/21/09 Pearson v. Guapisaca
Appellate Division, Second Department
The Complaint Withstands Attack Where Allegations of Degenerative Processes are Specifically Addressed and Refuted
The affirmed submissions of plaintiff’s orthopedic surgeon, based on both contemporaneous and recent examinations, and his review of MRI reports showing a tear in the supraspinatus tendon and bulging and herniated discs, opined that plaintiff’s right shoulder and cervical injuries were permanent and causally related to the accident. He specifically addressed and concluded that plaintiff’s injuries were not due to degenerative processes as asserted by defendant’s experts. This was sufficient to raise a triable issue of fact and withstand defendant’s motion on appeal.

4/21/09 Mack v. Valfort
Appellate Division, Second Department
Causation is Not Shown if MRIs Show Disc Degeneration and Plaintiff’s Expert Fails to Address Such Evidence
Here, plaintiffs are reversed on appeal due to their physician’s failure to compare range-of-motion findings to the norm or to quantify them. In addition, causation was not shown because the radiological evidence that the MRI studies were negative for disc herniations and bulges, but rather showed long-standing degeneration and desiccation, was not even addressed by plaintiffs’ expert.

4/21/09 Delayhaye v. Caledonia Limo & Car Serv., Inc.
Appellate Division, Second Department
The Importance of Addressing Each Claim in a Plaintiff’s Bill of Particulars
Here the defendants do not and are reversed on appeal. First, defendants relied, in part, on the report of plaintiff’s physician, who noted significant range-of-motion limitations in plaintiff’s lumbar and cervical spines. They also submitted affirmed reports from their own experts, who similarly noted significant limitations. Then, defendants also failed to even address plaintiff’s claim under the 90/180-day category, and set forth in his bill of particulars, that he was out of work for 3 months following the accident. Defendants’ experts, who examined plaintiff, did so more than 2 ½ years after the accident and did not relate their findings to this category for the time immediately after the accident. Furthermore, other claims set forth in the bill of particulars were not addressed at all.

4/21/09 Cuevas v. Compote Cab Corp.
Appellate Division, Second Department
Conclusion that Restrictions are “Self-Restrictions” Must be Substantiated with Objective Medical Evidence
Here it is defendants’ neurologist attempting to explain away his own findings of signification range-of-motion restrictions by merely stating they are “self-restricted.” Without objective medical evidence, the assertion of self-restriction is not substantiated.

4/21/09 Colon v. Chu
Appellate Division, Second Department
Unsupported Assertion that Significant Range-Of-Motion Limitations are “Voluntary” is Insufficient
Defendant relied on the affirmed report of an orthopedic surgeon who examined the plaintiff more than 5 ½ years after the accident and reported significant range-of-motion limitations of the lumbar spine. He then stated, without more, that the limitations were “voluntary.” Such a conclusory observation cannot refute the findings.

4/21/09 Byrd v. J.R.R. Limo
Appellate Division, Second Department
Shoulder Tear is Not Evidence of Serious Injury Absent Evidence Of Extent and Duration of Limitations
Plaintiff had a tear in her right shoulder which was repaired by arthroscopic surgery a year after the accident. Defendants submitted evidence consisting of affirmations of their examining physicians and plaintiff’s own deposition testimony, all to the effect that plaintiff did not sustain a permanent injury, limitation or restriction. Even plaintiff’s treating physician noted full range-of-motion in the shoulder within weeks after the accident and her surgeon noted full range-of-motion within six months after surgery. Accordingly, the court determined that, absent objective evidence of the extent and duration of the alleged limitations, the mere existence of a shoulder tear is not evidence of a serious injury.

4/21/09 Bush v. Robbins
Appellate Division, Second Department
Battle of the Affirmations
In this battle of affirmations, plaintiff appeals and loses again. Her physician’s affirmation simply did not raise an issue of fact in opposition to that of defendants’ orthopedist.

4/21/09 Liriano v. Ostrich Cab Corp.
Appellate Division, First Department
Plaintiffs’ Medical Experts Raise Issues of Fact Sufficient To Avoid Dismissal Of Claims Under The Permanent Or Significant Categories
Plaintiffs’ 90/180-day claims are dismissed on appeal because defendants established that plaintiffs did not miss work, nor were they unable to perform their usual and customary daily activities. However, plaintiffs’ claims under the permanent or significant limitation of use categories withstand dismissal because their experts and chiropractor raised issues of fact regarding defendants’ assertion that the injuries were degenerative.

4/21/09 Nickolson v. Albishara
Appellate Division, First Department
Plaintiff’s Attorney’s Assertions that Defendant’s Radiologist’s Findings are Unfounded is Insufficient oo Resist Summary Judgment
Plaintiff’s radiologist did not address defendants’ radiologist’s findings of a preexisting degenerative condition so plaintiff failed to raise an issue of fact as to causation. His attorney’s assertions that defendants’ radiologist’s findings were unfounded were worthless because the attorney did not review medical records or MRI films or examine the plaintiff.

4/21/09 Glover v. Capres Contracting Corp.
Appellate Division, First Department
A Knee Fracture is an Independent Category of Serious Injury, But . . .
Plaintiff’s bill of particulars alleged a knee fracture. Defendants’ orthopedic expert conducted range-of-motion tests comparing them to the norm, as well as numerous objective tests, all of which gave negative results, establishing that plaintiff did not sustain a significant or permanent consequential limitation and that the injury was resolved. In opposition, plaintiff’s chiropractor only discussed spinal limitations which were never alleged in plaintiff’s bill of particulars. In addition, plaintiff’s argument that defendants failed to address the evidence of a patellar facture fails because the only evidence of such a fracture was an unsworn X-ray report dated 7 months after the accident and that report referred only to a finding consistent with a “healing patellar fracture.”. All the contemporaneous reports were equivocal and called for confirmation by way of clinical examination. Result: Defendants win a unanimous reversal.

4/14/09 James Garrison Hudkins v. 81st St. Parking, LLC
Appellate Division, Second Department
Affirmation Based on Contemporaneous and Recent Range-of-Motion Testing Defeats Summary Judgment
Nothing new but worth reiterating: Plaintiff’s submission of treating doctors’ affirmations, which are based both on contemporaneous and recent testing, will be sufficient to raise a triable issue of fact and defeat a motion for summary judgment.

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

4/22/09 Jeff Mollins, DC a/a/o Peggy Winns v. State Farm Gen. Ins. Co.
Appellate Term, First Department
Make Sure Your Chiropractor’s Report Is In Admissible Form!
The insurer’s submission of an unsworn chiropractor’s report in support of its defense of lack of medical necessity was not in admissible form to properly oppose plaintiff’s motion for summary judgment. Accordingly, the report could not be considered.

4/20/09 Bronx Expert Radiology a/a/o Manuel Castillo v. Clarendon Nat’l Ins. Co.
Appellate Term, First Department
Insurer Should Indicate if Plaintiff’s Excuse was Considered
The insurer denied plaintiff’s claim for medical expenses based upon violation of the 45 day rule. The plaintiff presented evidence that it had difficulty complying with the 45 day rule as it either could not timely ascertain the insurer’s identity or inadvertently submitted the claim to the wrong insurer. The court held that the insurer in this instance must indicate whether the insurer provided any consideration for the plaintiff’s purported excuse to providing late submission of its claim. The insurer failed to do this resulting in the denial of the defendant’s motion.

4/16/09 Vista Surgical Supplies, Inc. a/a/o Ana Espada v. GEICO Ins. Co.
Appellate Term, Second Department
Omission of Information on Denial Does Not Render it Defective
The court rejected plaintiff’s argument that the insurer’s denial of claim form was defective as it omitted information in certain sections. The denial of claim form included the lack of medical necessity based upon a peer review. The fact that the insurer did not fill out certain unspecified sections not relevant to the instant claim did not render the denial defective. The form was not only approved for use by the Insurance Department but also apprised the applicant with a high degree of specificity of the ground for the denial.

4/16/09 Mid Atlantic Med., PC a/a/o Bobadilla v. Harleysville Worchester Ins. Co.
Appellate Term, Second Department
I Swear I Have Not Been to Brooklyn, Well Not in 30 Years
The insurer moved for summary judgment and was properly granted same on the basis that neither the insurer’s insureds nor the insured vehicle were involved in a hit-and-run accident in Brooklyn. The insureds, a husband and wife, submitted an affidavit attesting that they owned a 1995 Oldsmobile and live in Fredonia, NY. (For those who have never heard of Fredonia it is about 420 miles west of Brooklyn). The husband and wife further attested that they had not been to Brooklyn in over 30 years and that they are the only individuals with access to the 1995 Oldsmobile. This evidence, which was essentially uncontested by plaintiff, was sufficient to establish that the insured’s vehicle was not involved in a hit-and-run accident in Brooklyn.

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper
[email protected]

4/30/09 Pioneer Tower Owners Association v State Farm Fire & Casualty Company
Court of Appeals
High Court EXTREMELY Limits the Earth Movement and Settling/Cracking Exclusions
In our May 16, 2008 version of Coverage Pointers, your author noted the following decision. Unlike then, we now know what State Farm’s decision was based upon. Not unlike then, we are still perplexed at how State Farm’s denial was overturned.

5/06/08 Pioneer Tower Owners Assoc. v State Farm Fire & Cas. Co.
Appellate Division, Second Department
Exclusion Relied Upon by Carrier Inapplicable = Coverage for Insured
Carrier had erroneously relied upon an exclusion in the policy (don’t blame me, the Second Department didn’t tell us which one), which resulted in plaintiff’s commencement of the current declaratory judgment action to recover for damages to insured property. In finding coverage for the insured, the Second Department stated without explanation that the exclusion relied upon by carrier did not apply to plaintiff’s claim.

In this case, plaintiff sought recovery for cracks and separations in the foundation of its building. The damage occurred as a result of improper underpinning that had been erected to protect plaintiff’s structure while excavation was ongoing on the adjacent parcel of land. Because the underpinning was not sufficient, the earth beneath plaintiff’s structure “slid away” and caused instability.

