Dear Coverage Pointers Subscribers:


We hope you had a very enjoyable Mothers Day and that your spring plantings are beginning to take root.  It was a powerfully busy couple of weeks, with plenty of interesting decisions in this week's issue.  Happy reading.  For our new subscribers, remember that you're reading the cover letter of this week's issue.  The "real issue" is attached.

LinkedIn:
Remember, the interactive VOICE of Coverage Pointers in the New York Insurance group in LinkedIn which yours truly has founded and moderates.  Come visit us there and participate: http://www.linkedin.com/groups?gid=1777061.


Tree Alert.  Tree Alert:
Because of the quantity of appellate decisions over the past two weeks and the verbosity of our courts, this week's issue exceeds 100 pages in length.  I'd suggest not printing it, unless you have an unlimited supply of paper and no regard for trees.  If you want to read the substantive summaries, print out pages 1-22 only. 


Welcome Aboard New Subscribers:
Kathy Fijal and I presented at a NYS Bar Association conference on "additional insured" issue and then Kathy and Audrey did a little training at a claims office this week on No Fault and "cooperation" issues.  We welcome about 30 new subscribers who have joined us as a follow-up to those presentations. 


This Week's Issue:
One of the great debates raging within the First Department is whether notice given by one liability carrier to another of an accident, claim or lawsuit triggers the receiving carrier's obligation to disclaim promptly.  If carrier tenders accident or suit information, does the carrier placed on notice have a duty under the Insurance Law to send out a disclaimer?  Read the J.T. Magen case decided Thursday, yesterday, at the top of the issue.


One Hundred Years Ago Today
I know how many of you enjoy my historical offerings; I get more feedback on those, sometimes, than on anything else in the issue.  This week, I offer you a special treat - an opportunity to learn about a father, a grandfather and a man who was committed to his profession, his state and his nation, J. Caleb Boggs. 
Some of you may not remember, J.C. Boggs (and frankly, I didn't know a great deal about him), but I happened to discover this very interesting and generous man was born 100 years ago today.  The US Senator from Delaware for two terms, and a very popular one, he lost his seat to Joe Biden by fewer than 3200 votes, in the 1972 election.
I tracked down his grandson, a Washington D.C. lawyer, J.C. Boggs, a distinguished partner in the firm of Blank Rome LLP, and I asked him to offer some thoughts on his grandfather's legacy.  He was delighted to do so and on your behalf, I thank him for offering this remembrance.  Raise a glass, if you would, to J. Caleb Boggs today and wish him a happy birthday:


J. Caleb Boggs of Delaware - Gentleman, Lawyer, Public Servant
Authored by J.C. Boggs
J. Caleb Boggs was born in Kent County, Delaware on May 15, 1909 . He earned a degree from the University of Delaware in 1931, and married his high school sweetheart, Elizabeth "Bess" Muir that same year.  He then earned a law degree from Georgetown University Law School in 1937, and after being admitted to the bar, practiced law in Dover, Delaware.
During World War II, Cale Boggs served in the army with distinction, fighting with the 6th Armored Division in Normandy, the Rhineland , the Ardennes and central Europe . He earned a number of honors and awards, including five campaign stars, the Legion of Merit, the Croix de Guerre with palm, and the Bronze Star with cluster.
Upon his return from the war, Cale was appointed a judge in the family court of New Castle County, Delaware.  He was soon recruited to run for Congress and was elected to the U.S. House of Representatives in 1947, where he served for three terms. 
Cale was then elected Governor of Delaware, where he was able to calm troubled waters during periods of great racial strife in Wilmington.  By blending the leadership skills he developed in the Army, with the sense of fairness and equity he acquired as a judge, Cale became one of the State's great conciliators.  Upon serving two terms as Governor of Delaware, Cale was elected to the U.S. Senate, where he served another two terms. 
By all accounts, Cale Boggs was a man of warm humanity and a gentleman who sought ever to set people at ease through his common touch and deep consideration of other people's feelings.  You respected him for his intellect, you admired him for his clarity of thinking and his fairness, but you had that sense of warmth, that feeling of 'I like him.'  As one of his Senate colleagues remarked, "Cale Boggs was a man whose friendship one easily sought and, once secured, was long treasured." 
Cale was known to be a gentleman in all circumstances.  He was pleasant, he was positive; he was one who held strong convictions, but did not advance his convictions at the cost of tearing down the opposition or the people who may have disagreed with him. As then-Senator Biden remarked on the Senate floor shortly after his passing:  "J. Caleb Boggs set a standard for all of us who serve in public life. Cale was the quintessential gentleman.  He set a standard that all of us are trying to repair to; most of us, like me, do not achieve that standard as well as we would like to."
Thanks JC and Happy Birthday Senator Boggs.


Peiper's Perspective on Property and Potpourri
Here are Steve's words:
Greetings.  As Spring inches along toward Summer, let us help you break the mundane.  Don't forget that we offer training programs on a variety of issues, including homeowners' and business owners' first party claims.  We'll even bring the coffee!!

As always, we've got interesting decisions a plenty in this issue.  Check out the Court of Appeals' latest attempt to wrestle with the presumption against suicide, and the policy defenses available under a Life Insurance policy.  Also of note, the Second Department rules that the act of procuring an insurance policy through a New York broker opens a company to New York 's long arm statute.  The First Department upholds the long standing rule that anything that occurs prior to the disclaimer being issued is subject to discovery.  Finally, for the potpourri lovers and products liability lovers, check out the Court of Appeals' holding in Passante, which may result in a manufacturer being held liable for the buyer's decision to forgo offered safety devices.  A head scratcher for sure, as Judge Smith eloquently points out. 

That sums it up for me this week.  Best wishes until next issue.

Steve Peiper
[email protected]

Earl's Pearls
 
Earl Cantwell writes today about a lawsuit against (egads) lawyers commenced by people other than clients.  Oh my.
Today's Highlights and Headlines

  • Split Court holds that Notice Given by One Carrier - on behalf its Insureds - to Another Requires Prompt Disclaimer (Barely) Distinguishing Cases that Held that Notice Given by One Carrier - on its Own Behalf) - to Another Carrier Does Not Require Prompt Disclaimer
  • Timing is Everything.  Policy Canceled Retroactive to Time Earlier in Day, Does Not Provide Coverage for Accident that Occurs Later in the Day
  • "Other Insurance" Clauses Applied as Written
  • The Insured's Notice was Late - and Unexcused -- and the Injured Parties Did Not Exercise Their Right to Give Notice
  • Collision Carrier Liable for Negligent Inspection?
  • Read the Policy.  You Weren't Uninsured
  • Can "Owned Property" Exclusion be Circumvented by Claim that Insured had to Clean Up its' Property to Protect Adjoining Property?  Only in Dire Emergency
  • Anti-subrogation Rules Precludes Recovery of Half the Proceeds of Settlement
  • Non-Owned Coverage is Excess of Owner's Policy
  • Framed Issue Hearing in Underinsured Motorist Matter will Resolve Questions of Intentional Conduct, Passenger Status of Claimant and whether Injuries were Resulted from Scuffle
  • In Construction Case, a Lack of Proof of Negligence on the Part of Contractor Precludes Summary Judgment on Contractual Indemnification Claim
  • In UM Proceeding, Physical Contact Only Required in Hit & Run
  • What's in a Name? To be a Named Insured, One Must be Named as a Named Insured.

 

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

  • Plaintiff Missed 3 Months of Work Immediately Following the Accident but Fails to Establish Claim Under the 90/180-Day Category
  • Where the Plaintiffs are Young, the Defendants' Claim That MRI Findings are Due to Degenerative Changes Requires "Further Elaboration"
  • Plaintiff's Deposition Testimony Undermines 90/180-Day Claim
  • Physician's Statements to Plaintiff that She sad Reached Maximum Medical Improvement and That Further Treatment Would Be Merely Palliative Adequately Explain Gap in Treatment
  • Chiropractor's Submissions Must Be Either Subscribed Before a Notary or in Affidavit Form
  • Chiropractor's Submissions Not in Affidavit Form have No Probative Value
  • Another Case of Misplaced Reliance
  • A Recent Examination Must Support Claims Under the Significant Limitation of Use and/or the Permanent Consequential Limitations of Use Categories
  • Range-of-Motion Reports Must Compare the Findings with What is Normal
  • The Failure to Meet the Prima Facie Burden Obviates the Need to Consider the Opposing Papers
  • Failure of Treating Neurologist to Reconcile Findings in His Own Reports Dooms the Plaintiff's Claim
  • An Example of When Not to Waste Your Time and Money
  • "Perfunctory" Claims of Unspecified Clerical Inadvertence and Reassignment of Counsel Are Not Good Cause For Delay in Filing Summary Judgment Motion
  • Affirmed Quantified Range-of-Motion Findings from Treating Physician Raises Triable Issues of Fact

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

On hiatus this week.  Hope you feel better, Audrey .


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

 
Of Property

  • The Issue of Suicide is Not an Issue of Law, but Usually an Issue of Fact that Must be Weighed against all of the Factors Presented at Trial
  • Subrogation Rights do not Ripen until Payment is made  

and Potpourri  

  • Subpoena for an Investigation File was Proper where Carrier could not Establish it was Prepared Solely in Anticipation of Litigation.
  • Court finds a Question of Fact over Whether a Machine was Inherently Dangerous Where the Buyer Specifically Rejected Safety Equipment
  • Engaging the Assistance of a New York Insurance Broker is Sufficient Contact to Trigger Long Arm Jurisdiction

Thanks to all for the regular and positive feedback.

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]

5/14/09            JT Magen v. Hartford Fire Insurance Company
Appellate Division, First Department
Split Court Holds that Notice Given by One Carrier – on behalf its Insureds – to Another Requires Prompt Disclaimer (Barely) Distinguishing Cases that Held that Notice Given by One Carrier – on its Own Behalf) – to Another Carrier Does Not Require Prompt Disclaimer 
Seifert when he tripped and fell on July 4, 2004, at a construction site owned by the New York City Industrial Development Agency (IDA) and Magen David Yeshiva (“Yeshiva”). The owners hired plaintiff JT Magen as their construction manager (“JT”) and JT hired Erath as a subcontractor. Seifert worked for Erath.
Erath agreed to hold Yeshiva harmless for personal injuries arising out of Erath's work and provide liability coverage of no less than $4 million, naming Erath, Yeshiva and IDA as additional insureds. Hartford issued that policy and JT had its own coverage with Travelers.
On May 7, 2005, Seifert commenced a personal injury action against all three (IDA, Yeshiva and JT). JT notified Travelers of the occurrence. Six weeks later, Travelers advised Hartford of the underlying action and requested that Hartford defend and indemnify plaintiff, IDA and the Yeshiva as additional insureds under the policy Hartford had issued to Erath. Hartford asked for more information, including the pleadings, and then 51 days later, denied on “late notice” of the occurrence.
JT commenced this DJ action seeking a declaration that Hartford owed it, IDA and Yeshiva, defense and indemnity under the policy.  When Hartford moved for summary judgment, JT argued that Hartford’s disclaimer was late.  Hartford countered that the provision of the insurance law that requires prompt disclaimer, 3420(d), does not apply because this was a tender by an insurer, not an insured or injured party.  
The Appellate Division held that the tender letter insurer Travelers wrote on behalf of plaintiff and others to insurance carrier Hartford — asking that their mutual insureds be provided with a defense and indemnity, as additional insureds under the policy issued to Erath — fulfills the policy's notice-of-claim requirements so as to trigger the insurer's obligation to issue a timely disclaimer pursuant to Insurance Law § 3420(d). 
The Court distinguished the Bovis Lend-Lease v. Royal Surplus Lines case (reported in Coverage Pointers Volume 7, No. 12), a case which held that 3420(d) does not apply to inter-company notices.  Here, the Court held that the insurer was not just seeking reimbursement but was acting on behalf of the insureds, seeking coverage directly.
The Court found that Hartford had no excuse for the late disclaimer and therefore had waived it right to do so.  Justice Tom, dissenting, argued that notice received from a third party does not fulfill the insurance policy's notice requirement and thus does not implicate the insurer's parties in the underlying action.
Editor’s Note:  How thin can the Court cut the salami?  Whenever a carrier seeks contribution, whether it is primary, co-primary or otherwise, isn’t it always seeking coverage both for itself and its insureds?  Should that be the distinguishing factor in whether or not an insurer needs to respond promptly?  The Court of Appeals (or the Legislature) should step in and clarify. Only one justice dissented so there is no automatic right to review by the Court of Appeals.
5/12/09            2-10 Jerusalem Avenue Realty, LLC v. Utica First Insurance Company
Appellate Division, Second Department
Timing is Everything.  Policy Canceled Retroactive to Time Earlier in Day, Does Not Provide Coverage for Accident that Occurs Later in the Day
The tenant met with its insurer’s agent on 2/24/06, during the day, and signed a writing requesting a retroactive cancellation of the policy effective 12:01 AM that day, several hours earlier.  As fate would have, unknown to the agent or the tenant, an accident had occurred sometime after 12:01 but before the cancellation. The owner, apparently an additional insured under the policy, argued that since the policy permits cancellation only as of a "future date" specified in a written notice, and since the written notice here did not specify a date in the future, the cancellation could not have been effective, under the "midnight rule" until at least the day after the accident.
The policy requirement that cancellation request by insured be in writing is for benefit of insurer and may be waived by insurer and is designed so that an insured cannot wait until after a policy period has expired without a loss, and then seeks an earlier cancellation. Court finds cancellation effective 12:01 a.m. on February 24.
5/12/09            Sport Rock Intl., Inc. v American Cas. Co. of Reading, PA
Appellate Division, First Department
“Other Insurance” Clauses Applied as Written
Two policies provided primary coverage to the insured for products claims, with competing “other insurance” clauses.
The underlying claim was a products liability case involving Anaya.  He was injured while using artificial rock-climbing equipment at a fitness club sold to the club by Sport Rock (“Sport”).  Sport had incorporated a safety harness manufactured by Petzl in its equipment.  Sport and Petzl were sued on two theories: the Petzl harness was defective in design and that proper warnings were not included by Petzl.
Sport purchased a CGL policy from Evanston and was also listed as an additional insured under a Petzl purchased policy issued by American Casualty (“American”).  Sport enjoyed AI status under the American policy by virtue of a Vendor’s Endorsement
There were “dueling” other insurance clauses.  The Evanston policy provided that its coverage was excess of any other “valid and collectible insurance available to the insured as an additional insured under a policy issued to a manufacturer or distributor for products manufactured, sold, handled or distributed."  The Petzl policy provided only the usual “pro rata” language.
American acknowledged coverage under the vendor’s endorsement but claimed that some of the claims against Sport fell outside of its coverage and therefore it was entitled to contribution from Evanston in the defense, e.g. claims that Sport Rock negligently installed the wall-climbing system and that features of the wall-climbing system.
Sport Rock, as an additional insured under the policy American issued to Petzl, is entitled to a complete defense from American in the Anaya action.
Editor’s Note:  A very scholarly decision, the three judge majority and two concurring judges debated over the recent decision by a different panel of the same court in Fieldston Property Owners (/news/coverage-pointers-volume-x-no-18).  There, two carriers, a CGL carrier and a D&O carrier were both required to defend claims, one covered by one policy and the other claims by the other. We agree with the concurring judges that Fieldston required a different analysis because “unlike the circumstances here the two policies did not insure against the same risks, rendering inapplicable the settled law regarding two primary insurance carriers covering the same risk.

The court correctly held that this case was no different that Harleysville v. Travelers, our case at the Fourth Department, reported: /news/coverage-pointers-volume-viii-no-19 .
5/5/09              Sputnik Restaurant Corp. v. United National Insurance Company
Appellate Division, Second Department
The Insured’s Notice was Late – and Unexcused -- and the Injured Parties Did Not Exercise Their Right to Give Notice

The insurer was notified of the accident approximately 11 months after it occurred.  The insured had no excuse for the lateness of the notice.  An injured party has an independent right to give notice to an insurer but the injured parties did not exercise their right to timely notify United of their claim.

5/5/09              Ayers v. Allstate Insurance Company
Appellate Division, Second Department
Collision Carrier Liable for Negligent Inspection?
The policyholder claimed that he suffered economic loss as a result of the negligent inspection of his truck which had been damaged in an accident.  Allstate had inspected the vehicle and recommended that it be repaired, rather than declared a total loss.  The plaintiff contended that if the defendant had properly declared the vehicle a total loss upon its original inspection he could have avoided certain losses, including loss of business and the cost of repairs and of obtaining replacement vehicles during the months while his vehicle was being repaired.
Editor’s Note:  Troubling case.  Doesn’t this sound a little bit like Bi-Economy?

5/5/09              Knight v. Motor Vehicle Accident Indemnification Corporation
Appellate Division, Second Department
Read the Policy.  You Weren’t Uninsured
Knight filed a claim with MVAIC, asserting that he was operating a motorcycle owned by Wilson, that had liability insurance but did not have UM or No Fault benefits.  The court held that Knight was not qualified for MVAIC benefits because motorcycles, like cars, are required to have UM coverage.  Interestingly, the court did not discuss the absence of coverage for No Fault benefits under the motorcycle policy, which was likely the case.

5/5/09              Castle Village Owners Corp v. Greater New York Mutual Ins. Company
Appellate Division, First Department
Can “Owned Property” Exclusion be Circumvented by Claim that Insured had to Clean Up its’ Property to Protect Adjoining Property?  Only in Dire Emergency
Plaintiff’s perimeter wall collapsed causing debris to fall onto adjacent property.  It was insured by Greater NY Mutual (GNY) with an umbrella policy through from American International
Specialty Lines Insurance Co. (AISLIC), in the amount of $50,000,000 per occurrence. In pertinent part, however, the AISLIC policy excluded coverage for:

"property you own, rent, or occupy, including any costs or expenses incurred by you, or any other person, organization or entity, for repair, replacement, enhancement, restoration or maintenance of such property for any reason, including prevention of injury to a person or damage to another's property;"
The City of New York issued an emergency declaration, which required certain immediate remediation steps, including the removal of debris and, to protect others, the removal or stabilization of the remaining parts of the wall. The insured was advised that if the insured failed to remedy the problem, “the City will perform the necessary work and seek to recover its expenses from you."  And so the City did, thereafter billing Castle Village in an amount in excess of $2,000,000.  The insured then entered into contracts with others to do other protective work.
GNY exhausted its primary policy.   ASLIC agreed to defend but relied on the “owned property exclusion” claiming it had no obligation to indemnify.  
Castle Village argued that as a result of the emergency declaration, it was legally obligated to comply with the City's demand and perform the remediation work at issue, including repair of its own property. It reasons that since the policy affords coverage for sums the insured is obligated to pay as a result of liability imposed by law, the effect of the emergency declaration was to render inapplicable the "owned property" exclusion, since the emergency declaration required it to repair the wall.
The court holds that test for determining whether the exclusion applies must focus on the nexus between the condition of the insured's property and the existence of ongoing and immediate harm to the property of others. Where the harm cannot be cured without performing work on the insured's property, the exclusion is not applicable. On the other hand, in cases like this, where the immediate danger has been corrected, the restorative work to the insured's property will not be covered.
Castle Village also argues that AISLIC should be estopped from asserting the "owned property" exclusion because it allegedly delayed in disclaiming coverage, and its participation in the settlement of the City's monetary claim somehow led Castle Village to rely on those negotiations to its detriment.
Although a reservation of rights letter by itself has no relevance to the question of timely notice of disclaimer, the letter specifically advised that coverage was excluded for owned property, and effectively conveyed a coverage position which put Castle Village on notice that the costs of restoration would not be covered.  It was a partial disclaimer.  The court missed the fact that the Insurance Law does not require prompt disclaimer is property damage lawsuits.
5/5/09              AIU Insurance Company v. Nationwide Mutual Insurance Company
Appellate Division, First Department
Anti-subrogation Rules Precludes Recovery of Half the Proceeds of Settlement
AIU insured owner and subcontractor that employee construction worker killed in accident, under a wrap-up policy.  Nationwide insured same subcontractor for workers compensation and employers liability.  Decedent’s wife was granted summary judgment against owner of construction site and at AIU’s insistence, owner commenced third-party action against subcontractor (deceased employee’s employer). Plaintiff then settled the main action after a trial on damages was held, and the employer was not involved in either the trial or the subsequent settlement. AIU cannot force Nationwide to reimburse it for half of the settlement costs of the main action. Although the third-party action did not go forward after the settlement of the main action, the anti-subrogation rule would have required its dismissal, and thus any attempt by plaintiff, after having paid the settlement, to obtain reimbursement from a co-insurer must fail (National Cas. Co. v State Ins. Fund, 227 AD2d 115, 116-117 [1996], lv denied 88 NY2d 813 [1996]).

5/5/09              Eveready Insurance Company v. Illinois National Insurance Company Appellate Division, First Department
Non-Owned Coverage is Excess of Owner’s Policy
Eveready’s insured delivered pizzas for Dominos and Illinois National provided non-owned coverage to Dominos.  Under the plain reading of the “other insurance” clauses, the delivery, "other insurance" clause of Illinois’s policy limits its policy to "excess" coverage where a covered accident involves a vehicle not owned by its insured, Dominos Pizza.

4/28/09            In the Matter of American Protection Insurance Company v. DeFalco
Appellate Division, Second Department
Framed Issue Hearing in Underinsured Motorist Matter will Resolve Questions of Intentional Conduct, Passenger Status of Claimant and whether Injuries were Resulted from Scuffle
DeFalco, a police officer, chased a car driven by Bell.  Bell pulled her car over then put her vehicle into reverse, striking the front of DeFalco’s patrol car.  DeFalco claimed he was injured.  He sued Bell, settled the action with her and then filed a claim for underinsured motorist benefits (SUM) from American Protection, the insurer of the patrol car. American sought a permanent stay of arbitration, claiming that Bell’s act may have been deliberate and thus the injuries did not arise out of an accident. American also argued that there was an issue of fact as to whether DeFalco's injuries arose from the "use and operation" of an underinsured motor vehicle, as opposed to a post-collision scuffle or altercation with Bell in the course of her arrest, and whether DeFalco was "occupying" the vehicle when he was injured.
American presented sufficient proof to justify a “framed issue” hearing on all three of these “arbitrability issues.”
Editor’s Note:  Once again, as we’re reminded you before, issues relating to entitlement to UM/SUM benefits must be resolved by an application to stay arbitration to be filed within 20 days of arbitration demand.  They cannot be resolved in arbitration.
4/28/08            Bryde v. CVS Pharmacy
Appellate Division, Second Department
In Construction Case, a Lack of Proof of Negligence on the Part of Contractor Precludes Summary Judgment on Contractual Indemnification Claim
In 2003 the Jato entered into a construction contract with the defendants CVS under which Jato was to build a CVS Pharmacy. The contract required Jato to obtain an insurance policy naming CVS as an additional insured, and included an indemnification clause, obligating Jato to "defend, indemnify and hold harmless CVS . . . from and against all claims, damages, losses and expenses . . . arising out of or resulting from . . . any negligence or tortious act or omission" on its part in the construction process.
Two years later, the plaintiff commenced this action against CVS and Jato, claiming that she was injured in a slip-and-fall caused by the negligent design and installation of a handicapped access ramp.  CVS cross-claimed against Jato seeking common-law contribution as well as contractual indemnification.
The Second Department found a question of act as to whether the accident arouse out of Jato’s negligent design or construction. It would also have been premature for the court to have granted that branch of CVS's motion which was for summary judgment on so much of the contractual indemnification claim as sought the provision of a defense by Jato since Jato "is not an insurer and its duty to defend is no broader than its duty to indemnify," which has yet to be established (Brasch v Yonkers Constr. Co., 306 AD2d 508, 510-511; see Rodriguez v Savoy Park Assoc. Ltd. Partnership, 304 AD2d at 739; Cannavale v County of Westchester, 158 AD2d 645, 646-647).
The claim that Jato failed to provide insurance as required in the contract is dismissed for lack of proof that insurance was to be provided and that it was not.
4/28/09            In the Matter of Travelers Indemnity Company v. Panther
Appellate Division, Second Department
In UM Proceeding, Physical Contact Only Required in Hit & Run
On July 4, 1996, Panther, insured by Travelers, was involved in a car accident with a car owned and operated by Marshall.  The other car was owned and operated by Elvis Marshall and insured by Eagle. Unfortunately Eagle was declared insolvent in 2006.  Eleven years after the accident, in May 2007, Panther made a demand upon Travelers for arbitration of his claim for uninsured motorist benefits on the ground that Eagle was insolvent. Travelers commenced this proceeding to permanently stay arbitration. The Supreme Court temporarily stayed arbitration pending a framed-issue hearing on the issues of whether the accident involved physical contact with an uninsured vehicle, whether Panther preserved Travelers' subrogation rights, and whether Panther's demand for arbitration was timely and proper
Physical contact (“Hit and Run”) is a condition of a UM claim only if the other vehicle cannot be identified or once identified, is uninsured. The question of the solvency of Eagle, however, is relevant.
4/28/08            In the Matter of Encompass Indem. Co. v. USAA Casualty Ins. Co.
Appellate Division, Second Department
What’s in a Name? To be a Named Insured, One Must be Named as a Named Insured.
The declarations page of an automobile insurance policy issued by USAA to Mr. Reilly listed his name as “named insured” and under operators, identified his wife and daughter Bridget.  The policy identified as insureds under the SUM (underinsured policy) "[t]he named insured . . . your spouse and the relatives of either you or your spouse."
Encompass also issued an automobile liability policy to Mr. Reilly; that policy listed his name and that of his wife under the label "policyholder," and listed his name and that of his wife under the label "driver information." That policy provided underinsured motorist coverage to "you, as the named insured . . . your spouse and relatives of either you or your spouse." Both the USAA policy and the Encompass policy provided for priority of coverage depending on whether the injured person was a "named insured" on the policy.
Bridget was hurt in a car accident (as a passenger in a vehicle neither parent owned) and the question that arose was whether she was a “named insured” in both policies for the purpose of determining the priority of SUM  motorist coverage. The sole issue on appeal is whether she is a "named insured" for purposes of the priority of coverage provision of the underinsured motorist (UIM) section found in the policies issued by both USAA and Encompass.
Court determines that while Bridget was listed in the USAA policy, she was not listed as a “named insured.”  Therefore, policies prorate for SUM coverage.

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

Margo M. Lagueras
[email protected]

5/07/09            Linton v. Nawaz
Appellate Division, First Department
Plaintiff Missed 3 ½ Months of Work Immediately Following the Accident But Fails to Establish Claim Under the 90/180-Day Category
Linton, a pedestrian, was struck by a taxi, which then jumped the curb and pushed Linton into a mailbox resulting in open wounds to his right knee and ankle.  He was taken by ambulance to the hospital, treated, prescribed pain medication and released.  Eight days after the accident he consulted with a neurologist whose initial diagnosis was traumatic cervical and lumbar radiculopathy and internal derangements of the left knee and right shoulder.  Prescribed MRIs revealed a tear of the right rotator cuff, tear of the left medial meniscus and multiple cervical herniations.  Treatment with the neurologist and physical therapy continued for four years, at which time the neurologist stated that Linton’s prognosis for full recovery was “guarded” and that he was “functionally impaired.”  Linton missed three and one-half months from work immediately after the accident.  In his bill of particulars he alleged permanent injuries to his lumbosacral and cervical spines, left knee and right shoulder under the permanent consequential and/or significant limitation categories, as well as under the 90/180-day category.

The defendants asserted that Linton did not sustain a serious injury, relying on affirmed reports of a radiologist and an orthopedist.  The radiologist, after reviewing MRIs taken within five weeks after the accident, reported that there was evidence of long-standing degenerative disc disease in Linton’s cervical spine, and no evidence of recent post-traumatic changes as regarded the left knee and right shoulder.  The orthopedist compared range-of-motion in the neck, back and shoulder to the normal ranges and concluded that Linton had full range-of-motion.  He did not, however, identify what objective tests he performed, nor did he state what the normal range of motion for the knee was.

In opposition, the plaintiff submitted his own affidavit as well as the affirmation of his treating neurologist, who related the complaints to the accident and detailed the history of Linton’s treatment.  He concluded that the injuries were permanent.  The court found that defendants’ orthopedist’s report was defective and that the radiologist’s report did not shift the burden to the plaintiff because it stated that “etiology is uncertain.”  Because the orthopedist’s report lacked probative value, the only evidence based on physical examination was that of plaintiff’s neurologist.  As such, the court affirmed the trial court’s determination that the plaintiff raised an issue of fact with regard to the permanent and/or significant limitation categories.

However, even though Linton was out of work for more than 90 of the 180 days immediately following the accident, the court modified the trial court’s decision and dismissed that portion of the complaint because there was evidence that after the 79th day Linton worked part-time and the part-time schedule did not raise a triable issue as to whether he sustained a 90/180-day injury.
Note:  The dissent, which engages in a battle of existing case law with the majority, is longer than the majority decision and, among other points, would find that the defendants carried their burden through the submission of evidence of a preexisting degenerative condition which established a lack of causation.  In the dissent’s opinion, the plaintiff failed to specifically address these findings and raise a triable issue as regards causation.

5/07/09            June v. Akhtar
Appellate Division, First Department
Where the Plaintiffs Are Young, the Defendants’ Claim That MRI Findings Are Due To Degenerative Changes Requires “Further Elaboration”
Here the plaintiffs were 25 and 31.  The majority affirmed the trial court and denied summary judgment holding that the injuries claimed were consistent with the description of the accident and that the defendants’ claims that the abnormal MRI findings and range-of-motion limitations were due to degenerative changes unrelated to the accident required “further elaboration” to satisfy the defendants’ burden. 

The dissent, written by the same judge as in Linton (above), minutely details and contrasts all the reports and concludes that the plaintiffs’ experts failed to address the degenerative change claims of the defendants’ experts.  The dissent takes strong issue with the majority’s decision stating that:  “[u]nsuprisingly, the majority cites no authority supporting its implicit conclusion that on account of these respective ages it is unlikely that plaintiffs suffered from degenerative changes.  Nor does it cite to anything in the record that supports that implicit conclusion.  Of course, the members of this panel are not competent to opine about whether, the extent to which or the frequency with which individuals between the ages of 25 and 31 suffer from degenerative conditions.”