State Farm denied the claim for coverage on the basis that the exclusion for property damage arising from “earth movement” applied. That exclusion, as most of you know, bars coverage for the “sinking, rising shifting, expanding or contracting of earth.” In addition, State Farm also denied coverage pursuant to the exclusion which removes coverage for damage arising from “settling, cracking, shrinking, bulging or expansion.”

To get around the clear exclusion, plaintiff argued that the breadth of the language was ambiguous, and as such should be construed against the drafter of the policy, to wit, State Farm. Plaintiff argued, principally, that the earth movement exclusion should only be read to apply to losses caused by natural forces (ie, earthquakes, landslides, erosion, etc.). As such, the exclusion should not be read to apply to earth movement caused by excavation or other man-made activities. In support of this, the Court noted plaintiff’s argument that the policy only references natural causes of earth movement and not excavation which (in the Court’s eyes) is a “more obvious and common way of moving earth).

Further, plaintiff argued that the “settling/cracking” exclusion referenced above could not be read to apply where the settling or cracking was the “immediate and obvious result of some other event.” We are not sure how one could have cracking without “some other event,” but the Court did not see that as an issue. The Court was also not persuaded that this particular exclusion also has several enumerated exceptions built in for property damage caused by specific perils.

As a result, the Court ruled that (a) the earth movement exclusion did not apply to intentional acts of displacing earth and (b) the settling or cracking exclusion does not apply to damage which is the result of some other causative event. Although not specifically endorsed, the implication of this ruling is that the earth movement exclusion (as presently constructed) is only applicable to natural causes of loss. Likewise, the “cracking” exclusion as found in most property policies may now only apply where there is a natural settling of the premises. Indeed, your author cannot imagine an incident where there would be cracking that was not the result of some other event.

4/21/09 William Floyd Union Free School District v. Wright
Appellate Division, Second Department
Court Affirms School District’s Termination of Retirement Benefits for Administrators Guilty of Stealing from the School
Defendants Wright and Cifonelli both plead guilty to several counts of larceny related to the theft of money from the School District while both were employees. Both men had a “fiduciary duties” clause in their respective contracts with the plaintiff, and the breaches of such clauses provided plaintiff with authority to terminate all future benefits. The Court noted that where the defendants both engaged in “repeated acts of disloyalty” complete and permanent forfeiture of future benefits was appropriate. We should think so!
EARL’S PEARLS
Earl K. Cantwell, II
[email protected]

CROSS-EXAMINATION RULES TO LIVE (AND DIE) BY

There is nothing like cross-examination to liven up a trial, get the competitive juices flowing, and smack down the opposition. However, good cross-examination takes a lot of work and following some simple rules:

1. Prepare a cross-examination plan for each witness. Know what you are going to ask each witness. Plan how you are going to approach each witness, i.e., are you going to be mild and conciliatory or more aggressive and strident in your approach. Know what the witness will say in response to your question, or do not ask the question. Prepare specific questions and know what is the reason for each question. Concentrate on the main points in the case because good cross-examination can be frittered away by following unnecessary tangents and distractions.

2. Control the cross-examination, and do not allow the witness to merely repeat his or her direct testimony. Ask the questions you want to ask, make the witness say what you want them to say, and address the points you want them to address and not vice versa.

3. Know when to stop questioning, and quit while you are ahead. Always try to end the cross-examination on a high note or a serious note for your case. I always try to have at least one key question held in reserve which is important to the case as to which I know the witness must answer favorably due to prior deposition testimony, having set forth their views in a document, or other information.

4. However, be flexible and be prepared to seize unexpected opportunity. Trials do not go according to script, and if a witness mis-speaks, testifies contrary to prior testimony, or testifies contrary to documentary evidence, be prepared to follow up to show the inconsistency or error. To do this you will need to be very familiar with your pre-trial and trial notes and witness outlines to instantly know when a witness may have committed a serious mis-step or has offered testimony at odds with other witnesses or documents. This is particularly apt if an expert witness mis-states a key fact or assumes an erroneous fact.

5. Remember why you are cross-examining each witness and the purposes of cross-examination which are to show that:
a) The witness is biased or prejudiced;
b) The witness is mistaken;
c) The witness’ testimony is missing or omitting key elements;
d) The witness is not believable because of a defect of knowledge, memory or perception;
e) The witness simply is not being truthful; and
f) Highlight a weakness in the other side’s position or highlight a strong point of your own case.

The best cross-examinations are short, direct, tightly controlled, and focus on the main case points. Anything less detracts from its effectiveness.

ACROSS BORDERS


4/23/2009 Nautilus Insurance Co. v. Country Oaks Apartments, Ltd.
Fifth Circuit Court of Appeals

Absolute Pollution Exclusion Unambiguously Applies to Exclude Liability Coverage for Injuries Caused By Carbon Monoxide Emissions In Insured’s Apartment Complex
Country Oaks Apartments Ltd. purchased a commercial general liability policy from Nautilus Insurance Company. During the policy period, workers accidentally blocked the vent to the furnace in several Country Oaks apartments, including an apartment leased to Kelly Schenks. The result was that carbon monoxide, normally dispersed into the outside atmosphere, was dispersed into Schenks’s apartment. Schenks was pregnant at the time with her daughter Kaia, who was born with a number of physical difficulties attributed to in utero exposure to the carbon monoxide. Schenks sued Country Oaks in Texas state court, Country Oaks tendered the claims to Nautilus, and Nautilus refused to defend on the ground that its policy’s absolute pollution exclusion barred coverage for defense and indemnity. The exclusion provided that coverage did not apply to "'bodily injury' or 'property damage' which would not have occurred in whole or in part but for the actual, alleged, or threatened discharge, dispersal, seepage, migration, release, or escape of 'pollutants' at any time." The policy defined "pollutants" as "any solid, liquid, gaseous, or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste." Nautilus filed a declaratory judgment action to determine its duties toward Country Oaks under the policies. The Fifth Circuit affirmed summary judgment for Nautilus and ruled it had no duty to defend or indemnify Country Oaks. The court held that carbon monoxide, as alleged in Schenks’s complaint, was a gaseous irritant that constituted a "pollutant," as defined in the policy. Furthermore, the court held "the emission of carbon monoxide from a furnace into an apartment unambiguously satisfies the pollution exclusion’s requirement of a 'discharge, dispersal, seepage, migration, release, or escape' of a 'pollutant.'" Here, the court found that the "requisite movement clearly occurred because the carbon monoxide at issue accumulated only after being discharged from Schenks’s furnace." The court rejected Country Oaks' argument that the bodily injury was caused by improper confinement of carbon monoxide and not its release or discharge, and explained that "by its terms, the exclusion applies to bar recovery for every 'but for' cause of injury that satisfies the exclusion’s other requirements." It concluded that "the exclusion unambiguously applies to exclude liability coverage for injuries caused to Kaia Alvarado by the pollutant carbon monoxide seeping, discharging, releasing, and dispersing into [Schenks’s] apartment."
Submitted by: Bruce D. Celebrezze and Andrew J. King (Sedgwick, Detert, Moran & Arnold LLP)

4/23/09 Six Flags, Inc. v. Westchester Surplus
Fifth Circuit Court of Appeals
Whether a Sublimit in the Relevant Insurance Policies Limits the Insurers’ Liability for Loss and Damage

The parties challenge whether a sublimit in the relevant insurance policies that applies “as respects Flood” limits the insurers’ liability for loss and damage at Six Flags’s New Orleans theme park that resulted from flooding associated with Hurricane Katrina. The district court held that the sublimit applies to the flood loss and granted partial summary judgment for the insurers. The Fifth Circuit affirmed in part, reversed in part, and remanded. One Excess Policy sublimit is “applicable to all loss or damage . . . per occurrence and in the term aggregate as respects Flood at any location in a Flood Zone A or V as designated by . . . the Federal Emergency Management Agency”. The Excess Policies also contain deductibles, including separate deductibles for the perils of Flood and of a Named Storm. After reviewing the Excess Policies, the Court found that the Commonwealth Flood definition endorsement creates an ambiguity in the Commonwealth policy but not the non-Commonwealth Excess Policies. The Court held that “[o]ne reasonable interpretation of the endorsement, when considered with the entire Commonwealth policy, is that loss resulting from a flood caused by a peril (such as a Named Storm) is not subject to the Flood sublimit. The Excess Insurers do not dispute that Hurricane Katrina was a Named Storm and cannot (at least at this time) dispute that Hurricane Katrina caused the flooding at issue here. Thus, under this interpretation, the Flood sublimit would not apply to loss resulting from the flood at the Six Flags New Orleans theme park caused by Hurricane Katrina.” The Court found that the non-Commonwealth Excess Policy was not ambiguous and the exclusion applied.
Submitted by: Meloney Cargil Perry (Meckler Bulger Tilson Marick & Pearson LLP)

REPORTED DECISIONS

Glover v. Capres Contracting Corp.