5/05/09            Berson v. Rosado Cab Corp.
Appellate Division, Second Department
Plaintiff’s Deposition Testimony Undermines 90/180-Day Claim
Here the defendants brought two summary judgment motions: one on the ground that they were not at fault for the accident, and the second on the ground that the plaintiff did not sustain a serious injury.  On appeal, the trial court is reversed and the defendants’ motion to dismiss on the ground of no serious injury is granted, which makes the ‘not-at-fault’ motion academic.  The defendants’ orthopedist’s affirmed report concluded that the examination was normal.  In addition, the plaintiff testified during his deposition that he only missed two or three days from work and he was not prevented from performing substantially all his usual daily activities during the 90 of the first 180 days after the accident.

5/05/09            Bonilla v. Tortoriello
Appellate Division, Second Department
Physician’s Statements to Plaintiff that She Had Reached Maximum Medical Improvement and that Further Treatment Would be Merely Palliative Adequately Explain Gap in Treatment
While the plaintiffs’ treating physician’s affirmations did not adequately explain the gaps in treatment of two of them, it was sufficient to explain Maria Angela’s gap in treatment where he affirmed that in June 2005 he had concluded that she had reached maximum medical improvement and that any further treatment would be merely palliative.  His affirmation also concluded that, based on both contemporaneous and recent examinations, Maria Angela’s thoracic injuries and range-or-motion limitations were permanent and causally related to the accident.

5/05/09            Casco v. Cocchiola
Appellate Division, Second Department
Chiropractor’s Submissions Must be Either Subscribed Before a Notary or in Affidavit Form
In opposition to the defendant’s examining orthopedist’s findings that the plaintiff’s limitation in lumbar flexion was insignificant, the plaintiff offered numerous submissions by his treating chiropractor.  However, the majority of these submissions had no probative value because they were either not in affidavit form or were not subscribed before a notary as required.  In addition, no explanation was given for the cessation of treatment after seven months and, in fact, the plaintiff testified, during his deposition, that he stopped treating because he felt better. 

5/05/09            DiLernia v. Khan
Appellate Division, Second Department
Chiropractor’s Submissions Not in Affidavit Form have No Probative Value
Again, the plaintiffs submit reports from the treating chiropractor which are not in affidavit form and therefore rejected by the court as lacking in probative value.  In addition, the report from the injured plaintiff’s examining physician also failed to raise any triable issue of fact because, although noting significant range-of-motion limitations in the lumbar spine, it was based only on recent examination and no medical evidence was presented that was contemporaneous with the accident.  As such, the court searched the record and granted summary judgment both to the appealing and the non-appealing defendants.

5/05/09            Robinson v. Yeager
Appellate Division, Second Department
Another Case of Misplaced Reliance
The plaintiff wins a reversal where the Appellate Court determines that the defendant did not meet his prima facie burden because he relied on the affirmed reports of two physicians, one noting significant limitation in the plaintiff cervical spine, and the other noting significant limitation in the plaintiff’s right shoulder.

4/28/09            Kin Chong Ku v. Baldwin-Bell
Appellate Division, Second Department
A Recent Examination Must Support Claims Under the Significant Limitation of Use and/or the Permanent Consequential Limitations of Use Categories
The plaintiff failed to raise a triable issue of fact to defeat summary judgment because his submissions were not based on a recent examination and therefore fail under the categories of permanent consequential limitation and/or significant limitation of use.  In addition, the plaintiff’s own deposition testimony established that he missed only two days of work following the accident and he submitted no medical evidence that he was unable to perform substantially all his usual activities in support his claim under the 90/180-day category. 

4/28/09            McCarthy v. Gagne
Appellate Division, Second Department
Range-of-Motion Reports Must Compare the Findings with What Is Normal
On appeal, the court determined that the defendants did not meet their prima facie burden because all three affirmed medical reports from the examining orthopedic surgeons upon which the defendants relied provided range-of-motion findings but did not compare them with what is normal.  As such, the defendants failed to meet their prima facie burden and the grant of summary judgment was reversed.

4/28/09            McMillian v. Naparano
Appellate Division, Second Department
The Failure to Meet the Prima Facie Burden Obviates the Need to Consider the Opposing Papers
The plaintiff alleged a left knee injury and successfully defeated the defendant’s motion for summary judgment.  On appeal, the decision was affirmed, although on different grounds, and the Appellate Court determined the defendant did not meet his prima facie burden in the first instance, thereby obviating the need to even consider the plaintiff’s opposing papers.

4/28/09            Thomas v. Weeks
Appellate Division, Second Department
Failure of Treating Neurologist to Reconcile Findings in His Own Reports Dooms the Plaintiff’s Claim
The plaintiff’s treating neurologist examined her cervical spine in September and October of 2003 and, in his affirmation of September 2007, deemed her injuries to be permanent.  However, he also had examined her in November 2003, January 2004, and July 2007.  During those examinations, he reported that she had full range of motion in her cervical spine.  Because he failed to reconcile those findings with the 2003 findings, his affirmation was insufficient to defeat the defendant’s motion.  The court further noted that the 3 ½ year gap in treatment between January 2004 and July 2007 had not been adequately explained.

4/28/09            Alam v. Karim
Appellate Division, Second Department
An Example of When Not to Waste Your Time and Money
The defendants appealed, and lost again for obvious reasons.  Their own examining orthopedic surgeon conceded in his affirmed report that the plaintiff had significant range-of-motion limitations in the right shoulder and lumbar spine and, in fact, had ongoing positive indications that, more than a year and a half after the accident, the plaintiff’s injuries had not resolved. 

4/28/09            Baldessari v. Caines
Appellate Division, Second Department
“Perfunctory” Claims of Unspecified Clerical Inadvertence and Reassignment of Counsel Are Not Good Cause for Delay in Filing Summary Judgment Motion
And so the Appellate Court reverses the trial court finding the trial court’s exercise of discretion in denying the plaintiff’s cross motion to deny summary judgment on the ground that the motion was made beyond the time set forth in the court’s certification order, “improvident.”  Plaintiff’s cross-motion is granted and the order vacated.

4/28/09            Paula v. Natala
Appellate Division, Second Department
Affirmed Quantified Range-of-Motion Findings from Treating Physician Raises Triable Issues of Fact
Simply stated, the plaintiff successfully defeats the summary judgment motion through the submission of affirmed quantified range-of-motion findings of her cervical and lumbar spines from the physician who treated her during the months following the accident. 

 

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

On hiatus this week.

 

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper
[email protected]

Of Property

5/05/09            Green v William Penn Life Ins. Co. of New York
Court of Appeals
The Issue of Suicide is Not an Issue of Law, but Usually an Issue of Fact that Must be Weighed against all of the Factors Presented at Trial

This matter involved a bench determination, after a non-jury trial, that the named insured under the life insurance policy issued by Penn Life had committed suicide.  On appeal, the First Department overturned the bench decision by holding that the evidence elicited at trial did not overcome the presumption against suicide. However, the Court of Appeals noted that in reaching its decision the First Department to employ the incorrect standard.

Relying upon the instructions found within the PJI, the Court of Appeals stated that a trier of fact “may make a finding of suicide only if you are satisfied from the evidence, and taking into consideration the presumption against suicide, that no conclusion other than suicide may reasonably be drawn.”  However, the Court warned that this instruction should not be interpreted to provide that “where more than one conclusion is reasonably possible, suicide is excluded as a matter of law.”  Rather, the Court found that the issue of whether the insured committed suicide is one, in most instances, of a question of fact that must be decided by the trier of fact. 

As there was evidence to support both theories of death in this case, the Court of Appeals remanded the matter back to the Appellate Division for a review of the Trial Court’s determination based on the facts of the case. 

4/28/09            Progressive Insurance Company v John Lennon
Appellate Division, Second Department
Subrogation Rights do not Ripen until Payment is made
In this matter, one Progressive insured was killed as a result of a motor vehicle accident, and a second insured also sustained serious injury.  In turn, Progressive, as SUM/UM carrier, commenced a subrogation principally against the alleged tortfeasors and their respective carriers.  However, where Progressive was unable to establish that it had actually submitted payment to the decedent and the insured, the Second Department ruled that Progressive’s subrogation rights had not yet accrued.  Accordingly, the matter was summarily dismissed as premature.     

and Potpourri

5/12/09            148 Magnolia, LLC, et al. v Merrimack Mutual Fire Ins. Co.
Appellate Division, First Department
Subpoena for an Investigation File was Proper where Carrier could not Establish it was Prepared Solely in anticipation of litigation.
Plaintiff, Magnolia, served a subpoena which sought production of a certain investigation file prepared by an agent of the defendant.  Defendant, Merrimack, in turn, moved to quash the subpoena on the basis that the information contained therein was privileged or otherwise exempt from disclosure.  Citing the general rule that reports prepared in the processing of a claim are discoverable, the First Department affirmed the trial court’s decision to deny Merrimack’s motion.  In order for the motion to quash to have been appropriate, the Court noted that Merrimack was required to establish the file was prepared solely in anticipation of litigation. 

As an aside, the Court also noted that Merrimack’s motion to quash was also procedurally defective where it did not contain evidence of Merrimack’s good faith effort to resolve the dispute prior to motion practice. 

5/05/09            Passante v Agway Consumer Products, Inc.
Court of Appeals
Court finds a Question of Fact over Whether a Machine was Inherently Dangerous Where the Buyer Specifically Rejected Safety Equipment
Plaintiff, Passante, sustained injury when he fell from a shipping dock where he was employed.  At the time of the injury, plaintiff was standing upon a dock leveler that connected the unloading trailer to the dock.  Unbeknownst to plaintiff, the driver of the tractor-trailer pulled forward while plaintiff was still standing on the dock leveler.  As a result, the leveler collapsed, and plaintiff fell. 

Among other things, plaintiff alleged that the dock leveler was defectively designed because it did not incorporate relevant safety devices.  Specifically, plaintiff argued that a system which secured the tractor-trailer to the dock was necessary to prevent the dock leveler from disengaging while someone was standing on it.  Interestingly, the manufacturer of the dock leveler also manufactured an optional companion piece called “Dok-Lok” which, when properly employed, would have secured the trailer to the dock.  The plaintiff’s employer indicated that it was aware of the “Dok-Lok” system, and it purposefully decided against purchasing the system. 

The manufacturer and distributor of the dock leveler moved for summary judgment on the grounds that dock leveler was not inherently dangerous, and in fact operated exactly as it was designed. Under the manufacturer’s and distributor’s argument, plaintiff fell not because the dock leveler was defectively designed, but rather, because plaintiff’s employer made the conscious choice not to include safety devices to ensure the trailer did not move after the dock leveler was engaged.  

In deciding the case, the Court of Appeal focused on its previous decision in Scarangella which lead to the adoption of a three part test for determining this issue:

  1. is the buyer thoroughly knowledgeable about the product;
  2. can, under normal circumstances, the product be used without being unreasonably dangerous; and,
  3. was the buyer able to balance the benefits and risks of choosing not to employ available safety devices.

 

The Court ruled that although the buyer had a thorough knowledge of the product, it, nonetheless, held that a question of fact existed as to whether the dock leveler could be employed without it being unreasonably dangerous.  In support of this conclusion, the Court relied upon the manufacturer’s marketing materials for the companion “Dok-Lock” system which characterized the area between the dock and the trailer as a “danger zone.”  Having reached the determination that a question of fact existed as to whether the dock leveler presented an inherent danger, the Court declined to assess the final prong of the Scarangella test.

In response to plaintiff’s failure to warn claim, the Court found a question of fact as to whether the instruction sheet posted at the dock site was sufficient where it did not contain a warning that remaining on the dock leveler after it engaged to the tractor-trailer could be dangerous.

In a well-reasoned and well-authored dissent, Judge Smith noted that the majority’s holding merely penalizes the manufacturer and distributor for not insisting on the use of the “Dok-Lock” system, even though the use of such system was specifically rejected by the plaintiff’s employer.  Judge Smith noted that the second prong of the Scarangella test did not ask “whether equipment ‘would normally be used’ without unreasonable danger.”  On the contrary, under his interpretation, the question was “whether ‘there exist normal circumstances of use’ where danger is not unreasonable.” Accordingly, the dissent argued that where the product can be used without an unreasonable risk of damage, the choice to employ safety precautions ought best be left with the buyer. 

When applied to the current case, Judge Smith found that under normal circumstances there was no unreasonable risk of danger.  Indeed, due to the configuration of the docks – where the ramp was pitched down toward the dock – the trailer could not have “rolled away” to expose the dock leveler.  As such, the dissent reasoned the second prong of Scarangella had been met.

Further, Judge Smith went on to note that the third prong of the Scarangella test had also been established by the manufacturer and the distributor.  Clearly, in the Judge’s opinion, the buyer (plaintiff’s employer) had opportunity to balance the risks and benefits of the “Dok-Lok” system, and it willfully chose to proceed without it.  Having made such a choice, the dissent argues there was no reason to assign liability to the manufacturer and distributor.

Finally, Judge Smith was also not persuaded by plaintiff’s arguments based upon the manufacturer’s failure to warn of dangers.  Indeed, over five months of experience, plaintiff testified that he was well aware of the dangers of standing on the dock leveler. 

4/28/09            Transportation Insurance Company v Simplicity, Inc.
Appellate Division, Second Department
Engaging the Assistance of a New York Insurance Broker is Sufficient Contact to Trigger Long Arm Jurisdiction
Transportation Ins. Co. sought to rescind a policy it had issued to Simplicity on the basis of material misrepresentations.  In response, Simplicity moved to dismiss the matter alleging that plaintiff could not obtain personal jurisdiction.  Noting that Simplicity engaged a broker in New York to procure various policies over a period twelve of years, and where Simplicity had an established pattern of frequent communication with the broker through telephone, e-mail and facsimile, the Second Department ruled that Simplicity fell within the Court’s long arm jurisdiction. 

EARL’S PEARLS
Earl K. Cantwell, II
[email protected]
Now Even Non-Clients Are Suing Lawyers!

            The case of Westport Insurance Corp. v. Cotten Schmidt LLP, 2009 U.S. Dist. LEXIS 21880 (N.D. Tex. 2009), involved a case where an insurer was required to defend a non-client’s suit against a law firm.  Bell and Russell entered into a business agreement where Bell agreed to finance Russell’s purchase of oil field equipment (what else in Texas) on behalf of a company called Empire Equipment, Inc.  Eventually, Bell, who was represented by the Cotten law firm, sued Russell.  The law firm obtained default judgments in favor of Bell and a writ of attachment on some of the equipment, and then had the equipment sold off at an auction.  It was not until after the auction was held that Russell succeeded in having the default judgments vacated.\

The plot thickened when Russell and Empire sued the Cotten law firm alleging, inter alia, wrongful execution and conversion allegedly based on failure to satisfy requirements of a court order which had allowed for substituted service of process.  They also alleged that the law firm exceeded the relief available under the default judgments by having the equipment sold at auction.

Westport Insurance, the Cotten law firm’s insurer, brought a declaratory judgment action to establish that it was not required to defend the law firm in the suit brought by Russell and Empire.  However, applying Texas law, the court granted summary judgment in favor of the law firm requiring the insurance company to defend the lawsuit brought by the law firm’s non-clients.

The insurance company first argued that the lawsuit did not involve a “wrongful act” as defined by the policy because it was not brought against the law firm in its capacity as lawyers because attorneys do not owe a duty of care to non-clients.  The court rejected this argument stating that, because Russell and Empire were not suing the law firm for malpractice, the privity or client rule did not bar the underlying lawsuit.  The court reasoned that the crux of the claims was against the law firm for actions as “attorneys” and, thus did fit within the policy’s definition of “wrongful acts”.  The language of the policy ostensibly did not limit claims coverage to malpractice suits brought by the insured’s own clients. 

The court next ruled that, even if the law firm had some valid defenses to the underlying claim such as qualified immunity or good faith reliance upon the acts and decisions of judicial and court system personnel, such ultimate defenses did not necessarily relieve the insurer of the duty to defend.  Such defenses might eventually affect and negate the insurer’s duty to indemnify, but the duty to defend was triggered by the allegations of the suit and the context of the claim. 

A secondary issue in the case was whether the insurer’s attempt to invoke the prior knowledge exclusion offset and negated the duty to defend.  Generally, the prior knowledge exclusion required the court to determine whether an objectively reasonable attorney “might” expect a claim to be made given the subjective knowledge of the insured law firm.  The complaint alleged that the attorneys knew (or should have known) that service of process had not been properly effectuated and that the default judgments were interlocutory.  The court opined that such allegations and the context of the claim left open the possibility that the law firm did not know that the service requirements had not been complied with or that the judgments were not final, and reasonable attorneys might not expect a claim.  Therefore, the prior knowledge exclusion was not inherent or conclusively established. 

Although in sum this case was admittedly a “difficult and close call”, the court held that the insurer had a duty to defend the law firm. 

Westport is a lesson to attorneys to beware of claims and possible lawsuits by adversaries and other parties to a lawsuit or transaction who are not their own clients.  For example, notice provisions in an insurance policy might require a law firm to report a possible claim even if the potential claimant or injured party is not your own client. 

Secondly, definitions in the policy with respect to occurrence, wrongful acts and coverage need to be carefully scrutinized to see if they leave open the possibility of defense and indemnification if a law firm is sued by a party other than its own client.  Such claims could proceed not on grounds of “malpractice”, but perhaps other grounds such as in Westport which might involve abuse of process, taking wrongful legal action, conversion, etc. 

Although there may be ultimate legal and factual defenses to such claims including absolute or qualified immunity, or good faith reliance upon judicial order or the actions of court clerks, the allegations of a complaint in context might still be sufficient

ACROSS BORDERS

5/06/09            Fire & Cas Ins. Co. v. Miranda
Texas Court of Appeals
An Insurer’s Duty to Respond to an Occupational Disease Injury Claim is Triggered by Receipt of Written Notice of the Injury; Not Date of Injury

On June 25, 2001, Javier Miranda sustained a scratch on his right forearm while working for Guadalupe Valley Hospital. On July 2, 2001, Miranda reported the injury to his employer who notified appellant, Fire and Casualty Insurance Company of Connecticut ("Fire & Casualty"), of the “superficial scratch” on Miranda’s arm. Fire & Casualty took no action. In February 2002, Miranda was diagnosed with Hepatitis C and alleged that the disease was an occupational disease related to the June 2001 scratch. On March 4, 2002, Miranda’s employer notified Fire & Casualty of the Hepatitis C diagnosis and on March 8, a report with the Texas Worker's Compensation Commission ("TWCC") was filed. On March 11, 2002, Fire & Casualty disputed the claim, contending that Miranda's Hepatitis C was not a work-related injury and that it was an ordinary disease of life. The TWCC Appeals Panel found Miranda did not sustain an injury in the form of Hepatitis C on June 25, 2001, but determined Fire & Casualty had waived its right to dispute compensability because it did not dispute the July 2001 claim within seven days of receipt. Fire & Casualty filed suit in district court, and the trial court affirmed the decision by the TWCC Appeals Board. The Court of Appeals reversed the judgment from the trial court. The Court of Appeals reasoned that the Texas Labor Code distinguishes occupational diseases from other accidental types of injuries for purposes of notice in Texas Labor Code §§ 409.001(a)(2) and 409.003. The court determined that for occupational diseases, notice is required only when the employee knew or should have known that the injury was related to employment. Therefore, the date of the insurer's written notice of an occupational disease injury, rather than the date of the injury, triggers the insurer's duty to react. The court held that State Farm did not waive its right to dispute the claim because it filed a dispute within three days of notice of the Hepatitis C diagnosis. Further, the court held that Miranda waived his right to challenge the trial court's finding that he did not acquire Hepatitis C in the scope of his employment by failing to appeal within 40 days of the decision, pursuant to Texas Labor Code § 410.252(a). The court rendered judgment against Miranda’s claim for workers' compensation benefits and attorney's fees.
Submitted by: Bruce D. Celebrezze and Kori-Renée Hart (Sedgwick, Detert, Moran & Arnold LLP)

5/05/09            Freedman v. State Farm Insurance Company
California Court of Appeal
Insured Not Entitled to Coverage for Damage Caused by Contractor when Policy Contains Explicit Exclusion for Third-Party Negligence

A contractor remodeling a bathroom in the home of Bernard and Gail Freedman drove a nail through a pipe while hanging new drywall. The nail in the pipe caused no leak at the time and went unnoticed until years later when corrosion around the nail caused extensive water damage. The Freedmans were insured by State Farm Insurance Company under an “all-risk” coverage policy that excluded from coverage damage caused by corrosion, continuous or repeated seepage or leakage of water, and third-party negligence. On August 15, 2005, the Freedmans submitted a claim to State Farm for water damage caused by the leaking pipe and State Farm denied the claim. The Freedmans filed suit in superior court and a motion for summary judgment was granted in favor of State Farm. The Freedmans appealed. On appeal, the Court of Appeal affirmed the judgment by the trial court, concluding that the policy provided no coverage for the damage. Analogizing to Julian v. Hartford Underwriters Ins. Co., 35 Cal. 4th 747 (Cal. 2005), the court applied the efficient proximate cause doctrine to find that the third-party negligence provisions of the Freedmans’ policy excluded third parties’ negligent conduct and defective workmanship that interacted with an “excluded peril.” The court determined that corrosion and continuous or repeated water seepage were excluded perils, and concluded that the policy clearly excluded contractor-negligence-induced corrosion and contractor-negligence-induced water leaks. Further, the court found unpersuasive the Freedmans' argument that the water damage provisions were ambiguous. Similarly, the court found that the policy expressly provided exclusion for leaks, regardless of whether they are caused by natural or external forces. Damage caused by mold was further excluded from coverage because the mold was caused by corrosion, which was not a specified peril under the coverage. Accordingly, State Farm prevailed on the claim and was awarded the costs of appeal.
Submitted by: Bruce D. Celebrezze and Kori-Renée Hart (Sedgwick, Detert, Moran & Arnold LLP)

 

REPORTED DECISIONS

In the Matter of American Protection Insurance Company v. DeFalco


Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger,
Uniondale, N.Y. (Laura A. Endrizzi and Kathleen D. Foley of
counsel), for appellant.
Brecher Fishman Pasternack Walsh Tilker & Ziegler, P.C., New
York, N.Y. (Diamond and Diamond,
LLC [Stuart Diamond], of counsel), for
respondent.

DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for underinsured motorist benefits, the petitioner appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Martin, J.), entered October 1, 2008, as denied its petition to permanently stay arbitration or, in the alternative, to temporarily stay arbitration pending a framed-issue hearing on the issue of coverage under the subject insurance policy.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the petition which was to temporarily stay arbitration of the claim for underinsured motorist benefits pending a framed-issue hearing is granted, and the matter is remitted to the Supreme Court, Nassau County, for a framed-issue hearing in accordance herewith, and for a new determination thereafter on that branch of the petition which was to permanently stay arbitration.
On January 29, 2003, John J. DeFalco, a Suffolk County Police Officer, pursued a vehicle driven by Julia Bell. After Bell pulled over and brought her vehicle to a stop, she then put her vehicle in reverse and collided with DeFalco's patrol car. Ultimately, Bell was placed under arrest. DeFalco claimed that he sustained personal injuries during the course of this incident. In February 2008, after DeFalco had commenced and settled an action to recover damages against Bell, he sought supplementary underinsured motorist (hereinafter SUM) benefits from the petitioner, American Protection Insurance Company (hereinafter American), the company which insured DeFalco's personal vehicle on the date of the subject incident. When American disclaimed coverage, DeFalco demanded arbitration of his claim for SUM benefits. American thereafter commenced this proceeding seeking a permanent stay of the arbitration or, in the alternative, a temporary stay of arbitration pending a framed-issue hearing on the issue of coverage under the relevant insurance policy. American argued that there were factual issues as to whether the collision of the vehicles resulted in a covered accident or constituted an uncovered deliberate act on Bell's part. American also argued that there was an issue of fact as to whether DeFalco's injuries arose from the "use and operation" of an underinsured motor vehicle, as opposed to a postcollision scuffle or altercation with Bell in the course of her arrest, and whether DeFalco was "occupying" the vehicle when he was injured.
SUM benefits are not recoverable if the injuries were intentionally caused and not the result of an accident (see State Farm Mut. Auto. Ins. Co. v Langan, 55 AD3d 281; Met Life Auto & Home v Kalendarev, 54 AD3d 830; Matter of Allstate Ins. Co. v Massre, 14 AD3d 610, 611). It is also clear that DeFalco would not be entitled to SUM benefits under the American policy if he was not "occupying" a vehicle when he was injured. Thus, the occurrence of an accident and the "occupation" of a vehicle are conditions precedent to SUM coverage herein.
"The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay" (Matter of Liberty Mut. Ins. Co. v Morgan, 11 AD3d 615, 616; see Matter of Eagle Ins. Co. v Viera, 236 AD2d 612). Here, American submitted documentary evidence which indicated that DeFalco's injuries did not arise from the "use or operation" of a vehicle. Although DeFalco submitted an affidavit in opposition to the petition, wherein he claimed that his injuries occurred when he was exiting his vehicle as it was struck by the Bell vehicle, this description contrasted with his prior statement, recorded in a "Suffolk County Police Department Injured Employee Report," in which he stated that he was injured "while attempting to subdue and place a violently struggling suspect [Bell] under arrest." At the very least, the two explanations of how DeFalco incurred his injuries raise a question as to his credibility, and thus a framed-issue hearing on the issue of coverage is warranted (see Matter of Eagle Ins. Co. v Lucia, 33 AD3d 552; Matter of Travelers Prop. Cas. Co. v Landau, 27 AD3d 477).
Similarly, American submitted documentary evidence which indicated that the collision could have been the result of an intentional act on Bell's part. Although this same evidence may be consistent with a conclusion that the collision was accidental, under all of the circumstances presented, American met its burden of tendering evidence sufficient to warrant a framed-issue hearing with respect to this issue as well (see Matter of Country-Wide Ins. Co. [Law], 97 AD2d 699).
Bryde v. CVS Pharmacy


McAndrew, Conboy & Prisco, Woodbury, N.Y. (Yasmin D. Soto
and Craig Dolinger of counsel), for appellants.
White, Quinlan & Staley, LLP, Garden City, N.Y. (Eugene
Patrick Devany of counsel), for
respondent.


DECISION & ORDER
In an action to recover damages for personal injuries, the defendants CVS Pharmacy, CVS Pharmacy, Inc., and Greenlawn CVS, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (R. Doyle, J.), entered September 20, 2007, as denied that branch of their motion which was for summary judgment on their cross claims for common-law and contractual indemnification, and to recover damages for breach of contract against the defendant Jato Building Contractors, Inc.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In 2003 the defendant Jato Building Contractors, Inc. (hereinafter Jato), entered into a construction contract with the defendants CVS Pharmacy, CVS Pharmacy, Inc., and Greenlawn CVS, Inc. (hereinafter collectively CVS), pursuant to which Jato agreed to build a CVS store in Greenlawn. Among other things, the contract required Jato to obtain an insurance policy naming CVS as an additional insured, and included an indemnification clause, obligating Jato to "defend, indemnify and hold harmless CVS . . . from and against all claims, damages, losses and expenses . . . arising out of or resulting from . . . any negligence or tortious act or omission" on its part in the construction process.
In 2005 the plaintiff commenced the instant action against CVS and Jato, alleging that she was injured in a slip-and-fall accident caused by the negligent design and construction of a handicapped access ramp outside the CVS store in Greenlawn. CVS asserted cross claims against Jato seeking an apportionment of liability between the parties pursuant to CPLR 1403 and 3019, to recover damages for breach of contract and for contribution, common-law indemnification, and contractual indemnification. CVS moved, inter alia, for summary judgment on the cross claims to recover damages for breach of contract and for common-law and contractual indemnification, and Jato cross-moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. The Supreme Court, among other things, denied CVS's motion. We affirm the order insofar as appealed from.
The Supreme Court properly denied that branch of CVS's motion which was for summary judgment on its cross claim for contractual indemnification against Jato, since CVS did not establish, as a matter of law, that the plaintiff's accident resulted from a "negligen[t] or wrongful act or omission" on the part of Jato, as required by the defense and indemnification clause of its contract with Jato (see Coque v Wildflower Estates Dev., 31 AD3d 484, 488-489 [indemnification clause required proof of negligence "or wrongful act or omission"]; Rodriguez v Savoy Park Assoc. Ltd. Partnership, 304 AD2d 738, 739; Edwards v International Bus. Machs. Corp., 174 AD2d 863, 864-865; cf. Pope v Supreme-K.R.W. Constr. Corp., 261 AD2d 523 [indemnification clause did not require proof of negligence]). It would also have been premature for the court to have granted that branch of CVS's motion which was for summary judgment on so much of the contractual indemnification claim as sought the provision of a defense by Jato since Jato "is not an insurer and its duty to defend is no broader than its duty to indemnify," which has yet to be established (Brasch v Yonkers Constr. Co., 306 AD2d 508, 510-511; see Rodriguez v Savoy Park Assoc. Ltd. Partnership, 304 AD2d at 739; Cannavale v County of Westchester, 158 AD2d 645, 646-647).
Additionally, there are triable issues of fact which preclude an award of summary judgment with respect to the common-law indemnification claim, as CVS failed to establish "that no negligent act or omission on its part contributed to the plaintiff's injuries, and that its liability is therefore purely vicarious" (Coque v Wildflower Estates Dev., 31 AD3d at 489; see Amit v Hineni Heritage Ctr., 49 AD3d 574, 575; Public Adm'r. of Kings County v 8 B.W., LLC, 40 AD3d 834, 835; Medina v New York El. Co., 250 AD2d 656; La Lima v Epstein, 143 AD2d 886, 888).
Additionally, "[a] party seeking summary judgment based on an alleged failure to procure insurance naming that party as an additional insured must demonstrate that a contract provision required that such insurance be procured and that the provision was not complied with" (Rodriguez v Savoy Park Assoc. Ltd. Partnership, 304 AD2d at 739; see McGill v Polytechnic Univ., 235 AD2d 400, 402). Since CVS failed to demonstrate that Jato breached the insurance procurement clause, the court did not err in denying that branch of CVS's motion which was for summary judgment on that cross claim (see Kinney v Lisk Co., 76 NY2d 215, 218; Lima v NAB Constr. Co., 59 AD3d 395; Kim v D & W Shin Realty Corp., 47 AD3d 616, 620).
In the Matter of Encompass Indem. Co. v. USAA Casualty Ins. Co.