The Sullivan Law Firm, New York (Timothy M. Sullivan of
counsel), for appellants.
Budin, Reisman, Kupferberg & Bernstein, LLP, New York
(Christina M. Rieker of counsel), for respondent.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered May 7, 2008, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.
Defendants' orthopedic expert, Dr. Kerness, reported ranges of motion for the affected knee and compared them to the norm. According to these tables, plaintiff suffered no range-of-motion limitations. Dr. Kerness also performed numerous objective tests, all of which were negative, and his report established, prima facie, that plaintiff did not suffer a "significant" or "permanent consequential limitation" with respect to the functioning of the knee. Plaintiff, in turn, failed to raise a triable issue of fact with regard to these categories of "serious injury" (Insurance Law § 5102[d]). The report of her chiropractor does not even address the knee injury, but focuses instead on spinal limitations that are not alleged in the bill of particulars.
Defendants also established that plaintiff's injury did not fall within the 90/180-day category of the statute. The bill of particulars states that plaintiff was confined to home or bed for a period of weeks, but does not indicate that such confinement was medically ordered. Plaintiff's self-serving deposition testimony regarding her inability to work for a period of time is insufficient to establish that she was prevented from performing her usual and customary activities for at least 90 of the 180 days following the accident (see Rodriquez v Abdallah, 51 AD3d 590, 592 [2008]).
A knee fracture is an independent category of serious injury under the statute (see Joyce v Lacerra, 41 AD3d 236 [2007]). Aware of this alleged fracture, Dr. Kerness not only found a normal range of motion, but diagnosed the injury as "resolved." Plaintiff argues that defendants failed to meet their initial burden because they never addressed the record evidence of a patellar fracture. That evidence, however, is equivocal. Only one of the unsworn X ray reports, dated seven months after the accident, notes a healing patellar fracture. The other (contemporaneous) reports were equivocal and call for confirmation via clinical examination or further studies. The MRI report of Dr. Campbell, which defendants were entitled to rely on (see Newton v Drayton, 305 AD2d 303 [2003]), found a contusion, but no recognition of the clinically described patellar fracture, and no cortical offset was observed. He recommended correlation with radiograph or other CT scanning to detect the presence of a fracture not yet identified.
Dr. Campbell's report was sufficient to establish, prima facie, that plaintiff had not sustained a fracture. In turn, plaintiffs failed to raise a triable issue of fact. The affidavit of plaintiff's chiropractor did not address the injury to the right knee. The contemporaneous X ray reports are equivocal regarding the existence of a fracture and are in any event inadmissible (Grasso v Angerami, 79 NY2d 813 [1991]). The only reference to a fracture is in the September 15, 2006 report of the X ray of the right knee, which detects "a transverse sclerotic line . . . across the superior patella consistent with healing patellar fracture." The impression repeats: "Healing patellar fracture." In addition to this report being unsworn, it cannot be determined who interpreted the X ray or whether it became a part of plaintiff's medical record. There is no other evidence of a fracture, admissible or otherwise, since neither plaintiff's medical records nor those of her treating physicians are presented. There is no report referencing these findings, adopting them or correlating them with physical findings. Plaintiff has thus failed to demonstrate that she sustained a serious injury (see O'Bradovich v Mrijaj, 35 AD3d 274 [2006]).
James Garrison Hudkins v. 81st Street Parking, LLC


Hoey, King, Toker & Epstein, New York, N.Y. (Regine Dely-
Lazard of counsel), for appellants 81st Street Parking, LLC,
Tamir Parking Corporation, and Disoky F. Elshapey.
Morris Duffy Alonso & Faley, New York, N.Y. (Pauline E.
Glaser of counsel), for appellant
Louis Jacobs & Sons, Inc.
Eric H. Green, New York, N.Y. (Marc H. Gertler of counsel),
for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants 81st Street Parking LLC, Tamir Parking Corporation, and Disoky F. Elshafey appeal, and the defendant Louis Jacobs & Son, Inc., separately appeals, as limited by their briefs, from so much of an order of the Supreme Court, Kings County (Ruchelsman, J.), dated March 18, 2008, as denied those branches of their respective motions which were for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the plaintiff by the defendants appearing separately and filing separate briefs.
The defendants met their respective prima facie burdens of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). However, in opposition, the plaintiff raised a triable issue of fact. The plaintiff submitted, inter alia, the affirmation of his treating orthopedist, Dr. Leonard R. Harrison. Based upon his contemporaneous and recent range-of-motion testing, Dr. Harrison raised a triable issue of fact as to whether the plaintiff sustained a serious injury as a result of the subject accident under the permanent consequential limitation or the significant limitation of use categories of Insurance Law § 5102(d) (see Delorbe v Perez, 59 AD3d 491, 492; Prescott v Amadoujalloh, 55 AD3d 584, 584-585; Williams v Clark, 54 AD3d 942, 943; Casey v Mas Transp., Inc., 48 AD3d 610, 611; Green v Nara Car & Limo, Inc., 42 AD3d 430, 431). The plaintiff also provided an adequate explanation for the gap in his treatment history (see Pommells v Perez, 4 NY3d 566, 577; Delorbe v Perez, 59 AD3d at 492). Accordingly, the Supreme Court properly denied the motions 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).
We do not reach the contention of the defendant Louis Jacobs & Son, Inc., concerning that branch of its motion which was for summary judgment on its cross claim against the remaining defendants for common-law indemnification, as that branch of the motion was not addressed by the Supreme Court. Thus, it remains pending and undecided (see Magriples v Tekelch, 53 AD3d 532, 532; Katz v Katz, 68 AD2d 536, 542-543).
Nickolson v. Albishara


Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for appellants.
Budin, Reisman, Kupferberg & Bernstein, LLP, New York
(Christina N. Rieker of counsel), for respondents.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered October 24, 2008, which, insofar as appealed from, denied defendants-appellants' motion for summary judgment dismissing the complaint for lack of a serious injury within the meaning of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint as against all defendants.
Plaintiff's expert radiologist failed to address, let alone rebut, defendants' radiologist's nonconclusory finding that plaintiff's disc bulges and herniations were caused by a preexisting degenerative condition, or even to relate the disc bulges and herniations to the accident; accordingly, plaintiff fails to raise an issue of fact as to whether his alleged injuries were caused by the accident (see Delfino v Luzon, __ AD3d __, 812 NYS2d 24, 25 [2009]; Valentin v Pomilla, 59 AD3d 184, 185 [2009]). It does not avail plaintiff for his attorney to assert that defendants' radiologist's findings of preexisting conditions "is unfounded and not based on any medically conclusive findings, as she did not review any prior MRI films, or ever physically examine the plaintiff, or review any of plaintiff's medical records" (cf. Ramirez v Miller, 29 AD3d 310, 314 [2006]). We dismiss the complaint as against all defendants upon a search of the record pursuant to CPLR 3212(b) (see Lopez v Simpson, 39 AD3d 420 [2007]).
IN THE MATTER OF GMAC INSURANCE COMPANY v. Jones


Appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), entered August 13, 2008 in a proceeding pursuant to CPLR article 75. The order, insofar as appealed from, denied in part the petition seeking, inter alia, a permanent stay of arbitration of respondent's claim for uninsured motorist benefits.

CASCONE & KLUEPFEL LLP, BUFFALO (MICHAEL C. LANCER OF COUNSEL), FOR PETITIONER-APPELLANT.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR RESPONDENT-RESPONDENT.
BAXTER SMITH TASSAN & SHAPIRO, P.C., BUFFALO (LOUIS B. DINGELDEY, JR., OF COUNSEL), FOR PROPOSED ADDITIONAL RESPONDENT-RESPONDENT.


It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 75 seeking, inter alia, a permanent stay of arbitration of a claim by respondent for uninsured motorist (UM) coverage. Respondent was injured on July 3, 2006 when the vehicle he was operating collided with a vehicle owned by "proposed additional respondent" Jesse Willoughby. At that time, respondent was insured by petitioner with UM coverage of $25,000 per person, and Willoughby was insured by "proposed additional respondent" Nova Casualty Company (Nova). Nova, however, did not learn of the accident until January 8, 2008, when it received a letter from respondent's attorney concerning the accident. On January 14, 2008, Nova sent a letter to Willoughby indicating that there was a "coverage question" based on his "failure to report an accident and cooperate in the investigation." The letter further stated that Nova would continue to handle the claim but that it reserved its right to disclaim coverage. Thereafter, Nova attempted to locate Willoughby to allow him to explain his failure to notify Nova of the claim. Nova's efforts included sending a letter to Willoughby's last known address, which was returned as undeliverable; calling Willoughby at several of his last known telephone numbers; calling Willoughby's sister, who stated that she had not had contact with Willoughby since April 2007; calling Willoughby's neighbors at Willoughby's known addresses; physically attempting to contact Willoughby at four known addresses; sending letters to Willoughby at his sister's address; attempting to obtain a copy of the police report from the accident; and corresponding with respondent's attorney in an attempt to obtain additional information concerning Willoughby. Despite those efforts, Nova never received a response from Willoughby, and it disclaimed coverage on February 21, 2008. Respondent then requested UM arbitration with petitioner, alleging that Willoughby's vehicle was an "uninsured vehicle" pursuant to the terms of respondent's policy.
Petitioner contends that Supreme Court erred in denying those parts of the petition seeking a permanent stay of arbitration and a "framed issue hearing regarding the issue of coverage on the offending vehicle" because Nova failed to meet its burden of establishing that it validly disclaimed coverage for Willoughby. We reject that contention. We conclude that Nova established as a matter of law that its disclaimer of coverage was valid, based on the 18-month delay between the date of the accident and the date on which Nova received notice of the claim (see generally Doe Fund, Inc. v Royal Indem. Co., 34 AD3d 399).
Contrary to petitioner's further contention, the delay of 44 days between the date on which Nova received notice of the claim and the date on which it notified Willoughby of the disclaimer did not render its disclaimer of coverage untimely. It is well settled that, "[i]n order to effectively disclaim liability or deny coverage . . . under an automobile liability insurance policy, an insurer must give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage' " (Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1029, rearg denied 47 NY2d 951). "[A]n insurer's explanation [for a delay in notifying the insured of a disclaimer] is insufficient as a matter of law where the basis for denying coverage was or should have been readily apparent before the onset of the delay" (First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64, 69). "However, an insurer's delay in notifying the insured of a disclaimer may be excused when the insurer conducts an investigation into issues affecting [its] decision whether to disclaim coverage' . . . In that case, the burden is on the insurer to demonstrate that its delay was reasonably related to its completion of a thorough and diligent investigation" (Tully Constr. Co., Inc. v TIG Ins. Co., 43 AD3d 1150, 1152-1153, quoting First Fin. Ins. Co., 1 NY3d at 69).
We conclude that Nova's efforts constituted an "investigation into issues affecting [Nova's] decision whether to disclaim coverage" (First Fin. Ins. Co., 1 NY3d at 69; see generally Tully Constr. Co., Inc., 43 AD3d at 1153; Sirius Am. Ins. Co. v TGC Constr. Corp., 37 AD3d 818, 819). Nova therefore established a reasonable excuse for the delay as a matter of law, and there was no reason to conduct a "framed issue hearing" with respect to Nova's disclaimer. The fact that Nova knew on January 8, 2008 that the claim involved an accident that occurred on July 3, 2006 "did not make it readily apparent' that it had the right to disclaim coverage" (Ace Packing Co., Inc. v Campbell Solberg Assoc., Inc., 41 AD3d 12, 15). "Only an investigation of the type ordered by [Nova] would yield [information that it] needed in order to make a good faith decision regarding disclaimer" (id.; see Norfolk & Dedham Mut. Fire. Ins. Co. v Petrizzi, 121 AD2d 276, 278, lv denied 68 NY2d 611).