Robert M. Spadaro, New York, N.Y., for USAA Casualty Insurance
Company.
Feeney & Associates, PLLC, Hauppauge, N.Y. (Rosa M. Feeney
of counsel), for Encompass Indemnity
Company.


DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for underinsured motorist benefits, and a related action for a judgment declaring that payment of the underinsured motorist benefits should be shared on a pro rata basis between USAA Casualty Insurance Company and Encompass Indemnity Company, USAA Casualty Insurance Company appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Smith, J.), dated October 2, 2007, as, in effect, granted the petition in Matter No. 1 to permanently stay arbitration, and (2) from an order of the same court, also dated October 2, 2007, which denied its motion in Matter No. 2 for summary judgment declaring that payment of the underinsured motorist benefits should be shared on a pro rata basis and granted the cross motion of Encompass Indemnity Company in Matter No. 2, in effect, for summary judgment declaring that USAA Casualty Insurance Company must pay the full amount of the underinsured motorist benefits.
ORDERED that the first order is reversed insofar as appealed from, on the law, the petition is denied, and the proceeding is dismissed; and it is further,
ORDERED that the second order is reversed, on the law, the motion for summary judgment is granted, the cross motion for summary judgment is denied, and the matter is remitted for a judgment declaring that payment of the underinsured motorist benefits at issue must be shared on a pro rata basis between USAA Casualty Insurance Company and Encompass Indemnity Company; and it is further,
ORDERED that one bill of costs is awarded to the appellant.
The declarations page of an automobile insurance policy issued by USAA Casualty Insurance Company (hereinafter USAA), to Charles J. Reilly, Jr. (hereinafter Mr. Reilly), listed Mr. Reilly's name in a box entitled "named insured," and listed in a box entitled "operators," among others, Mr. Reilly, his wife, and Mr. Reilly's daughter, Bridget M. Reilly. The policy provided underinsured motorist coverage to "[t]he named insured . . . your spouse and the relatives of either you or your spouse."
Encompass Indemnity Company (hereinafter Encompass) had also issued an automobile liability policy to Mr. Reilly; that policy listed his name and that of his wife under the label "policyholder," and listed his name and that of his wife under the label "driver information." That policy provided underinsured motorist coverage to "you, as the named insured . . . your spouse and relatives of either you or your spouse." Both the USAA policy and the Encompass policy provided for priority of coverage depending on whether the injured person was a "named insured" on the policy.
Bridget M. Reilly sustained injuries in a motor vehicle accident with an underinsured motorist while she was a passenger in a vehicle owned by neither of her parents, and sought underinsured motorist coverage. The sole issue on appeal is whether she is a "named insured" for purposes of the priority of coverage provision of the underinsured motorist (UIM) section found in the policies issued by both USAA and Encompass.
"[C]ourts bear the responsibility of determining the rights or obligations of parties under insurance contracts based on the specific language of the policies whose unambiguous provisions must be given their plain and ordinary meaning" (Labate v Liberty Mutual Insurance Co., 45 AD3d 811, 812 [internal citation and quotations omitted]). Encompass argues that Bridget M. Reilly was a named insured on the USAA policy because her name appears on that policy. However, it is evident from the face of the USAA policy that there is only one named insured, Mr. Reilly. The language of the policy does not give rise to any ambiguity (see Matter of Government Gen. Empls. Ins. Co. v Constantino, 49 AD3d 736, 737). Accordingly, Bridget M. Reilly was not a named insured on the USAA policy, and the priority of coverage provisions required both USAA and Encompass to contribute pro rata to Bridget Reilly's claim for underinsured motorist benefits. Therefore, Encompass should not have been granted a permanent stay of arbitration, and USAA was entitled to summary judgment declaring that payment of the underinsured motorist benefits should be shared on a pro rata basis.
Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Westchester County, for the entry of an appropriate judgment in accordance herewith (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).
In the Matter of Travelers Indemnity Company v. Panther


Jose R. Mendez, P.C., Rego Park, N.Y., for appellant.
Karen C. Dodson, Melville, N.Y. (Richard P. McArthur of
counsel), for petitioner-respondent.


DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, Bralcord Panther appeals from an order of the Supreme Court, Queens County (Rios, J.), dated March 25, 2008, which granted the petition.
ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.
On July 4, 1996, the appellant, Bralcord Panther, was involved in a motor vehicle accident with a vehicle owned and operated by Elvis Marshall. At that time, Panther's vehicle was insured under a policy of insurance issued by the petitioner, Travelers Indemnity Company (hereinafter Travelers), and Marshall's vehicle was insured under a policy of insurance issued by Eagle Insurance Company (hereinafter Eagle). In or around July 2006, Eagle was declared insolvent. In May 2007, nearly 11 years after the accident, Panther made a demand upon Travelers for arbitration of his claim for uninsured motorist benefits on the ground that Eagle was insolvent. Travelers commenced this proceeding to permanently stay arbitration. The Supreme Court temporarily stayed arbitration pending a framed-issue hearing on the issues of whether the accident involved physical contact with an uninsured vehicle, whether Panther preserved Travelers' subrogation rights, and whether Panther's demand for arbitration was timely and proper. In an order dated March 25, 2008, the Supreme Court granted the petition and permanently stayed arbitration on the ground that Panther had failed to establish that there was physical contact between his vehicle and an uninsured vehicle. We reverse.
"[P]hysical contact is a condition precedent to an arbitration based upon a hit and run accident involving an unidentified vehicle" (Matter of Great N. Ins. Co. v Ballinger, 303 AD2d 503, 504; see Insurance Law § 5217; Matter of Eveready Ins. Co. v Scott, 1 AD3d 436, 437; Matter of State Farm Mut. Auto. Ins. Co. v Johnson, 287 AD2d 640, 641). Where an accident involves an identifiable driver, as here, "the issue of whether there was actual physical contact is irrelevant" (Matter of Metro. Prop. & Liab. Co. v Pisanelli, 151 AD2d 761, 763). Here, the sole basis for the demand for uninsured motorist arbitration was the insolvency of Eagle.
Since the Supreme Court erred in granting the petition on the ground of Panther's failure to establish physical contact, we remit the matter for a framed-issue hearing as to whether the demand for uninsured motorist arbitration was timely (see Matter of State Farm Mut. Auto. Ins. Co. v Tubis, 38 AD3d 670, 672; Matter of Allstate Ins. Co. v Morrison, 267 AD2d 381; Matter of Allstate Ins. Co. v Torrales, 186 AD2d 647, 648) and whether Panther failed to preserve Travelers' subrogation rights (see generally Friedman v Allstate Ins. Co., 268 AD2d 558).
The parties' remaining contentions either are without merit or have been rendered academic by our determination.
Eveready Insurance Company v. Illinois National Insurance Company


Sweetbaum & Sweetbaum, Lake Success (Marshall D.
Sweetbaum of counsel), for appellant.
Law Offices of Beth Zaro Green, Brooklyn (William J. Cleary
of counsel), for respondent.
Order, Supreme Court, New York County (Walter B. Tolub, J.), entered on or about September 26, 2007, which, in a declaratory judgment action between insurers involving the parties' respective obligations to contribute to the settlement of an underlying action, upon the parties' respective motions for summary judgment, declared, inter alia, that plaintiff is a primary insurer and defendant-respondent an excess insurer, and that defendant is not required to contribute in the proportion that the limits of its policy bears to the total of the limits of both its policy and plaintiff's policy, unanimously affirmed, without costs.
The clear and unambiguous "other insurance" clause of defendant's policy limits its policy to "excess" coverage where a covered accident involves a vehicle not owned by its insured, Dominos Pizza. As it was undisputed that the vehicle involved in the accident belonged to plaintiff's insured, a deliveryman for Dominos Pizza who was making a pizza delivery, defendant is an excess insurer required to contribute to the settlement only after the exhaustion of plaintiff's policy (Federal Ins. Co. v Ryder Truck Rental, 189 AD2d 582, affd 82 NY2d 909 [1994]). There is no merit to plaintiff's argument that this "excess" provision of the other insurance clause is contradicted and negated by the "proportionate payment" provision of the same clause. The latter, by its terms, only applies to coverage that is "on the same basis," i.e., where the policy is primary and there are other primary policies, the policy will pay pro rata with the other primary policies, and where the policy is excess and there are other excess policies, the policy will pay pro rata with the other excess policies (General Acc. Fire & Life Assur. Corp. v Piazza, 4 NY2d 659, 669). Here, plaintiff's policy is primary and defendant's policy is excess.
AIU Insurance Company v. Nationwide Mutual Insurance Company


Milber Makris Plousadis & Seiden, LLP, Woodbury (Lorin A.
Donnelly of counsel), for appellant-respondent.
Lester Schwab Katz & Dwyer, LLP, New York (Howard R.
Cohen of counsel), for respondent-appellant.
Judgment, Supreme Court, New York County (Judith J. Gische, J.), entered January 23, 2008, in an action between insurers involving their respective coverage obligations in an underlying action, inter alia, declaring, upon the parties' respective motions for summary judgment, that the parties have an equal obligation to indemnify their mutual insured in the underlying action and that defendant is obligated to reimburse plaintiff for one half of the settlement that plaintiff paid in the underlying action, and awarding plaintiff damages in accordance with such declaration, unanimously reversed, on the law, without costs, the judgment vacated, defendant's motion for summary judgment granted, and it is declared that defendant has no obligation to indemnify the parties' mutual insured or to reimburse plaintiff for one half of the settlement.
The underlying action giving rise to the coverage claims in this action involved a fatal accident at a construction site. Under a so-called wrap-up insurance policy, plaintiff insured both the owner of the site and the subcontractor that employed the decedent; defendant also insured the employer under a workers' compensation policy that provided coverage for damages claimed by a "third party as a result of injury to your employee." After the decedent's wife was granted summary judgment against the owner on the issue of liability, plaintiff caused the owner to commence a third-party action against the employer, but plaintiff settled the main action after a trial on damages was held, and the employer was not involved in either the trial or the subsequent settlement. There is no merit to plaintiff's present claim that, because the employer was the only possible active tortfeasor, defendant is obligated to reimburse it for half of the settlement. Although the third-party action did not go forward after the settlement of the main action, the anti-subrogation rule would have required its dismissal, and thus any attempt by plaintiff, after having paid the settlement, to obtain reimbursement from a co-insurer must fail (National Cas. Co. v State Ins. Fund, 227 AD2d 115, 116-117 [1996], lv denied 88 NY2d 813 [1996]).
Castle Village Owners Corp v. Greater New York Mutual Insurance Company

Plaintiff appeals from an order of the Supreme Court, New York County (Helen E. Freedman, J.), entered February 5, 2008, which granted summary judgment to defendant American International Specialty Lines Insurance and declared that the insurer does not have to reimburse plaintiff Castle Village Owners Corp. for the reconstruction of the wall, and an order, same court and Justice, entered July 8, 2008, which denied plaintiff's motion to renew.

William Hart, Scarsdale, and Thelen LLP, New York,  for appellant.
Drinker Biddle & Reath LLP, New York (Mark D. Sheridan, of the State of New
Jersey Bar, admitted pro hac  vice, and Heather M. Hughes  of counsel), for respondent.