Crocodile Bar, Inc. v. Dryden Mutual Insurance Company


Appeal from a judgment (denominated order) of the Supreme Court, Erie County (John A. Michalek, J.), entered February 22, 2008 in a declaratory judgment action. The judgment, inter alia, granted the motion of plaintiff for summary judgment declaring that defendant Dryden Mutual Insurance Company is obligated to defend and indemnify plaintiff in three underlying actions.

BARTH SULLIVAN BEHR, BUFFALO (LAURENCE D. BEHR OF COUNSEL), FOR DEFENDANT-APPELLANT.
SUGARMAN LAW FIRM, LLP, BUFFALO (BRIAN SUTTER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking, inter alia, a declaration that defendant Dryden Mutual Insurance Company (Dryden) is obligated to defend and indemnify it in three underlying personal injury actions. Supreme Court properly granted plaintiff's motion for summary judgment with respect to, inter alia, that declaration on the ground that Dryden failed to provide a timely disclaimer of coverage (see Insurance Law § 3420 [d]; Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188-190). "[A] timely disclaimer [of coverage] pursuant to Insurance Law § 3420 (d) is required [where, as here,] a claim falls within the coverage terms but is denied based on a policy exclusion" (Markevics v Liberty Mut. Ins. Co., 97 NY2d 646, 648-649; see Worcester, 95 NY2d at 188-190; Penn-America Group v Zoobar, Inc., 305 AD2d 1116, 1117, lv denied 100 NY2d 511). "[O]nce the insurer has sufficient knowledge of facts entitling it to disclaim, or knows that it will disclaim coverage, it must notify the policyholder in writing as soon as is reasonably possible" (First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64, 66; see Republic Franklin Ins. Co. v Pistilli, 16 AD3d 477, 479; Squires v Robert Marini Bldrs., 293 AD2d 808, 810, lv denied 99 NY2d 502). Here, Dryden's claims adjuster was aware when he received the claim on November 10, 2005 that the claim was excluded from the policy, and Dryden failed to establish that its 62-day delay was "reasonably related to the completion of a necessary, thorough, and diligent investigation" (Quincy Mut. Fire Ins. Co. v Uribe, 45 AD3d 661, 662; see First Fin. Ins. Co., 1 NY3d at 70; Morath v New York Cent. Mut. Fire Ins. Co., 49 AD3d 1245).
Bhatt v. Nationwide Mutual Ins. Co.


Appeal from an order of the Supreme Court, Oneida County (Samuel D. Hester, J.), entered January 11, 2008. The order, insofar as appealed from, denied the motion of defendant for summary judgment.

MURA & STORM, PLLC, BUFFALO (ROY A. MURA OF COUNSEL), FOR DEFENDANT-APPELLANT.
LONGSTREET & BERRY, LLP, SYRACUSE (MARTHA BERRY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking to recover supplemental uninsured/underinsured motorist (SUM) benefits under an automobile insurance policy issued to her by defendant. Under the SUM endorsement, plaintiff was required to give defendant notice of a claim "[a]s soon as practicable." Plaintiff promptly notified defendant of the motor vehicle accident, which occurred on May 22, 2000, and she filed a claim for no-fault benefits on July 20, 2000. On April 7, 2003, plaintiff gave defendant notice of her claim under the SUM endorsement. Defendant disclaimed coverage on the ground that plaintiff failed to provide timely notice of the SUM claim.
We conclude that Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint. "[W]here an insured previously gives timely notice of the accident, the carrier must establish that it is prejudiced by a late notice of SUM claim before it may properly disclaim coverage" (Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 476). Here, it is undisputed that plaintiff timely notified defendant of the accident and, shortly thereafter, filed a claim for no-fault benefits. Defendant failed to establish that it was prejudiced by plaintiff's delay in providing notice of the SUM claim (see id. at 475-476).
Village of Springville v. Reynolds

Appeals from a judgment (denominated order) of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), entered January 4, 2008 in a declaratory judgment action. The judgment, inter alia, granted the cross motion of plaintiff for summary judgment.


GOLDBERG SEGALLA LLP, BUFFALO (DANIEL W. GERBER OF COUNSEL), FOR DEFENDANT-APPELLANT ARGONAUT INSURANCE COMPANY, ALSO KNOWN AS ARGONAUT GROUP, INC.
FELDMAN, KIEFFER & HERMAN, LLP, BUFFALO (STEPHEN M. SORRELS OF COUNSEL), FOR DEFENDANT-APPELLANT U.S. SPECIALTY INSURANCE COMPANY.
HURWITZ & FINE, P.C., BUFFALO (DAN D. KOHANE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by denying plaintiff's cross motion in part and vacating the declarations with respect to defendant Argonaut Insurance Company, also known as Argonaut Group, Inc., and the award of costs and attorneys' fees, and by granting the motion and granting judgment in favor of that defendant as follows: It is ADJUDGED and DECLARED that defendant Argonaut Insurance Company, also known as Argonaut Group, Inc., is not obligated to defend or indemnify plaintiff in the underlying action, and as modified the judgment is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking a declaration that defendants Argonaut Insurance Company, also known as Argonaut Group, Inc. (Argonaut), and U.S. Specialty Insurance Company (USSIC) are each obligated to defend and indemnify it in the underlying action commenced by defendant Walter F. Reynolds, III (Reynolds) in federal court. We conclude that Supreme Court properly granted that part of plaintiff's cross motion seeking summary judgment declaring that USSIC is obligated to defend plaintiff in the underlying action but erred in granting those parts of plaintiff's cross motion seeking that relief with respect to Argonaut and seeking costs and attorneys' fees from Argonaut. We further conclude that the court erred in denying the motion of Argonaut for summary judgment declaring that it is not bligated to defend or indemnify plaintiff in the underlying action. We therefore modify the judgment accordingly.
Reynolds was the owner of a building that housed his residence and a tavern/restaurant. The building was damaged by a fire, and plaintiff directed the demolition of the building the day after the fire. Reynolds thereafter commenced the underlying action in federal court seeking damages for the loss of the property and violation of various constitutional rights. Plaintiff commenced this action following the disclaimer of coverage by both Argonaut, the commercial liability carrier, and USSIC, the nonprofit organization liability carrier.
In viewing the loss from the point of view of plaintiff, the insured (see Miller v Continental Ins. Co., 40 NY2d 675, 677), we agree with Argonaut that plaintiff failed to establish that the loss was caused by an occurrence, which is defined by the policy as an accident. "A duty to defend is triggered by the allegations contained in the underlying complaint" (BP Air Conditioning Corp. v One Beacon Ins. Group, 8 NY3d 708, 714). Here, the complaint in the underlying action alleges that the decision by plaintiff to demolish its building and the demolition itself were intentional (see generally Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131, 137). Although "[a]ccidental results [and unintended damages] can flow from intentional acts . . ., when the damages alleged in the [underlying] complaint are the intended result which flows directly and immediately from [the insured's] intentional act, rather than arising out of a chain of unintended though foreseeable events that occurred after the intentional act', there is no accident, and therefore, no coverage" (Salimbene v Merchants Mut. Ins. Co., 217 AD2d 991, 994; cf. Automobile Ins. Co. of Hartford, 7 NY3d at 137-138). We conclude on the record before us that there was no accident and thus no coverage with respect to Argonaut (see generally Salimbene, 217 AD2d at 994). Inasmuch as plaintiff commenced the instant declaratory judgment action and did not incur costs and attorneys' fees "defending against [an] insurer's action" (U.S. Underwriters Ins. Co. v City Club Hotel, LLC, 3 NY3d 592, 597; see Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21-22), we conclude that the court erred in granting that part of plaintiff's cross motion seeking costs and attorneys' fees.
We reject the contention of USSIC that the loss falls within two exclusions contained in its policy, i.e., the exclusion for, inter alia, the destruction of tangible property and the exclusion for wrongful acts on the part of the insured, including acts that are dishonest, malicious, fraudulent "or otherwise intended to cause damage or injury to persons or property." In addition to alleging damage to the property, the complaint in the underlying action alleges the violation of various constitutional rights, including the denial of due process, the violation of the right to free speech, and the denial of equal protection rights. We conclude that plaintiff met its initial burden on its cross motion, and USSIC failed to raise an issue of fact whether "the allegations of the complaint cast that pleading solely and entirely within the policy exclusions" (Automobile Ins. Co. of Hartford, 7 NY3d at 137 [internal quotation marks omitted]; see generally Zuckerman v City of New York, 49 NY2d 557, 562). Thus, the court properly granted that part of plaintiff's cross motion for summary judgment declaring that USSIC is obligated to defend plaintiff in the underlying action.
In the Matter of Hermitage Insurance Company v. Escobar

Cannon & Acosta, LLP, Huntington Station, N.Y. (June Redeker and
Gary Small of counsel), for appellant.
Gold, Stewart, Kravatz, Benes & Stone, LLP, Westbury, N.Y.
(Robert J. Stone, Jr., of counsel), for
petitioner-respondent.

DECISION & ORDER
In a proceeding, inter alia, pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, William Escobar appeals from so much of an order of the Supreme Court, Nassau County (Phelan, J.), dated May 21, 2008, as determined that the proceeding was timely commenced and directed a framed-issue hearing.
ORDERED that on the Court's own motion, the notice of appeal from so much of the order as granted the petition to the extent of directing a framed-issue hearing is deemed an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701; Matter of Standard Fire Ins. Co. v Mouchette, 47 AD3d 636); and it is further,
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the petition is denied, and the proceeding is dismissed as time-barred.
CPLR 7503(c) requires that an application to stay arbitration be made within 20 days after service of a notice of intention to arbitrate (see Matter of Fiveco, Inc. v Haber, 11 NY3d 140, 144; Matter of Land of Free v Unique Sanitation, Inc., 93 NY2d 942, 943; Matter of Steck [State Farm Ins. Co.], 89 NY2d 1082, 1084; Matter of Spychalski [Continental Ins. Cos.], 45 NY2d 847, 849). Unless a party makes an application for a stay of arbitration within the statutory 20-day period, CPLR 7503(c) generally precludes the party from objecting to the arbitration thereafter (see Matter of Fiveco, Inc. v Haber, 11 NY3d at 144; Matter of Land of Free v Unique Sanitation, Inc., 93 NY2d at 943; Matter of Steck [State Farm Ins. Co.], 89 NY2d at 1084; Matter of Spychalski [Continental Ins. Cos.], 45 NY2d at 849). Here, the instant proceeding was commenced more than 20 days after service upon the petitioner of a notice of intention to arbitrate. Contrary to the Supreme Court's determination, the record contains no indication that the petitioner was denied a fair opportunity to commence a proceeding to permanently stay arbitration within 20 days after service of the notice (see Matter of Allstate Ins. Co. v Barbera, 117 AD2d 801, 802; Matter of CNA Ins. Co. v Glass, 75 AD2d 600; cf. Matter of Nationwide Ins. Co. v Singh, 6 AD3d 441, 444). Under these circumstances, the petition should have been denied, and the proceeding dismissed as untimely.
Anglero v. The George Units, LLC

Stahl & Zelmanovitz, New York (Evan M. Newman of
counsel), for appellants.
Goldberg Segalla LLP, Buffalo (Carrie P. Appler of counsel),
for respondent.
Order, Supreme Court, New York County (Edward H. Lehner, J.), entered August 19, 2008, which granted third-party defendant's motion for summary judgment declaring that it has no duty to defend or indemnify defendants/third-party plaintiffs (insureds) in the underlying action, unanimously affirmed, without costs.
The motion court properly found that the insureds' one-year delay in notifying third-party defendant of the subject accident was unreasonable as a matter of law (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742 [2005]). The record shows that after falling on a wet floor in the insureds' premises, the plaintiff in the underlying action was taken away from the accident location by ambulance, and that the insureds' superintendent had knowledge of the accident on the day it occurred and subsequently saw plaintiff on the premises using a cane. Under the circumstances, there are no triable issues as to whether the insureds' delay in giving notice was reasonably founded upon a good-faith belief of nonliability (see Tower Ins. Co. of N.Y. v Lin Hsin Long Co., 50 AD3d 305, 307-308 [2008]; Paramount Ins. Co. v Rosedale Gardens, 293 AD2d 235, 240-242 [2002]).
LM Property and Casualty Co., Inc v. Evans


Appeal from a judgment (denominated order) of the Supreme Court, Wyoming County (Rose H. Sconiers, J.), entered May 15, 2008 in a declaratory judgment action. The judgment, insofar as appealed from, granted the cross motion of plaintiff for summary judgment.

LAW OFFICE OF J. MICHAEL HAYES, BUFFALO (J. MICHAEL HAYES OF COUNSEL), FOR DEFENDANT-APPELLANT.
CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (JOHN N. PHILIPPS, JR., OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking a declaration that it is not obligated to defend or indemnify defendant Matthew Graber in an underlying wrongful death action commenced by Douglas L. Evans (defendant), as administrator of decedent's estate. Decedent was killed when his motor vehicle collided with a vehicle that was owned and operated by Graber. At the time of the accident, Graber's vehicle was insured under a policy issued by United Services Automobile Association, and Graber was also listed as a "licensed operator" on a policy issued to his mother and step-father by plaintiff's predecessor in interest, Prudential Financial, Inc. The declarations page of the Prudential policy listed two covered vehicles for which premiums were paid: a 2000 Pontiac Bonneville sedan and a 2001 Chevrolet S10 pickup truck. Pursuant to Part 3 of that policy, entitled "If You Injure Others or Damage Their Property," coverage was extended to "all cars for which a premium charge for this coverage is shown on the Declarations Page."
We conclude that Supreme Court properly granted plaintiff's cross motion for summary judgment on the complaint, in effect issuing a declaration that the Prudential policy did not provide coverage for Graber in the accident. Plaintiff established as a matter of law that Graber's 1999 Chevrolet Blazer is not a covered vehicle under the clear and unambiguous terms of the Prudential policy (see Breed v Insurance Co. of N. Am., 46 NY2d 351, 355, rearg denied 46 NY2d 940). In opposition, defendant failed to raise a triable issue of fact sufficient to defeat the cross motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562). Contrary to defendant's contention, the appearance of Graber's name on the Prudential policy did not provide Graber with coverage in the subject accident. Such an interpretation of the policy would create "an added source of indemnification [that] had never been contracted for and for which no premium had ever been paid" (Zappone v Home Ins. Co., 55 NY2d 131, 137).
Byrd v. J.R.R. Limo


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Feinman & Grossbard, P.C. [Steven N. Feinman], of counsel),
for appellants.
Jacoby & Myers, LLP, Newburgh, N.Y. (Finkelstein &
Partners, LLP [George A. Kohl 2nd], of
counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Hinds-Radix, J.), dated September 28, 2008, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.
The defendants made a prima facie showing of entitlement to judgment as a matter of law through the submission of the plaintiff's deposition testimony, and the affirmations of their examining physicians stating that, based upon their examinations of the plaintiff, the plaintiff did not have any permanent injury, limitation, or restriction (see Luckey v Bauch, 17 AD3d 411; Sims v Megaris, 15 AD3d 468; Check v Gacevk, 14 AD3d 586; Paul v Trerotola, 11 AD3d 441; Mastaccioula v Sciarra, 11 AD3d 434). The plaintiff's submissions in opposition failed to raise a triable issue of fact. The affirmation of the plaintiff's treating physician was not based upon a recent examination of the plaintiff, as he only examined the plaintiff within the first 2½ months after the accident and more than two years before the defendants moved for summary judgment (see Batista v Olivo, 17 AD3d 494; Mohamed v Dhanasar, 273 AD2d 451; Kauderer v Penta, 261 AD2d 365). Moreover, while the plaintiff's orthopedic surgeon performed arthroscopic surgery on the plaintiff's right shoulder one year after the accident, the mere existence of a tear in the shoulder 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 their duration (see Shtesl v Kokoros, 56 AD3d 544; Choi Ping Wong v Innocent, 54 AD3d 384; Cornelius v Cintas Corp., 50 AD3d 1085). Here, the plaintiff's treating physician noted that the plaintiff had a full range of motion in her right shoulder in all directions within weeks after the accident, and the plaintiff's orthopedic surgeon noted that she had a full range of motion in her right shoulder within six months after the surgery.
Christian v. Waite


Orlow, Orlow & Orlow, P.C., Flushing (Adam M. Orlow of
counsel), for appellant.
Law Office of Thomas K. Moore, White Plains (Nick
Migliaccio of counsel), for George Waite, respondent.
Barrett Lazar, LLC, Forest Hills (Marc B. Schuley of counsel),
for Janine Garfield, respondent.
Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered February 14, 2008, which granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants established a prima facie entitlement to summary judgment by submitting evidence demonstrating that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of an automobile accident. Specifically, defendants submitted the affirmed report of a neurologist who, upon examining plaintiff and performing objective tests with range of motion calculations, concluded that she had a normal range of motion of the lumbar and cervical spine, despite positive MRI findings (see Thompson v Abbasi, 15 AD3d 95, 96 [2005]). They also submitted plaintiff's bill of particulars and deposition testimony, which reveal that plaintiff was confined to bed and home for only a few weeks after the accident.
Plaintiff failed to raise a triable issue of fact as to whether a serious injury was sustained. Despite the positive MRI report, there were no admissible objective findings immediately following the accident to demonstrate any initial range of motion restrictions on plaintiff's cervical and lumbar spine, or any detailed explanation for their omission (Thompson, 15 AD3d at 98). The quantitative range of motion assessment plaintiff did submit was made some two years after the accident by a physician who examined her for the first time on that occasion, apparently for purposes of litigation (see Atkinson v Oliver, 36 AD3d 552, 552-553 [2007]). We also note that there was a significant gap in treatment.
Plaintiff also failed to raise a triable issue of fact as to whether she was incapacitated from performing substantially all of her usual and customary activities for at least 90 of the first 180 days after the accident. The subjective claims of pain and "unsubstantiated claim of inability to perform [her] customary daily activities are insufficient to raise a triable issue of fact" (Thompson, 15 AD3d at 101).
Colon v. Chu


Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock
of counsel), for appellant.
Mauricio A. Malagon, New York, N.Y., for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant Chuen Sum Chu appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated April 14, 2008, as denied that branch of his motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Francisco Colon against him on the ground that the plaintiff Francisco Colon 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 defendant Chuen Sum Chu (hereinafter the appellant) failed to meet his prima facie burden of showing, on his motion for summary judgment, that the plaintiff Francisco Colon did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of his motion, he relied on the affirmed medical report of Barry M. Katzman, an orthopedic surgeon, who examined Francisco more than 5½ years after the subject accident. During that examination, Dr. Katzman noted significant limitations in Francisco's lumbar spine range of motion (see Powell v Prego, 59 AD3d 417; Locke v Buksh, 58 AD3d 698; Hurtte v Budget Roadside Care, 54 AD3d 362; Jenkins v Miled Hacking Corp., 43 AD3d 393; Bentivegna v Stein, 42 AD3d 555, 556; Zamaniyan v Vrabeck, 41 AD3d 472). His explanation that said limitations were "voluntary" was insufficient by itself to remedy those findings (see Busljeta v Plandome Leasing, Inc., 57 AD3d 469).
Since the appellant failed to establish his prima facie entitlement to judgment as a matter of law as against Francisco, it is unnecessary to reach the question of whether the papers submitted in opposition were sufficient to raise a triable issue of fact (see Powell v Prego, 59 AD3d 417; Coscia v 938 Trading Corp., 283 AD2d 538).
Cuevas v. Compote Cab Corp.


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

DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Battaglia, J.), dated August 4, 2008, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff Maribel Cuevas did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.
ORDERED that the order is affirmed, with costs.
The defendants failed to meet their prima facie burden of showing that the plaintiff Maribel Cuevas did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants' neurologist found restrictions in the range of motion of the plaintiff's lumbar spine, which he described as "self-restricted." However, the neurologist failed to explain or substantiate, with any objective medical evidence, the basis for his conclusion that the limitations that were noted were self-restricted (see Colon v Chuen Sum Chu,AD3d [Appellate Division Docket No. 2008-04607; decided herewith]; Torres v Garcia, 59 AD3d 705; Busljeta v Plandome Leasing, Inc., 57 AD3d 469). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment without considering the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
Delayhaye v. Caledonia Limo & Car Service, Inc.