NARDELLI, J.
The threshold issue in this declaratory judgment action is whether an exclusion in a commercial umbrella liability policy from coverage for the insured's own property can be circumvented by a claim that ameliorative measures had to be effected to the insured's property so as to prevent or cure damage to adjoining  property. We conclude, in the factual scenario presented, that the policy provision is unambiguous, and that the policy does not provide coverage for the claim.
Plaintiff, Castle Village Owners Corp., is a cooperative corporation which owns land bounded on three sides by a retaining wall. On May 12, 2005, a large section of the wall on the western perimeter of the parcel collapsed, causing a large quantity of debris, including dirt, benches, boulders and other objects, to fall onto an adjacent sidewalk and roadway. The debris caused damage to passing automobiles and surrounding property, and blocked the sidewalk and a portion of the northbound Henry Hudson Parkway.
Plaintiff's primary liability insurer was Greater New York Mutual Insurance Co. (GNY), which provided coverage up to $1,000,000 per occurrence. Plaintiff also had purchased a commercial umbrella liability policy from American International
Specialty Lines Insurance Co. (AISLIC), in the amount of $50,000,000 per occurrence. In pertinent part, however, the AISLIC policy excluded coverage for:
"property you own, rent, or occupy, including any costs or expenses incurred by you, or any other person, organization or entity, for repair, replacement, enhancement, restoration or maintenance of such property for any reason, including prevention of injury to a person or damage to another's property;"
After the collapse, the City of New York issued an emergency declaration, which required certain immediate remediation steps, including the removal of debris, stabilization of the wall, protection against rainwater, and the installation of a temporary means of protection for vehicular traffic. By letter dated May 16, 2005, the City advised Castle Village:
"The referenced [section of retaining wall] has been declared unsafe and in imminent peril. It must be repaired or demolished immediately. The responsibility to take such action is yours and, because of the severity of the condition, the work must begin immediately . . . If you fail to do so, the City will perform the necessary work and seek to recover its expenses from you."
In the days following the collapse, the City retained contractors and engineers to clear the site and the surrounding area of debris, and to perform structural work to prevent further collapse and additional debris from falling on the surrounding sidewalks and roadways.
By letter dated July 5, 2005, the City informed Castle Village that its emergency remediation work had been completed, and it made formal demand upon Castle Village for reimbursement of its alleged costs in the amount of $2,163,067. The letter included a payment certification of approximately $1 million to Trocom Construction Co., the general contractor, for the performance of the "emergency work."
In a letter dated August 5, 2005, Christopher Santulli, then Deputy Borough Commissioner of the City's Department of Buildings, requested plaintiff to provide a work plan for
future project tasks, including a solution to remedy permanently the slope and conditions that led to the wall's failure. In April 2006 Castle Village solicited bids for the performance of the work required by the City. After receiving a request for clarification as to the work needed to be done, the City advised, by letter dated June 5, 2006, that it required plaintiff, inter alia, to repair and stabilize the collapsed wall, which work was to include rebuilding the collapsed portion of the wall, stabilizing and/or regrading the remaining portion of the wall and slopes, and stabilizing the surrounding soil.
During this period of time, GNY and AISLIC had been conducting settlement negotiations with the City with regard to the costs incurred by the City in responding to the emergency. In March 2006, GNY, AISLIC and the City agreed in principle that the City would accept $1,250,000 in settlement of its monetary claim against Castle Village, that GNY would contribute whatever was left of its $1 million policy limit at the time the settlement was concluded, and that AISLIC would pay the difference between $1,250,000 and the amount paid by GNY.
By letter dated October 4, 2006, AISLIC advised Castle Village that, pursuant to settlement negotiations with GNY and the City, AISLIC had preliminarily agreed to pay up to $280,000 in cleanup costs incurred by the City to "secure the area surrounding the Castle Village wall as well as the Henry Hudson Parkway." AISLIC specifically advised Castle Village, however, that its participation in the settlement "shall not operate as a waiver or estop AISLIC from asserting and/or reserving any of its rights, claims and/or defenses under the Policy or at law now or in the future." AISLIC noted that its investigation of the wall collapse was ongoing, and that it was reserving its rights to deny coverage for any claims associated with the wall collapse, including wall restoration. The letter pointedly advised that the policy did not provide coverage for property owned by the insured, and specifically referenced the "owned property" exclusion.
On December 11, 2006, Castle Village advised AISLIC that its primary coverage with GNY had been exhausted as a result of the settlement with the City, and, inter alia, demanded coverage for the restoration work to the wall as required by the City. By letter dated March 12, 2007, AISLIC acknowledged its responsibility to pay for, or at least assume the defense of, certain third-party claims, but denied coverage for permanent wall restoration work.
Castle Village had commenced this action in 2005. To the extent relevant to this appeal, one cause of action is asserted against AISLIC, and seeks a declaration that AISLIC was obligated to defend and indemnify Castle Village against claims arising from the collapse of the wall.
On May 8, 2007 AISLIC moved for summary judgment declaring that no coverage existed for the cost of repair work to Castle Village's wall. In moving, AISLIC acknowledged that it was prepared to defend Castle Village in the third-party actions, but took the position that the "owned property" exclusion absolved it from any liability for repair to the wall itself. Castle Village cross-moved for a declaration in its favor, arguing that, by virtue of the City's directives, it had become legally obligated to perform the remediation work required by the City. It reasoned that the "owned property" exclusion became inapplicable when the City's property was damaged and the City required Castle Village to perform remediation work so that no further damage could occur. Castle Village also claimed that AISLIC did not take a coverage position until it reserved its rights on October 4, 2006, and it did not deny coverage for the remediation work until March 12, 2007, well after the settlement terms had been agreed upon, and long after Castle Village had commenced the remediation work the City required it to perform.
The motion court declared in AISLIC's favor, noting that the policy specifically excludes costs for restoration or repair of the insured's property for any reason, including prevention of injury to person or damage to property of another. The court also held that AISLIC's alleged delay in disclaiming coverage was inapplicable because AISLIC was the excess carrier, and had no duty until the primary coverage was exhausted. Moreover, AISLIC had reserved its rights under the policy exclusion in a letter dated October 4, 2006, before the primary coverage was exhausted.A motion to reargue and renew was denied on July 8, 2008.
On appeal Castle Village asserts that, as a result of the emergency declaration, it was legally obligated to comply with the City's demand and perform the remediation work at issue, including repair of its own property. It reasons that since the policy affords coverage for sums the insured is obligated to pay as a result of liability imposed by law, the effect of the emergency declaration was to render inapplicable the "owned property" exclusion, since the emergency declaration required it to repair the wall.
There are, of course, circumstances where an "owned property" exclusion may not be enforceable because of a legal obligation to prevent damage to another's property. In State of New York v New York Cent. Mut. Fire Ins. Co. (147 AD2d 77 [1989]), the property owner suffered an oil spill from a leak in a fuel line. The State sued the owner's insurer directly to recover the costs of the clean-up, and the insurer argued that the "owned property" exclusion in the policy precluded any liability on its part, since the oil had not migrated to anybody else's property. The court noted that the oil had entered groundwater, which was not the insured's property, but instead was property entrusted to the State by its citizens. Thus, it reasoned, damage had occurred to property belonging to someone other than the insured. Effecting the cleanup of the insured's property was necessary to protect the groundwater.
Likewise, in Don Clark, Inc. v United States Fid. & Guar. Co. (145 Misc 2d 218 [Sup Ct, Onondaga County 1989]), an oil spill on the owner's property was found to endanger groundwater as a result of seepage, and the State directed a cleanup pursuant to its responsibilities under article 12 of the Navigation Law. The court rejected the insurer's claim that it could rely on the "owned property" exclusion in its policy, even though the cleanup was on the insured property, since the creek into which the oil spilled was not property owned by the insured (id. at 220). A similar result was reached by the Second Circuit in Gerrish Corp. v Universal Underwriters Ins. Co. (947 F2d 1023 [2d Cir 1991], cert denied 504 US 973 [1992]).
Central to these cases, and most of those cited by plaintiff, is that there was seepage on the insured's property, usually from an oil spill. The spills also presented a condition hazardous to the property of others, and were not capable of being remedied without the performance of cleanup measures on the insured's property. Furthermore, the conditions were ongoing, and damage was continuing.
By contrast, in this case, after the initial wall collapse and remedial measures, the hazardous condition was significantly mitigated. The possibility of a future collapse presented the need for permanent ameliorative measures, but, unlike those situations involving an oil spill, an imminent, continuing danger no longer existed.
In R & D Maidman Family L.P. v Scottsdale Ins. Co. (4 Misc 3d 728 [Sup Ct, NY County 2004]), upon which Castle Village places a great deal of reliance, a situation more analogous to this case was presented. There plaintiffs had begun demolition on property they owned. After a brick or piece of masonry was dislodged and fell onto an adjoining roof, the New York City Department of Buildings issued notices of violation. In order to cure the condition, the plaintiffs erected a sidewalk bridge, scaffolding and net meshing, and then filed a claim with their insurer to recover the costs expended on their property to mitigate or prevent future damage. Finding that the notices of violation did not give rise to a legal obligation to bear the costs for remedial work that would trigger the indemnification provisions of the commercial general liability policy issued to the plaintiffs, the court initially awarded the defendant insurer summary judgment. The court, however, subsequently reversed itself, in an unpublished decision (Sup Ct, NY County, Oct 1, 2004, Edmead J., index No. 114437/02), and denied the insurer summary judgment, because it concluded that there were issues of fact as to whether the notices of violation were issued because of damage to adjacent property. The court indicated that if such were the case, coverage would attach.
We observe that we are obviously not bound by the Supreme Court's determination in R & D Maidman, but, in any event, we do not agree with the court's rationale that the test as to whether the exclusion should be avoided is whether a legal directive had been issued. The answer to that question is only helpful in ascertaining whether coverage is triggered. If coverage were the only issue, and there were no "owned property" exclusion, Castle Village's damages, including its obligation to repair the wall, would have been covered.
The issue is not coverage, but, rather, the applicability of the exclusion. In determining whether the exclusion applies, the question becomes not whether the City ordered Castle Village to repair its own wall, but, rather, whether repair of the wall was necessary to stop ongoing and imminent damage to property belonging to another, such as in those cases where the threat of oil pollution was continuing.
Here, however, since the emergency work had been completed, the directive to perform repair work was necessary to safeguard against future incidents, and not immediate, recurring harm. Castle Village had an obligation to repair the wall, but it was not an obligation that AISLIC was required to indemnify. Even if there had never been a collapse, the City could have directed repair of the wall, and the "owned property" exclusion would have absolved AISLIC of the obligation to reimburse Castle Village.
Thus, the test for determining whether the exclusion applies must focus on the nexus between the condition of the insured's property and the existence of ongoing and immediate harm to the property of others. Where the harm cannot be cured without performing work on the insured's property, the exclusion is not applicable. On the other hand, in cases like this, where the immediate danger has been corrected, the restorative work to the insured's property will not be covered.
Contrary to plaintiff's contentions, we do not find the language of the exclusion ambiguous. Plaintiff avers that there are two valid interpretations of the "owned property" exclusion. The first is AISLIC's position that it has no obligation under any circumstances, while the second, plaintiff's, is that the exclusion is only applicable when there has been no damage to the property of a third party. We do not construe AISLIC's interpretation to be inconsistent with those cases involving an oil spill, where the insurer was obligated to pay for work necessary to remediate an ongoing situation. Further, we do not find plaintiff's interpretation, that coverage will be available only when there is no third-party damage, to be reasonable. As discussed above, the question of the applicability of the exclusion turns on the nature of the damage, and the nexus of the insured's property to any recurring damage. Thus, there is no need to resort to the general principle that ambiguities should  be construed against the insurer drafter (see e.g. Westview Assoc. v Guaranty Natl. Ins. Co., 95 NY2d 334, 339 [2000]; see also Bovis Lend Lease LMB, Inc. v Royal Surplus Lines Ins. Co., 27 AD3d 84, 94 [2005]). The policy provides coverage for damage to the property of another, and not for the property of the insured. If there is an overlap, work on the insured's property which is necessary to cure (as opposed to prevent) imminent and recurring damage to adjoining property falls outside the exclusion.
Castle Village also argues that AISLIC should be estopped from asserting the "owned property" exclusion because it allegedly delayed in disclaiming coverage, and its participation in the settlement of the City's monetary claim somehow led Castle Village to rely on those negotiations to its detriment.
First, AISLIC's policy provides that it applies "only in excess of the total applicable limits of Scheduled Underlying Insurance." Thus, its obligations were not even triggered until December 2006, when Castle Village notified AISLIC that its primary policy had been exhausted, but this came two months after Castle Village had been put on notice by AISLIC's October 4, 2006 reservation of rights letter that the "owned property" exclusion was applicable to any property owned by Castle Village. As an excess insurer, AISLIC did not have any duty to act until primary coverage was exhausted by payment (see Wilson v Galicia Contr. & Restoration Corp., 36 AD3d 695, 697 [2007], affd 10 NY3d 827 [2008]). 
Although a reservation of rights letter by itself has no relevance to the question of timely notice of disclaimer (see Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1029 [1979]), the October 4 letter specifically advised that coverage was excluded for owned property, and effectively conveyed a coverage position which put Castle Village on notice that the costs of restoration would not be covered.
Finally, there has been no showing that Castle Village, which obviously, and ultimately, needed to repair its wall, was somehow beguiled by AISLIC into believing that AISLIC was going to pay for the restoration. We thus conclude that the plain language of the exclusion supports the conclusion that, in the circumstances presented, Castle Village's cost of restoring the wall was not to be borne by AISLIC.
Accordingly, the order of the Supreme Court, New York County (Helen E. Freedman, J.), entered February 5, 2008, which granted summary judgment to defendant American International Specialty Lines Insurance and declared that the insurer does not have to  reimburse plaintiff Castle Village Owners Corp. for the reconstruction of the wall, and the order of the same court and Justice, entered July 8, 2008, which denied plaintiff's motion to renew, should be affirmed, with one bill of costs.

 

Ayers v. Allstate Insurance Company

Steven F. Goldstein, LLP, Carle Place, N.Y. (Christopher R.
Invidiata of counsel), for respondent.


DECISION & ORDER
In an action to recover damages for economic losses incurred as a result of the defendant's alleged negligent inspection of the plaintiff's motor vehicle following an accident, the defendant appeals from stated portions of an order of the Supreme Court, Nassau County (Winslow, J.), entered June 27, 2008, which, inter alia, denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff alleges that he sustained economic loss as a result of the negligent inspection of his truck, which was damaged in an accident, by the defendant, his insurer. The plaintiff contends that if the defendant had properly declared the vehicle a total loss upon its original inspection, instead of directing that it be repaired, he could have avoided certain losses, including loss of business and the cost of repairs and of obtaining replacement vehicles during the months while his vehicle was being repaired.
The Supreme Court correctly determined that the defendant did not establish, prima facie, its entitlement to judgment as a matter of law. Disputes as to the facts surrounding the alleged losses preclude the granting of summary judgment, particularly at the pre-discovery stage.
The defendant's remaining contentions are without merit.
Knight v. Motor Vehicle Accident Indemnification Corporation


Cruz & Gangi and Associates (Connors & Connors, P.C., Staten
Island, N.Y. [Robert J. Pfuhler] of counsel), for appellant.
Nicholas Martino, Jr., Staten Island, N.Y., for respondent.


DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Richmond County (Maltese, J.), dated February 12, 2008, which denied its motion to dismiss the complaint, in effect, for failure to comply with Insurance Law article 52 and granted the plaintiff's cross motion for leave to commence this action nunc pro tunc.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the cross motion is denied.
Contrary to the Supreme Court's determination, the plaintiff did not establish that he was a "qualified person" entitled to the protection provided by the defendant, Motor Vehicle Accident Indemnification Corporation (hereinafter MVAIC), pursuant to Insurance Law § 5208(a) governing motor vehicle accidents caused by financially irresponsible motorists (see generally Naula v Dela Puente, 48 AD3d 434; Barillas v Rivera, 32 AD3d 872). Insurance Law § 5202(b)(i) excepts "an insured" from the definition of a "qualified person" thereunder. In opposition to MVAIC's motion to dismiss and in support of his cross motion, the plaintiff asserted that the motorcycle he was operating at the time of the accident was owned by nonparty Elston Wilson, who "had coverage for bodily injury [but] did not have coverage for uninsured motorist or no-fault benefits, since [such coverage is] not required under the No-Fault law" for motorcycles.
Contrary to the plaintiff's assertion, motorcycles are not exempt from the requirement that the owner obtain an endorsement for uninsured motorists coverage (see Matter of Country-Wide Ins. [*2]Co. v Wagoner, 45 NY2d 581, 586-587; Matter of Kenyon, 105 AD2d 530; see also Insurance Law § 5202[a]; cf. Matter of Progressive Northeastern Ins. Co. v Scalamandre, 51 AD3d 932, 933; Matter of Nationwide Mut. Ins. Co. v Riccadulli, 183 AD2d 111). Further, if the endorsement is not expressly included in a policy, it will be implied (see Matter of Kenyon, 105 AD2d at 532). Moreover, the plaintiff failed to proffer evidence sufficient to establish that he was uninsured, as he did not submit the policy of insurance pertaining to the motorcycle and, thus, failed to support his assertions regarding the scope of coverage under that policy (see Kilpatrick v Utica Ave. Auto Sales, Inc., 270 AD2d 233; Muhammad v Diaz, 198 AD2d 32; Bell v Morris, 169 Misc 2d 1062). Accordingly, the Supreme Court should have granted MVAIC's motion to dismiss the complaint, in effect, for failure to comply with Insurance Law article 52.
For the same reason, there was no basis for granting the plaintiff's cross motion pursuant to Insurance Law § 5208(b)(2) for leave to commence this action nunc pro tunc, as the plaintiff failed, as a threshold matter, to demonstrate that he was uninsured (see generally Matter of Rice v Allstate Ins. Co., 32 NY2d 6, 10; Insurance Law § 5202[b][i]).
The parties' remaining contentions either are without merit or need not be reached in light of our determination.
Sputnik Restaurant Corp. v. United National Insurance Company


Mitchell & Incantalupo, Forest Hills, N.Y. (Thomas V.
Incantalupo of counsel), for plaintiffs-appellants.
Miller, Montiel & Strano, P.C., Roslyn Heights, N.Y. (David
M. Strano of counsel), for
defendants-appellants.
Miranda Sambursky Slone Sklarin Verveniotis, LLP,
Mineola, N.Y. (Michael A. Miranda of
counsel), for respondent.