The Edelsteins, Faegenburg & Brown, LLP, New York, N.Y.
(Evan M. Landa of counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York,
N.Y. (Stacy R. Seldin of counsel), for
respondents Caledonia Limo & Car
Service, Inc., and Lincoln O. Phillips.
Stockschlaeder, McDonald & Sules, P.C., New York, N.Y.
(Richard T. Sules of counsel), for
respondents Nakia Trent Griffin and
Yaneen S. Griffin.

DECISION & ORDER
In a consolidated action to recover damages for personal injuries, the plaintiff Colville Elson appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated October 26, 2007, as granted the respective motions of the defendants Caledonia Limo & Car Service, Inc., and Lincoln O. Phillips, and the defendants Nakia Trent Griffin and Yaneen S. Griffin, for summary judgment dismissing the complaint insofar as asserted by him against them on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed insofar as appealed from, with one bill of costs, and the defendants' motions for summary judgment dismissing the complaint insofar as asserted against them by the plaintiff Colville Elson are denied.
The Supreme Court erred in granting the defendants' motions for summary judgment dismissing the complaint insofar as asserted against them by the plaintiff Colville Elson (hereinafter the appellant). In support of their motion, the defendants Caledonia Limo & Car Service, Inc., and Lincoln O. Phillips (hereinafter together Caledonia) relied on, inter alia, the report of the appellant's treating physician, Dr. Glenton A. Smith, dated October 2, 2004. In that report, Dr. Smith noted the existence of significant limitations in the ranges of motion of the appellant's lumbar and cervical spines (see Guerrero v Bernstein, 57 AD3d 845). The defendants Nakia Trent Griffin and Yaneen S. Griffin relied on the affirmed medical reports of their examining orthopedic surgeon and neurologist, in which they noted significant limitations in the range of motion of the appellant's lumbar spine (see Giacomaro v Wilson, 58 AD3d 802; Hurtte v Budget Roadside Care, 54 AD3d 362; Jenkins v Miled Hacking Corp., 43 AD3d 393; Bentivegna v Stein, 42 AD3d 555; Zamaniyan v Vrabeck, 41 AD3d 472).
Furthermore, the defendants' motion papers never addressed the appellant's claim, clearly set forth in his bill of particulars, that he sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident (see Colacino v Andrews, 50 AD3d 615; Greenidge v Righton Limo, Inc., 43 AD3d 1109; Sayers v Hot, 23 AD3d 453). Here, the subject accident occurred on April 6, 2004, and the appellant alleged that he was out of work for three months as a result thereof. The experts for the defendants who examined the appellant did so more than 2½ years after the accident. None of those experts related their findings to this category of serious injury for the period of time immediately following the subject accident.
While Caledonia also relied on the affirmed medical report of Dr. Audrey Eisenstadt, their radiologist, it failed to establish that the appellant did not sustain a serious injury. In her report, Dr. Eisenstadt merely provided her opinion concerning her review of the appellant's lumbar spine magnetic resonance imaging films dated April 13, 2004. The appellant claimed more than lumbar injuries in his bill of particulars, and Dr. Eisenstadt's report does not address those other claims, such as cervical spine injuries (see Carr v KMO Transp., Inc., 58 AD3d 783; Jenson v Nicmanda Trucking Inc., 47 AD3d 769).
Since the defendants did not meet their respective prima facie burdens, it is unnecessary to decide whether the papers submitted by the appellant in opposition were
Licygiewicz v. Stearns


Calendar Date: February 11, 2009
Before: Mercure, J.P., Rose, Lahtinen, Malone Jr. and Kavanagh, JJ.

Conway & Kirby, L.L.P., Latham (Kimberly B.
Furnish of counsel), for appellant.
James M. Brooks, Lake Placid (Mandy McFarland of
Thorn, Gershon, Tymann & Bonnani, L.L.P., Albany, of
counsel), for respondent.
MEMORANDUM AND ORDER

Rose, J.
Appeal from an order of the Supreme Court (Dawson, J.), entered February 1, 2008 in Essex County, which granted defendant's motion for summary judgment dismissing the complaint.
Plaintiff's left thumb was dislocated in a motor vehicle accident and required surgical reduction. Alleging that this was a serious injury within the meaning of Insurance Law § 5102 (d), she commenced this personal injury action. Supreme Court granted defendant's motion for summary judgment dismissing the complaint, and plaintiff now appeals.
In support of his motion, defendant proffered plaintiff's deposition testimony and the records and reports of her treating physicians. According to those records, plaintiff's orthopedic surgeon concluded that, after she recovered from the surgery necessary to reduce the dislocation, there was only a minimal limitation of the flexion of her thumb and she had regained full functional use of her non-dominant left hand. Thus, even if permanent, this limitation would not constitute a consequential or significant limitation of use. As for the 90/180-day category claim, defendant cited plaintiff's deposition testimony in which she admitted that her injury had not significantly impaired her work, recreation or other customary activities. As for the claim of significant disfigurement, defendant submitted color photographs of plaintiff's thumb and referred to her medical records to show that she had a barely perceptible, thin, pale scar and two small bumps from her surgery. This proof was sufficient to shift the burden to plaintiff to raise a material question of fact as to the existence of a serious injury (see e.g. Baker v Thorpe, 43 AD3d 535, 536-537 [2007]).
To meet her burden, plaintiff relied on affirmations by her orthopedic surgeon and plastic surgeon. The affirmations, however, were not based on recent examinations of plaintiff (see Wolff v Schweitzer, 56 AD3d 859, 861 [2008]; Chunn v Carman, 8 AD3d 745, 746 [2004]; Davis v Evan, 304 AD2d 1023, 1025 [2003]), and their conclusory statements that she has a consequential and significant limitation of the use of her thumb merely parrot the statutory language (see Wilber v Breen, 25 AD3d 836, 836-837 [2006]; Bent v Jackson, 15 AD3d 46, 50 [2005]; June v Gonet, 298 AD2d 811, 812 [2002]). While plaintiff's submissions demonstrate that her limitation is permanent, they do not show that the limitation is more than mild, minor or slight (see e.g. Flisch v Walters, 42 AD3d 682, 684-685 [2007]; Palmer v Moulton, 16 AD3d 933, 935 [2005]).
Plaintiff also failed to raise a triable issue of fact regarding the 90/180-day category, since she acknowledged during her deposition that she missed less than a week of school due to the injury and had full use of her hand within two months (see Clements v Lasher, 15 AD3d 712, 713-714 [2005]; Dongelewic v Marcus, 6 AD3d 943, 944-945 [2004]). Nor is her claim that her surgical scar constitutes a significant disfigurement supported by a review of either the photographs or the descriptions contained in the medical records (see Baker v Thorpe, 43 AD3d at 537; Johnson v Grant, 3 AD3d 720, 721 [2004]).
Liriano v. Ostrich Cab Corp.


Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for appellant.
Pollack, Pollack, Isaac & DeCicco, New York (Jillian Rosen of
counsel), for respondents.
Order, Supreme Court, New York County (Paul Wooten, J.), entered December 1, 2008, which denied the corporate defendant's motion for summary judgment dismissing the complaint as against it, unanimously modified, on the law, the motion granted to the extent of dismissing any portion of the claims that might be based on the 90/180-day provision of Insurance Law § 5102(d), and otherwise affirmed, without costs.
Triable issues were presented as to whether both plaintiffs sustained serious injuries under § 5102(d) when the vehicle they were riding in was rear-ended by defendants' vehicle. Plaintiffs' medical experts and treating chiropractor raise issues of fact as to whether plaintiffs' cervical, thoracic and lumbar spinal injuries are permanent or significant, and not merely degenerative (see Morris v Cisse, 58 AD3d 455 [2009]). The defense made a prima facie showing, however, that neither of the plaintiffs missed work or was otherwise unable to perform usual and customary daily activities for at least 90 of the 180 days following the accident (see id.).
Mack v. Valfort


Baker, McEvoy, Morrissey & Moskovits, P.C. (Mead, Hecht,
Conklin & Gallagher LLP, Mamaroneck, N.Y. [Elizabeth M.
Hecht], of counsel), for appellant.
Harmon, Linder, & Rogowsky, New York, N.Y. (Mitchell
Dranow of counsel), for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Martin, J.), dated September 22, 2008, which denied his motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.
The defendant made a prima facie showing of his entitlement to summary judgment through the affirmations of his examining physicians stating that, based upon their examinations of the plaintiffs, it was their opinion that neither of the plaintiffs sustained a permanent injury, limitation, or restriction as a result of the subject accident (see Luckey v Bauch, 17 AD3d 411; Sims v Megaris, 15 AD3d 468; Check v Gacevk, 14 AD3d 586; Paul v Trerotola, 11 AD3d 441; Mastaccioula v Sciarra, 11 AD3d 434). The plaintiffs' submissions in opposition failed to raise a triable issue of fact.
With respect to the plaintiff Mahue Mack, the affirmed medical report of his treating physician, Dr. Theodore, failed to compare his findings as to the range of motion of Mr. Mack's cervical spine, lumbar spine, and shoulders to what is considered a normal range of motion (see Caracci v Miller, 34 AD3d 515). Further, with respect to the plaintiff Lateesha Mack, the affirmed medical report of the same treating physician failed to quantify any purported restrictions found in her ranges of motion (see Duke v Saurelis, 41 AD3d 770; Jacobs v Slaght, 47 AD3d 679; Bailey v Ichtchenko, 11 AD3d 419). The reports and addendum reports of Dr. Hausknecht, while reflecting certain restrictions in each plaintiff's cervical spine and lumbar spine flexion or rotation, rely, in part, upon unsworn reports of others (see Besso v De Maggio, 56 AD3d 596, 597; Matra v Raza, 53 AD3d 570; Malave v Basikov, 45 AD3d 539, 540; Verette v Zia, 44 AD3d 747, 748). Additionally, as to causation, Dr. Hausknecht failed to address the radiological evidence of Dr. Rothpearl that the magnetic resonance imaging (hereinafter MRI) study of each plaintiff was negative for disc herniations and bulges, and that the plaintiffs' MRIs instead showed the existence of multi-level disc degeneration and dessication of long-standing duration.
The parties' remaining contentions are either without merit or academic in light of our determination.
Pearson v. Guapisaca


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellant.
Newman & Okun, P.C., New York, N.Y. (Darren R. Seilback
of cuonsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Ambrosio, J.), dated September 24, 2008, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
The defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957; see also Giraldo v Mandanici, 24 AD3d 419).
In opposition, the papers submitted by the plaintiff were sufficient to raise a triable issue of fact as to whether she sustained a serious injury to her right shoulder and cervical spine under the significant limitation of use and/or permanent consequential limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident (see Williams v Clark, 54 AD3d 942; Casey v Mas Transp., Inc., 48 AD3d 610; Green v Nara Car & Limo, Inc., 42 AD3d 430; Francovig v Senekis Cab Corp., 41 AD3d 643, 644-645; Acosta v Rubin, 2 AD3d 657). The plaintiff's treating orthopedic surgeon, Dr. Howard Baum, opined in his affirmed submissions, based on his contemporaneous and most recent examinations of the plaintiff, as well as upon his review of the plaintiff's magnetic resonance imaging (hereinafter MRI) reports, which showed, inter alia, a tear in the supraspinatus tendon, a bulging disc at C2-3, and a herniated disc at C6-7, that the plaintiff's cervical and right shoulder injuries and observed range of motion limitations were permanent and causally related to the subject accident. Also, the plaintiff relied on the affirmed medical reports of Dr. Nunzio Saulle, a treating physician, which also revealed significant contemporaneous and recent range-of-motion limitations in the plaintiff's right shoulder and cervical spine.
The affirmation of Dr. Baum specifically addressed the findings of degeneration by the defendant's experts. Dr. Baum disagreed with those assertions based upon his review of the plaintiff's right shoulder and cervical spine films. Dr. Baum concluded that the tear observed in the right shoulder and the disc pathology noted in the cervical spine MRI were the result of the subject accident and not any degenerative processes as alleged by the defendant's experts.
Bush v. Robbins


Law Offices of James L. Killerlane, P.C. (David Samel, New York,
N.Y., of counsel), for appellant.
Penino & Moynihan, LLP, White Plains, N.Y. (Richard E.
Rowe, Jr., of counsel), for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nicolai, J.), entered May 6, 2008, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
Contrary to the plaintiff's contentions, the submission of an affirmed medical report of one of the defendants' orthopedists, Joseph P. Laico, was sufficient for the defendants to meet their prima facie burden of showing that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The affirmation of the plaintiff's treating physician, Michael I. Weintraub, was insufficient to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.
William Floyd Union Free School District v Wright

Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, Riverhead,
N.Y. (Gair G. Betts of counsel), for appellant-respondent.
Bond, Schoeneck & King, PLLC, Garden City, N.Y. (Howard M.
Miller of counsel), for
respondent-appellant.
Tinari, O'Connell, Osborn & Kaufman, LLP, Central Islip, N.Y.
(Frank A. Tinari of counsel), for
respondent.


DECISION & ORDER
In an action to recover damages for breach of fiduciary duty and for a judgment declaring that the plaintiff is permanently relieved of its obligation to provide postretirement insurance benefits to the defendants, the defendant Daniel C. Cifonelli appeals, as limited by his brief, from so much of an order and judgment (one paper) of the Supreme Court, Suffolk County (Whelan, J.), entered November 14, 2007, as granted that branch of the plaintiff's motion which was for summary judgment on its cause of action alleging breach of fiduciary duty insofar as asserted against him, declared that the plaintiff was relieved of its obligation to pay his insurance benefits for a period of 10 years, and denied his cross motion pursuant to CPLR 3211 to dismiss the complaint, and the plaintiff cross-appeals from so much of the same order as limited the defendants' forfeiture of insurance benefits to a period of only 10 years.
ORDERED that the order and judgment is modified, on the law, by deleting the provision thereof declaring that the plaintiff is relieved of its obligation to provide the defendants' insurance benefits for a period of 10 years and substituting therefor a provision declaring that the plaintiff is permanently relieved of its obligation to provide the defendants' insurance benefits; as so modified, the order and judgment is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the plaintiff.
The defendant James A. Wright is the former treasurer of the plaintiff William Floyd Union Free School District. In January 2006 Wright pleaded guilty to one count of grand larceny in the second degree and seven counts of offering a false instrument in the fifth degree. His plea included his acknowledgment that he stole money from the plaintiff while in the plaintiff's employ between April 4, 2000, and January 24, 2003.
The defendant Daniel C. Cifonelli is the plaintiff's former assistant superintendent for business. In January 2006 Cifonelli pleaded guilty to four counts of grand larceny in the second degree, one count of grand larceny in the third degree, and two counts of money laundering. Cifonelli's plea allocution in connection with his theft of retirement benefits from the New York State Teachers' Retirement System included an acknowledgment that although he purportedly retired as assistant superintendent of business, effective August 31, 1998, he remained employed by the plaintiff in the same capacity from September 1998 through June 2004 "under the guise" of a company called DCC Consulting, Inc. Cifonelli also testified that he remained employed by the plaintiff when he embezzled money from it between 1999 and 2001.
The plaintiff filed a complaint seeking recovery of all stolen funds, as well as any compensation it paid the defendants following their initial breaches of fiduciary duty. It also sought a declaratory judgment relieving it of its obligation to pay the defendants' health, life, and dental insurance premiums, benefits the plaintiff had previously agreed to pay upon the defendants' retirement pursuant to the terms of the defendants' employment contracts. After the plaintiff filed a motion for summary judgment, Cifonelli cross-moved pursuant to CPLR 3211 to dismiss the complaint on several grounds.
The Supreme Court determined that the defendants were collaterally estopped from litigating the issue of their liability with respect to the plaintiff's breach of fiduciary duty cause of action, and granted summary judgment to the plaintiff. It also relieved the plaintiff of its obligation to pay the defendants' insurance premiums for 10 years, and denied Cifonelli's cross motion.
On appeal, Cifonelli contends that the doctrine of collateral estoppel does not apply to the issue of whether his 1993 employment contract with the plaintiff, which included a provision that "the terms and conditions of employment stated herein shall remain in full force and effect for as long as [Cifonelli] remains employed by the [plaintiff]," was still in effect when he committed his larcenous acts. This contention is without merit. In connection with his plea of guilty, Cifonelli testified under oath that he remained in the plaintiff's employ until 2004 following his sham retirement in August 1998. "Collateral estoppel effect will be given to issues necessarily decided in prior criminal actions, including those which terminate in judgments based on pleas of guilty" (Colby v Crocitto, 207 AD2d 764, 765). The issue of Cifonelli's employment status was material to and decided in the prior criminal action, and is critical to the instant action. Moreover, there is no evidence that Cifonelli was denied a full and fair opportunity to contest this point. Accordingly, Cifonelli is collaterally estopped from disputing his employment status between 1998 and 2004 (see S.T. Grand, Inc. v City of New York, 32 NY2d 300, 304; Colby v Crocitto, 207 AD2d at 765).
Moreover, the Supreme Court properly determined that the defendants' pleas of guilty to grand larceny in the second degree and other crimes established the plaintiff's entitlement to judgment as a matter of law on its breach of fiduciary duty cause of action (see American Map Corp. v Stone, 264 AD2d 492, 492-493; Luskin v Seoane, 226 AD2d 1144).
The Supreme Court erred, however, in limiting the defendants' forfeiture of insurance benefits to a period of 10 years. Where, as here, defendants engaged in repeated acts of disloyalty, complete and permanent forfeiture of compensation, deferred or otherwise, is warranted under the faithless servant doctrine (see Feiger v Iral Jewelry, 41 NY2d 928; Matter of Blumenthal [Kingsford], 32 AD3d 767, 768; American Map Corp. v Stone, 264 AD2d at 492-493; Soam Corp. v Trane Co., 202 AD2d 162, 163-164).
The defendants' remaining contentions are without merit.
SKELOS, J.P., SANTUCCI, DICKERSON and ENG, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court

Pioneer Tower Owners Association v State Farm Fire & Casualty Company



Stuart M. Bodoff, for appellants.
Lawrence A. Kushnick, for respondent.
New York Insurance Association, Inc. et al., amici
curiae.

SMITH, J.:
Plaintiff seeks recovery under an insurance policy for damage to its building that resulted from an excavation on an adjacent lot. We hold that policy exclusions for "earth movement" and "settling [or] cracking" did not unambiguously remove this event from the policy's coverage.
I
Plaintiff is the owner of a condominium apartment building. After cracks began appearing in the building, a structural engineer was called in. He found a number of cracks, separations and open joints, and concluded that they were caused by work that was in progress on the lot next door. That lot was being excavated, and underpinning had been built to protect the foundation of plaintiff's building. The engineer concluded, and it is undisputed in this case, that the underpinning was flawed, and that as a result earth slid away beneath plaintiff's building, causing damage.
Plaintiff submitted a claim for the damage to defendant State Farm Fire & Casualty Company (defendant), which had insured the building against "accidental direct physical loss." Defendant disclaimed coverage, relying on the "earth movement" exclusion in its policy, which says:
"We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: (a) the cause of the excluded event; or (b) other causes of the loss; or (c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss.
...
"b. earth movement, meaning the sinking, rising, shifting, expanding or contracting of earth, all whether combined with water or not. Earth movement includes but is not limited to earthquake, landslide, erosion, and subsidence but does not include sinkhole collapse.
"But if accidental direct physical loss by fire, explosion other than explosion of a volcano, theft or building glass breakage results, we will pay for that resulting loss."
Plaintiff brought this action to recover for its loss. In litigation, defendant and amici supporting it rely not only on the earth movement exclusion but on several others, of which we think only one requires discussion. That exclusion, the settling or cracking exclusion, says:
"We do not insure for loss either consisting of, or directly and immediately caused by, one or more of the following:
....
"f. settling, cracking, shrinking, bulging or expansion.
"But if accidental direct physical loss by any of the 'Specified Causes of Loss' or by building glass breakage results, we will pay for that resulting loss."
None of the "Specified Causes of Loss" — a 14 item list, including fire, windstorm and water damage among other things — is present in this case.
On cross motions for summary judgment, Supreme Court ruled in plaintiff's favor on the issue of liability. After a stipulation as to the amount of damages, Supreme Court entered judgment for plaintiff. The Appellate Division modified the judgment to add a declaration in plaintiff's favor, and otherwise affirmed. We granted leave to appeal, and now affirm.
II
The law governing the interpretation of exclusionary clauses in insurance policies is highly favorable to insureds. We said in Seaboard Sur. Co. v Gillette Co. (64 NY2d 304 [1984]):
"[W]henever an insurer wishes to exclude certain coverage from its policy obligations, it must do so in clear and unmistakable language. Any such exclusions or exceptions from policy coverage must be specific and clear in order to be enforced. They are not to be extended by interpretation or implication, but are to be accorded a strict and narrow construction. Indeed, before an insurance company is permitted to avoid policy coverage, it must satisfy the burden which it bears of establishing that the exclusions or exemptions apply in the particular case, and that they are subject to no other reasonable interpretation."