DECISION & ORDER
In an action for a judgment declaring the rights and obligations of the parties with respect to a commercial liability insurance policy, the plaintiffs appeal, and the defendants Giacomo Camarda and Raffaela Camarda separately appeal, from an order of the Supreme Court, Queens County (Satterfield, J.), dated May 15, 2008, which granted the motion of the defendant United National Insurance Company for summary judgment declaring that it is not obligated to defend and indemnify them in an action entitled Camarda v Esquire Diner, pending in the Supreme Court, Queens County, under index No. 22426/05.
ORDERED that the order is affirmed, with costs, the action against the defendant United National Insurance Company is severed, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that it is not obligated to defend and indemnify the plaintiffs in the underlying action.
" Where an insurance policy requires that notice of an occurrence be given promptly, notice must be given within a reasonable time in view of all of the facts and circumstances'" (Zeldin v Interboro Mut. Indem. Ins. Co., 44 AD3d 652, 652, quoting Eagle Ins. Co. v Zuckerman, 301 AD2d 493, 495; see Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339; White v City of New York, [*2]81 NY2d 955, 957). The requirement that an insured comply with the notice provision of an insurance policy operates as a condition precedent to coverage (see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 440; Quality Inves., Ltd. v Lloyd's London, England, 11 AD3d 443). Absent a valid excuse for a delay in furnishing notice, failure to satisfy the notice requirement vitiates coverage (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743; Eagle Ins. Co. v Zuckerman, 301 AD2d at 495).
Here, the defendant United National Insurance Co. (hereinafter United) established its prima facie entitlement to judgment as a matter of law by demonstrating that it was not notified of the accident until approximately 11 months had elapsed (see White v City of New York, 81 NY2d at 957; Jordan Constr. Prods. Corp. v Travelers Indem. Co. of Am., 14 AD3d 655, 656). Once United established its prima facie entitlement to judgment, the burden shifted to the plaintiffs to raise a triable issue of fact as to whether there existed a reasonable excuse for their delay in notifying United (see Argentina v Otsego Mut. Fire Ins. Co., 86 NY2d 748, 750). The plaintiffs failed to do so (see Seneca Ins. Co. v W.S. Distrib., Inc., 40 AD3d 1068, 1070; Blue Ridge Ins. Co. v Biegelman, 36 AD3d 736).
Moreover, although an injured party has an independent right to give notice to an insurer, and is not to be charged vicariously with an insured's delay (see Insurance Law § 3420[a]; Maldonado v C.L.-M.I. Props., Inc., 39 AD3d 822, 823; Seneca Ins. Co. v W.S. Distrib., Inc., 40 AD3d at 1070; Becker v Colonial Coop. Ins. Co., 24 AD3d 702, 704), here, the injured defendants, Giacomo Camarda and Raffaela Camarda, did not exercise their right to timely notify United of their claim. Accordingly, the Supreme Court properly granted summary judgment to United declaring that it is not obligated to defend and indemnify the plaintiffs.
Since this is a declaratory judgment action, the matter must be severed against United and remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that it is not obligated to defend and indemnify the plaintiffs in the underlying action (see Lanza v Wager, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).
Kin Chong Ku v. Baldwin-Bell


Tromello, McDonnell & Kehoe, Melville, N.Y. (Stephen J.
Donnelly 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, Queens County (Rosengarten, J.), entered May 12, 2008, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
The Supreme Court correctly determined that the defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact.
The plaintiff's submissions were insufficient to raise a triable issue of fact as to whether he sustained a serious injury under the significant limitation of use and/or the permanent consequential limitation of use categories of Insurance Law § 5102(d) since those submissions were not based on a recent examination of the plaintiff (see Diaz v Lopresti, 57 AD3d 832; Soriano v Darrell, 55 AD3d 900; Diaz v Wiggins, 271 AD2d 639; Kauderer v Penta, 261 AD2d 365; Marin v Kakivelis, 251 AD2d 462). The plaintiff also failed to submit competent medical evidence that the injuries he allegedly sustained in the subject accident rendered him unable to perform substantially all of his daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Sainte-Aime v Ho, 274 AD2d 569). The plaintiff admitted in his deposition testimony that he missed only two days from work as a result of the subject accident.
McCarthy v. Gagne


Brody, O'Connor & O'Connor, Northport, N.Y. (Thomas M.
O'Connor and Patricia A. O'Connor of counsel), for appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White
Plains, N.Y. (Glen Feinberg of
counsel), for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Kramer, J.), entered November 27, 2007, 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 reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
Contrary to the Supreme Court's determination, the defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY22d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motion for summary judgment, the defendants relied on, among other documents, the affirmed medical reports of Dr. Robert Zaretsky, Dr. Alan Zimmerman, and Dr. Philip G. Taylor. In his report, Dr. Zaretsky, an orthopedic surgeon who examined the plaintiff on October 10, 2005, provided range-of-motion findings with respect to the plaintiff's left shoulder, yet he failed to compare all of those findings to what is normal (see Banguela v Babbo, 51 AD3d 833; Page v Belmonte, 45 AD3d 825; Malave v Basikov, 45 AD3d 539; Fleury v Benitez, 44 AD3d 996; Nociforo v Penna, 42 AD3d 514). The same deficiencies are found in the reports of Dr. Zimmerman and Dr. Taylor. Dr. Zimmerman, an orthopedic surgeon who evaluated the plaintiff on December 6, 2005, noted in his report range-of-motion findings with respect to the plaintiff's cervical spine, yet he failed to compare those findings to what is normal. Dr. Taylor, the defendants' examining orthopedic surgeon, set forth in his report range-of-motion findings with respect to, inter alia, the plaintiff's cervical spine, however he failed to compare those findings to what is normal.
Since the defendants failed to meet their initial prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Banguela v Babbo, 51 AD3d 833; Coscia v 938 Trading Corp., 283 AD2d 538).
McMillian v. Naparano


Buratti, Kaplan, McCarthy & McCarthy, Yonkers, N.Y. (Cristin
E. Calvi of counsel), for appellant.
Larkin, Axelrod, Ingrassia & Tetenbaum, LLP, Newburgh,
N.Y. (Michael Rabiet of counsel), for
respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Orange County (McGuirk, J.), dated August 15, 2008, as 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 insofar as appealed from, with costs.
While we affirm the order insofar as appealed from, we do so on a ground other than that relied upon by the Supreme Court. The Supreme Court erred in concluding that 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). The defendant failed to satisfy his burden with respect to the plaintiff's allegation that he sustained a left knee injury as a result of the subject accident (see Monkhouse v Maven Limo, Inc., 44 AD3d 630; O'Neal v Bronopolsky, 41 AD3d 452; Hughes v Cai, 31 AD3d 385; Loadholt v New York City Tr. Auth., 12 AD3d 352).
Since the defendant failed to satisfy his prima facie burden, it is unnecessary to consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Monkhouse v Maven Limo, Inc., 44 AD3d 630; Coscia v 938 Trading Corp., 283 AD2d 538).
Thomas v. Weeks


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff Esther Thomas appeals from an order of the Supreme Court, Kings County (Hinds-Radix, J.), dated October 5, 2007, which granted the motion of the defendant Colin Weeks for summary judgment dismissing the complaint insofar as asserted by her against that defendant 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.
The defendant Colin Weeks met his prima facie burden of showing that the plaintiff Esther Thomas (hereinafter the appellant) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the appellant did not raise a triable issue of fact. The affirmation and annexed reports of Dr. Michael Daras, the appellant's treating neurologist, failed to raise a triable issue of fact. While Daras noted significant range-of-motion limitations in the appellant's cervical spine during examinations in September 2003 and October 2003, and deemed the appellant's injuries permanent in his affirmation dated September 6, 2007, he failed to reconcile those findings with the findings he made on November 20, 2003, January 12, 2004, and July 19, 2007, where he found that the appellant had full range of motion in her cervical spine (see Carrillo v DiPaola, 56 AD3d 712; Magarin v Kropf, 24 AD3d 733; Powell v Hurdle, 214 AD2d 720; Antorino v Mordes, 202 AD2d 528). At no point in time did Daras ever test the appellant's left knee range of motion, and he found on several dates that the appellant had full range of motion in her lumbar spine.
Moreover, neither the appellant nor Daras adequately explained the 3½-year gap in her treatment between January 2004 and July 2007 (see Pommells v Perez, 4 NY3d 566; Strok v Chez, 57 AD3d 887; Sapienza v Ruggiero, 57 AD3d 643).
The appellant's affidavit was insufficient to raise a triable issue of fact (see Sapienza v Ruggiero, 57 AD3d 643; Sealy v Riteway-1, Inc., 54 AD3d 1018, 1019; Shvartsman v Vildman, 47 AD3d 700).
Lastly, the appellant failed to submit competent medical evidence that the injuries she allegedly sustained in the subject accident rendered her unable to perform substantially all of her usual and customary daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Rabolt v Park, 50 AD3d 995; Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Sainte-Aime v Ho, 274 AD2d 569).
Alam v. Karim


Baker, McEvoy, Morrrissey & Moskovits, P.C., New York, N.Y.
(Thomas Torto and Jason Levine of counsel), for appellants.
Dalli & Marino, LLP (Pollack, Pollack, Isaac & De Cicco,
New York, N.Y. [Brian J. Isaac and
Jillian Rosen] of counsel), for
respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Battaglia, J.), entered October 3, 2008, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
While we affirm the order appealed from, we do so on a ground other than that relied upon by the Supreme Court. The Supreme Court erred in concluding that the defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motion, the defendants relied, inter alia, on the affirmed medical report of their examining orthopedic surgeon, David Hsu. During his examination of the plaintiff on January 17, 2008, Dr. Hsu conceded the existence of significant limitations in the plaintiff's right shoulder and lumbar spine ranges of motion (see Bagot v Singh, 59 AD3d 368; 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). In fact, he concluded in his report that the plaintiff still had ongoing positive indications that the plaintiff's injuries were unresolved more than a year and a half after the accident. Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, it is unnecessary to consider the sufficiency of the plaintiff's opposition papers (see Bagot v Singh, 59 AD3d 368; Coscia v 938 Trading Corp., 283 AD2d 538).
Baldessari v. Caines


Bergman, Bergman, Goldberg & Lamonsoff, LLP, Forest Hills,
N.Y. (Julie T. Mark and Allen Goldberg of counsel), for appellant.
Muscarella & DiRaimo, LLP, Mamaroneck, N.Y. (Mead,
Hecht, Conklin & Gallagher, LLP
[Elizabeth M. Hecht], of counsel), for
respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals (1), as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, J.), dated June 26, 2007, as denied that branch of her cross motion which was to deny the defendants' motion for summary judgment as untimely, and (2) from an order of the same court entered January 10, 2008, which granted the defendants' 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 dated June 26, 2007, is reversed insofar as appealed from, on the law, that branch of the cross motion which was to deny the defendants' motion for summary judgment as untimely is granted, and the order entered January 10, 2008, is vacated; and it is further,
ORDERED that the appeal from the order entered January 10, 2008, is dismissed as academic in light of our determination on the appeal from the order dated June 26, 2007; and it is further,
ORDERED that the plaintiff is awarded one bill of costs.
The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff's cross motion which was to deny the defendants' motion for summary judgment on the ground that the motion was untimely. The defendants concede that their summary judgment motion was made beyond the time period set forth in the court's certification order (see CPLR 3212[a]). While such a motion may nevertheless be entertained with leave of court on good cause shown (see Miceli v State Farm Mut. Auto Ins. Co., 3 NY3d 725; Brill v City of New York, 2 NY3d 648), the defendants' "perfunctory claims of unspecified clerical inadvertence and reassignment of counsel were insufficient to constitute good cause for the delay" (Breiding v Giladi, 15 AD3d 435; see Brill v City of New York, 2 NY3d 648; Sanango v Generoso, 13 AD3d 349; Gibbs v McRide Cab Co., 10 AD3d 671). Accordingly, that branch of the plaintiff's cross motion which was to dismiss the defendant's motion for summary judgment on the ground that it was untimely should have been granted. Additionally, the motion for summary judgment should not have been entertained, and thus the order entered January 10, 2008, which granted the defendants' motion for summary judgment, is vacated.
Berson v. Rosada Cab Corp.


Bennett, Giuliano, McDonnell & Perrone, LLP, New York, N.Y.
(Jeffrey R. Krantz and Matthew J. Cowan of counsel), for
appellants.
Yohan Choi, New York, N.Y. (Jonathan S. Horn 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 (Hurkin-Torres, J.), dated October 12, 2007, which denied their motion for summary judgment dismissing the complaint on the ground that they were not at fault in the happening of the accident and their separate 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, the defendants' 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) is granted, and the defendants' motion for summary judgment dismissing the complaint on the ground that they were not at fault in the happening of the accident is denied as academic.
This action arose from a two-car accident which occurred in Manhattan at the intersection of West 57th Street and 11th Avenue. The plaintiff commenced this action alleging that, as a result of the accident, he sustained serious injuries within the meaning of Insurance Law § 5102(d). The defendants moved for summary judgment dismissing the complaint on the ground that they were not at fault in the happening of the accident and separately moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury. In the order appealed from, the Supreme Court denied the motions, and we reverse the order.
The defendants established their prima facie entitlement to judgment as a matter of law by submitting the affirmed report of their orthopedist, who examined the plaintiff and concluded that he had a normal orthopedic examination (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352; Gaddy v Eyler, 79 NY2d 955, 956-957; Kearse v New York City Tr. Auth., 16 AD3d 45, 51-53; Lowell v Peters, 3 AD3d 778, 779). At his deposition, the plaintiff testified that, as a result of the subject motor vehicle accident, he missed only two or three days from his job as a computer designer. The plaintiff's alleged injuries did not prevent him from performing substantially all of the material acts constituting his usual and customary daily activities during at least 90 out of the first 180 days following the accident (see Geliga v Karibian, Inc., 56 AD3d 518, 519; Sanchez v Williamsburg Volunteer of Hatzolah, Inc., 48 AD3d 664, 665; Sainte-Aime v Ho, 274 AD2d 569, 570). In opposition, the plaintiff failed to raise a triable issue of fact as to serious injury (see CPLR 3212[b]; Hagan v Thompson, 239 AD2d 420). Although the plaintiff's medical expert indicated in his affirmation that he examined the plaintiff contemporaneously with the motor vehicle accident, he failed to properly set forth his findings of restricted motion in the plaintiff's cervical spine and compare the findings to the plaintiff's normal range of motion (see Morris v Edmond, 48 AD3d 432, 433; Umar v Ohrnberger, 46 AD3d 543; Sullivan v Dames, 28 AD3d 472). Accordingly, the defendants are entitled to 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).
Bonilla v. Tortoriello


Cannon & Acosta, LLP, Huntington Station, N.Y. (June Redeker
of counsel), for appellants.
Richard T. Lau & Associates, Jericho, N.Y. (Kathleen E.
Fioretti of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiffs appeal from so much of an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated February 28, 2008, as granted the defendant's motion for summary judgment dismissing the complaint on the ground that none of them sustained a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Maria Angela Joya and substituting therefor a provision denying that branch of the defendant's motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The Supreme Court properly determined that the defendant met her prima facie burden of showing that none of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the plaintiffs Jose D. Bonilla and Maria C. Joya sustained serious injuries within the meaning of the no-fault statute. The plaintiffs principally relied upon the affirmations of their treating physician, Dr. Joseph Perez; however neither Dr. Perez nor those plaintiffs provided an adequate explanation for the lengthy gaps in their treatment (see Pommells v Perez, 4 NY3d 566; see also McNeil v Dixon, 9 AD3d 481; Sibrizzi v Davis, 7 AD3d 691).
As to the plaintiff Maria Angela Joya (hereinafter Maria Angela), the affirmation of Dr. Perez was sufficient to raise a triable issue of fact. Dr. Perez opined, based on his contemporaneous and most recent examinations of Maria Angela, as well as upon his review of her magnetic resonance imaging report, which showed, inter alia, bulging discs at T1-2, T6-7 and T11-12, that Maria Angela's thoracic injuries and observed range of motion limitations were permanent and causally related to the subject accident. He also opined that Maria Angela sustained a significant limitation of use of her thoracic spine. This submission was sufficient to raise a triable issue of fact as to whether, as a result of the subject accident, Maria Angela sustained a serious injury to her thoracic spine under the significant limitation of use or the permanent consequential limitation of use categories of Insurance Law § 5102(d) (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).
Contrary to the determination of the Supreme Court, Maria Angela provided an adequate explanation for the lengthy gap in her treatment history. Dr. Perez stated in his affirmation that in early June 2005 he concluded that she had reached her maximum medical improvement and advised her that any further treatment at that time would have been merely palliative in nature (see Pommells v Perez, 4 NY3d at 577; see also Shtesl v Kokoros, 56 AD3d 544, 546-547).
Casco v. Cocchiola