(Id. at 311 [citations and internal quotation marks omitted; see also Cone v Nationwide Mut. Fire Ins. Co., 75 NY2d 747, 749 [1989] [exclusions from coverage "construed strictly against the insurer"]; Breed v Insurance Co. of N. Am., 46 NY2d 351, 353 [1978] ["ambiguities in an insurance policy are to be construed against the insurer, particularly when found in an exclusionary clause"].) We have enforced policy exclusions only where we found them to "have a definite and precise meaning, unattended by danger of misconception ... and concerning which there is no reasonable basis for a difference of opinion" (Breed, 46 NY2d at 355).
This case is a close one, but we cannot say that the event that caused plaintiff's loss was unambiguously excluded from the coverage of this policy.
Defendant's argument is, in substance, that the literal language of the exclusions describes what happened here. The earth movement exclusion applies, defendant says, because the loss was caused by the movement of earth, and specifically by its "sinking" and "shifting" beneath plaintiff's building. And the settling or cracking exclusion applies, in defendant's view, because the loss consisted of cracking that was directly and immediately caused by the settling of the building (which was in turn caused by the excavation). Indeed, plaintiff's own engineer's report says "that the left wing of the building ... had settled ... as evidenced by the cracking and lateral displacement of the structure."
Plaintiff argues, however, that a literal reading of the words does not give the meaning that an ordinary reader would assign to these exclusionary clauses. As to the earth movement exclusion, plaintiff stresses the examples of earth movement given in the policy — "earthquake, landslide, erosion and subsidence." Plaintiff argues that an excavation — the intentional removal of earth by humans — is a different kind of event from an earthquake and the other examples given; plaintiff suggests that, when specific examples are mentioned, those not mentioned should be understood to be things of the same kind. Indeed, if the drafter of the policy intended to bring excavation — an obvious and common way of moving earth — within the exclusion, why was it not listed as an example while less common events were listed?
Similarly, plaintiff argues that the settling or cracking exclusion would not be thought, by an ordinary reader, to apply to settling or cracking that is the immediate and obvious result of some other event, such as the intentional removal of earth in the vicinity of the building. Read literally, the exclusion would apply, for example, where a refrigerator fell over and cracked a wall, but that can hardly have been the intent of the policy's drafters.
We conclude that both plaintiff's and defendant's readings of the clauses are reasonable. Our precedents require us to adopt the readings that narrow the exclusions, and result in coverage. As to the earth movement exclusion, our holding is also supported by precedent which, though not binding on us, is directly on point. Two Appellate Division cases and one federal district court decision have held that earth movement exclusions using identical language are not applicable to losses caused by excavation (Lee v State Farm Fire & Cas. Co., 32 AD3d 902 [2d Dept 2006]; Burack v Tower Ins. Co. of N.Y., 12 AD3d 167 [1st Dept 2004]; Wyatt v Northwestern Mut. Ins. Co. of Seattle, 304 F Supp 781 [D Minn 1969]). The parties have cited no case, and we have found none, applying the earth movement exclusion to intentional earth removal.
DeJesus v. Paulino


Baker, McEvoy, Morrissey & Moskovitz, P.C., New York
(Stacy R. Seldin of counsel), for appellants.
The Edelsteins, Faegenburg & Brown, LLP, New York (Evan
M. Landa of counsel), for Jose DeJesus and Eric Martinez,
respondents.
Buratti, Kaplan, McCarthy & McCarthy, Yonkers (Debra A.
Kellman of counsel), for Solanny Paulino and Louis Moreno,
respondents.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered August 22, 2008, which, to the extent appealed from, denied the motion of defendants Nunez and Brickyard for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed as against all defendants. The Clerk is directed to enter judgment accordingly.
This action for personal injuries arose out of a motor vehicle accident that occurred on April 8, 2004 on Sedgewick Avenue near its intersection with Hall of Fame Road in the Bronx. Plaintiffs allege they each sustained injuries to the cervical and lumbar spine, and plaintiff DeJesus also alleges an injury to his knee.
Nunez and Brickyard moved for summary judgment dismissing the complaint on the grounds that neither plaintiff sustained a "serious injury" as defined in Insurance Law § 5102(d). In support of that motion, they submitted a report by Dr. Tariq Yousef, a neurologist who conducted several tests on each plaintiff's cervical and lumbar spine. These tests found each plaintiff's range of motion to be normal, and Dr. Yousef concluded that each plaintiff could work and perform normal activities without restriction. This conclusion was supported by the underlying data revealed in those tests. Dr. Yousef reviewed each plaintiff's bill of particulars prior to conducting these tests; he did not, however, review their MRIs or other medical records.
Also submitted in support of the motion was the report of Dr. Wayne Kerness, an orthopedic surgeon who examined DeJesus. Dr. Kerness also conducted range of motion tests to this plaintiff's cervical and lumbar spine and found them to be within a normal range. Further objective tests led him to conclude that DeJesus also had full range of motion in his knees. Dr. Kerness opined that DeJesus was able to carry out his daily activities without restrictions, and that there was no permanency of any of the claimed injuries. As with Dr. Yousef, Dr. Kerness did not review DeJesus's MRI or medical records, but only the bill of particulars.
The report of Dr. Audrey Eisenstadt, a radiologist, was also submitted. Dr. Eisenstadt reviewed Martinez's lumbar and cervical MRI films. She found indications of "pre-existing, degenerative disease" in Martinez's lumbar region which "could not have occurred in the time interval between examination and injury." She also found no recent or post-traumatic changes in Martinez's cervical spine.
In response was submitted the affirmation of Dr. Benjamin Cortijo, Jr., who had examined both plaintiffs on April 12, 2004, four days after the accident, finding limitations in the range-of-motion tests performed on their lumbar and cervical spine. After examining both plaintiffs approximately four years later, he again found limitations in the range of motion tests of their cervical and lumbar spines.
Plaintiffs also submitted reports by Dr. David H. Stemerman, who conducted cervical and lumbar MRIs on both plaintiffs, revealing herniations and disc bulges.
The IAS court denied the summary judgment motion, finding that the moving defendants failed to meet their initial burden of proof by showing that plaintiffs had not suffered a serious injury. The court further stated that assuming, arguendo, defendants had met their burden, plaintiffs' medical proof was sufficient to raise a triable issue of fact.
Contrary to the finding of the IAS court, the moving defendants sustained their prima facie burden. Notwithstanding their failure to review plaintiffs' medical records, defendants' experts detailed the specific objective tests used in their personal examinations, as well as the underlying data from those tests, to show full range of motion (Day v Santos, 58 AD3d 447 [2009]) and, as to Martinez, the degenerative condition in his lumbar spine. It was sufficient that defendants' radiologist reviewed plaintiffs' MRI films. Moreover, the reference to plaintiffs' proof and deposition testimony sufficiently refuted the 90/180 day allegation of serious injury (see Rivera v Gelco Corp., 58 AD3d 477 [2009]).
Taken as a whole, defendants' submissions were sufficient to meet their initial burden and thus shift the burden to plaintiffs, who failed to carry that burden in several respects. The unsworn emergency room records and other reports had no probative value (Black v Regalado, 36 AD3d 437 [2007]. Plaintiffs submitted insufficient objective medical evidence to support their 90/180-day claim. Their deposition testimony about inability to play sports or mop floors was not supported by
objective medical evidence (see Nelson v Distant, 308 AD2d 338, 340 [2003]).
With respect to plaintiff Martinez, the medical submissions failed to address sufficiently the allegations that his lumbar injuries were the result of degenerative disease (Reyes v Esquilin, 54 AD3d 615 [2008]). With respect to both plaintiffs, bulging or herniated discs are not, in and of themselves, evidence of serious injury without competent objective evidence of the limitations and duration of the disc injury (Pommells v Perez, 4 NY3d 566, 574 [2005]; Toulson v Young Han Pae, 13 AD3d 317, 319 [2004]). That objective evidence was not submitted here.
Dr. Cortijo's reports contained the objective tests conducted and the data underlying their results, both as to his examinations four days after the accident and approximately four years later with respect to both plaintiffs' lumbar and cervical condition. However, the affirmations submitted by plaintiffs' medical providers in opposition to the summary judgment motion did not address the findings made by the defense witnesses. Moreover, DeJesus did not produce any evidence to rebut the finding that he had full range of motion in his right knee. In response to Dr. Kerness's finding of a normal range of motion after examining DeJesus, Dr. Cortijo affirmed that on the later examination, DeJesus had positive compression, positive straight leg raising and "motor strength of the right knee 4/5, and right ankle 4+/5 dorsiflexion." None of the underlying data or the names of the tests utilized to arrive at this determination were mentioned. In short, DeJesus failed to address directly Dr. Kerness's finding of normal range of motion, thus leaving no triable issue of fact with respect to his knee condition.
Although the record is unclear as to whether defendants Paulino and Moreno filed a notice of appeal, we grant summary judgment in their favor as well "because, obviously, if plaintiff[s] cannot meet the threshold for serious injury against one [set of] defendant[s, they] cannot meet it against the other" (Lopez v Simpson, 39 AD3d 420, 421 [2007]).