Dominick W. Lavelle, Mineola, N.Y., for appellant.
Stewart H. Friedman, Lake Success, N.Y. (Michael Dantuono
of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, J.), dated March 3, 2008, as granted that branch of the defendant's motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court correctly determined that the defendant met her prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) 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 limitation noted by the defendant's examining orthopedic surgeon concerning the plaintiff's lumbar flexion was insignificant in nature.
In opposition, the plaintiff failed to raise a triable issue of fact. The vast majority of the submissions by the plaintiff's treating chiropractor, Christopher Skurka, were without any probative value since they were not presented in affidavit form, or otherwise subscribed before a notary (see Kunz v Gleeson, 9 AD3d 480; Santoro v Daniel, 276 AD2d 478; Doumanis v Conzo, 265 AD2d 296). Furthermore, neither the plaintiff nor Skurka adequately explained the essential cessation of the plaintiff's treatment after seven months of physical therapy (see Pommells v Perez, 4 NY3d 566, 574). In this respect, the plaintiff admitted during his deposition testimony that he stopped treatment after seven months because he felt better (see Abreu v Bushwick Bldg. Prods. & Supplies, LLC, 43 AD3d 1091). The only other medical submissions offered by the plaintiff in opposition to the defendant's motion were the affirmed magnetic resonance imaging reports referable to the cervical and lumbar regions of his spine, which revealed the existence of a disc protrusion at C3-4 and a disc herniation at L5-S1. The mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration (see Sealy v Riteway-1, Inc., 54 AD3d 1018; Kilakos v Mascera, 53 AD3d 527; Cerisier v Thibiu, 29 AD3d 507; Bravo v Rehman, 28 AD3d 694; Kearse v New York City Tr. Auth., 16 AD3d 45).
The plaintiff's remaining contentions are without merit.
DiLernia v. Khan


Rappaport, Glass, Greene & Levine, LLP, Hauppauge, N.Y.
(Matthew J. Zullo of counsel), for appellants.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York,
N.Y. (Stacy R. Seldin of counsel), for
respondents Abdul M. Khan and Jean
M. Prince.
Richard T. Lau, Jericho, N.Y. (Joseph G. Gallo of counsel), for
respondents Sarah S. Morse and Sarah
C. Morse.

DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Dollard, J.), dated February 27, 2008, which granted the motion of the defendants Sarah S. Morse and Sarah C. Morse for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff Anthony DiLernia did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and denied, as academic, the plaintiffs' cross motion for summary judgment on the issue of liability.
ORDERED that the appeal from so much of the order as denied the plaintiffs' cross motion for summary judgment on the issue of liability insofar as asserted against the defendants Abdul M. Khan and Jean M. Prince is dismissed as academic in light of our determination searching the record and awarding summary judgment dismissing the complaint insofar as asserted against those defendants; and it is further,
ORDERED that the order is affirmed insofar as reviewed, with one bill of costs, and upon searching the record, summary judgment is awarded to the defendants Abdul M. Khan and Jean M. Prince dismissing the complaint insofar as asserted against them.
On appeal, the plaintiffs do not raise any arguments relating to the Supreme Court's determination that the defendants Sarah S. Morse and Sarah C. Morse met their prima facie burden of showing that the plaintiff Anthony DiLernia 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 AD2d 955, 956-957). In opposition, the plaintiffs failed to raise a triable issue of fact. Initially, the reports they submitted from Dr. Fred Jones, the injured plaintiff's treating chiropractor, were without probative value since they were not in affidavit form (see Kunz v Gleeson, 9 AD3d 480; Doumanis v Conzo, 265 AD2d 296).
The report of Dr. Ali Guy, the injured plaintiff's examining physician, failed to raise a triable issue of fact because, while he noted significant limitations in the range of motion of the injured plaintiff's lumbar spine based on a recent examination, neither he nor the plaintiffs proffered competent medical evidence which revealed the existence of significant limitations in the range of motion of the injured plaintiff's lumbar spine that were contemporaneous with the subject accident (see Leeber v Ward, 55 AD3d 563; Ferraro v Ridge Car Serv., 49 AD3d 498; D'Onofrio v Floton, Inc., 45 AD3d 525).
Finally, the plaintiffs failed to submit competent medical evidence that the injuries allegedly sustained by the injured plaintiff in the subject accident rendered him unable to perform substantially all of his daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Sainte-Aime v Ho, 274 AD2d 569).
This Court has the authority to search the record and award summary judgment to a nonappealing party with respect to an issue that was the subject of the motion before the Supreme Court (see Garcia v Lopez 59 AD3d 593; Michel v Blake, 52 AD3d 486; Marrache v Akron Taxi Corp., 50 AD3d 973; Colon v Vargas, 27 AD3d 512, 514; cf. Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430). Upon searching the record, we award summary judgment to the defendants Abdul M. Khan and Jean M. Prince dismissing the complaint insofar as asserted against them on the ground that the injured plaintiff did not sustain a serious injury within the meaning of the no-fault statute (see CPLR 3212[b]).
Linton v. Nawaz


Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for appellants.
Law Offices of Mark S. Gray, New York (Peter J. Eliopoulos of
counsel), for respondents.
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered December 26, 2007, which denied defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff John Linton did not sustain a serious injury within the meaning of Insurance Law § 5102(d), modified, on the law, to grant the motion to the extent of dismissing plaintiff's claim that he sustained a medically determined injury of a non-permanent nature that prevented him from performing substantially all of his usual and customary activities for 90 of the 180 days immediately following the accident, and otherwise affirmed, without costs.
This action arises out of a motor vehicle accident which occurred on August 29, 2002. Plaintiff, a pedestrian, was struck by a taxicab owned by defendant Chire Taxi, Inc. and operated by defendant Muhammad Nawaz. After striking plaintiff, the cab
jumped the curb and, in the process, pushed plaintiff's body into a mailbox. Bleeding from his right knee and right ankle, plaintiff was transported by ambulance to Mt. Sinai Hospital, where he was examined and prescribed pain medication before being released. Plaintiff was unable to stand or walk in the days immediately following the accident, and experienced radiating neck and back pain.
Eight days after the accident, plaintiff consulted with Noel Fleischer, M.D., a neurologist, who examined him and made an initial diagnosis of traumatic cervical and lumbar radiculopathy and internal derangements of the left knee and right shoulder. MRIs prescribed by Dr. Fleischer revealed a tear of the right rotator cuff, a tear of the left medial meniscus, and multiple cervical disc herniations. Plaintiff continued to treat with Dr. Fleischer and to receive physical therapy. However, as of four years after the accident, Dr. Fleischer considered plaintiff's prognosis for full recovery to be "guarded" and found him to be "functionally impaired." Plaintiff missed three and one-half months of work immediately after the accident.
Plaintiff alleged in his bill of particulars that as a result of the accident he sustained permanent injuries to his lumbosacral and cervical spines, his left knee and his right shoulder. He claimed that his injuries met the definition of "serious injury" in Insurance Law § 5102 because he suffered a
permanent consequential limitation of use of a body organ or member and/or a significant limitation of a body function or system. He also stated that he had medically determined injuries of a non-permanent nature that prevented him from performing his usual and daily activities for more than 90 of the first 180 days following the accident.
Defendants moved for summary judgment on the basis that plaintiff did not sustain a serious injury. Their motion relied on the affirmed reports of Audrey Eisenstadt, M.D., a radiologist, and Nicholas Stratigakis, M.D., an orthopedist who had performed an examination of plaintiff. In her report, Dr. Eisenstadt stated that she had reviewed MRI films taken within five weeks of the accident of plaintiff's right shoulder, left knee and cervical spine. She said that the MRI of the left knee revealed:
"a small area of a bone contusion. The bone contusion should heal without sequela. The grade II mucoid degenerative signal change is as the name implies, an intrasubstance, degenerative process without traumatic basis of causal relationship to the accident. Not even a joint effusion to suggest any significant trauma to this knee is noted. I agree...as to the presence of a contusion of the medial femoral condyle and medial tibial plateau. I agree with the presence of grade II linear signal change in the medial meniscus. However, no abnormality is seen in the medial collateral ligament. No joint effusion is noted. No post-traumatic changes are seen."
As to the cervical spine, Dr. Eisenstadt interpreted the MRI as containing "evidence of longstanding, pre-existing, degenerative disc disease." She stated that bony changes along the spine were "greater than six months in development and due to [the] extent are more likely years in origin. These changes could not have occurred in the time interval between examination and injury and clearly predate the accident." She acknowledged the presence of disc bulges but opined that they were chronic and degenerative in nature, and that they pre-dated the accident.
Finally, Dr. Eisenstadt wrote that the MRI revealed a partial tear of the distal supraspinatus tendon in the right shoulder but that the shoulder was otherwise normal. Although she stated that "[t]he etiology is uncertain based on this single study," she found that the "absence of a joint effusion is clearly indicative of the lack of significant recent trauma."
In his report, Dr. Stratigakis stated that plaintiff denied a history of injury to, or pain in, the spine, right shoulder or left knee. Dr. Stratigakis wrote that he examined plaintiff's neck, back, right shoulder and left knee. He compared the ranges of motion in the neck, back and shoulder to the normal ranges of motion and concluded that plaintiff had full range of motion in all planes. His examination of the knees revealed "flexion to 130 degrees, extension to 0 degrees and internal and external [sic] to 10 degrees." However, he did not state the normal ranges of motion for the knees. Moreover, Dr. Stratigakis failed to identify what objective tests he performed on plaintiff which led him to conclude that he had full ranges of motion in the spine, right shoulder and left knee. Dr. Stratigakis concluded that plaintiff had sustained sprains and strains to the injured body parts, all of which had resolved. He further found there to be no objective evidence of disability and no residual effects or permanency.
In opposition to the motion, plaintiff submitted his own affidavit, as well as the affirmation of Dr. Fleischer. Dr. Fleischer explained in his affirmation that plaintiff first came to see him on September 6, 2002, 8 days after the accident. He related that plaintiff complained to him during that initial consultation of injuries to his left knee and right shoulder, of neck pain radiating into his right shoulder and right arm with numbness. He also said he had lower back pain radiating to his left leg, and difficulty walking and sleeping. All of the complaints plaintiff made to Dr. Fleischer were related to the accident.
Dr. Fleischer stated that he examined plaintiff and found cervical and dorsal spasm and tenderness with impaired range of motion, especially on extension, lateral flexion and rotation. He also noted lumbosacral spasm and tenderness with impaired range of motion on all planes, as well as tenderness and swelling of the left knee, right shoulder and right ankle. Dr. Fleischer performed the straight leg raising test, which was positive bilaterally at 45 degrees. He found that plaintiff's gait and station were antalgic and that his heel/toe walk demonstrated weakness.
Dr. Fleischer further recounted that he prescribed physical therapy, MRI scans and an EMG test. The MRIs of plaintiff's right shoulder, left knee and cervical spine were taken in September 2002 and October 2002. He explained that the MRI of plaintiff's right shoulder revealed a tear of the rotator cuff, that the MRI of the left knee revealed a tear of the medial meniscus, and that the MRI of plaintiff's cervical spine showed multiple disc herniations at C3 through C7. The EMG, he noted, confirmed evidence of a right C6-C7 radiculopathy and bilateral carpal tunnel syndrome.
The affirmation detailed the subsequent history of plaintiff's treatment and recovery. In that regard, Dr. Fleischer stated that plaintiff continued to receive physical therapy, although the frequency of his sessions had decreased over time. He further stated that plaintiff continued to complain to him of intermittent headaches, dizziness and neck pain radiating towards his right shoulder and arm. He also complained that his lower back pain was becoming progressively worse. Indeed, Dr. Fleischer asserted that he had examined plaintiff at a recent office visit and that there was tenderness in the cervical and lumbar spines and an impaired range of motion. He also found tenderness in the right shoulder and left knee. The straight leg raising test was again positive.
Dr. Fleischer concluded by stating that plaintiff's prognosis for a full recovery is poor, and that his injuries are permanent. He further stated that
"It is my professional opinion, with a reasonable degree of medical certainty that given the findings of my exam, plaintiff, John Linton's, injuries were causally related to his motor vehicle accident of August 29, 2002 and consistent with the type of injury that he sustained. Plaintiff, John Linton, requires further treatment, including additional physical therapy for pain management, and surgical debridement and/or other intervention. Further, it is very likely that plaintiff, John Linton, will develop arthritis as a result of his injuries.
"Based upon my examination of Mr. Linton, my review of his medical records, and the long duration of his pain and injuries, I can state with a reasonable degree of medical certainty that the foregoing injuries which were proximately and directly caused by the motor vehicle accident of August 29, 2002 are of a permanent nature. Mr. Linton has sustained a significant, consequential, permanent limitation and permanent impairment of his neck, back, left knee and right shoulder."

The motion court denied defendants' motion [FN1]. It held that defendants failed to meet their initial burden of submitting proof in admissible form demonstrating the absence of any material issues of fact and their entitlement to judgment as a matter of law. This, the court stated, was because Dr. Stratigakis failed to address the MRIs or to describe any of the objective medical tests that led him to conclude that plaintiff had full range of motion in each of the body parts at issue. While the court allowed that Dr. Eisenstadt's affirmed report may have cured Dr. Stratigakis's failure to address the MRIs, it held that her report did not cure his failure to identify the objective tests he utilized. The court further stated that while defendants' failure to meet their initial burden rendered any consideration of plaintiff's papers unnecessary, Dr. Fleischer's affirmation created a genuine issue of fact by stating that "[h]e found impaired range of motion in the spine and other deficits and permanent conditions arising from the injuries sustained by the plaintiff in the subject accident."
In a motor vehicle case, a defendant moving for summary judgment on the issue of whether the plaintiff sustained a serious injury has the initial burden of presenting competent evidence establishing that the injuries do not meet the threshold (see Wadford v Gruz, 35 AD3d 258 [2006]). The defendant cannot satisfy that burden if it presents the affirmation of a doctor which recites that the plaintiff has normal ranges of motion in the affected body parts but does not specify the objective tests performed to arrive at that conclusion (see Lamb v Rajinder, 51 AD3d 430 [2008]). Here, Dr. Stratigakis failed to state what, if any, objective tests he utilized when examining plaintiff which led him to conclude that plaintiff had full ranges of motion in his cervical and lumbar spines, right shoulder and left knee and that the alleged injuries to those body parts had fully resolved. Accordingly, defendants failed to shift the burden to plaintiff to demonstrate that an issue of fact existed as to whether any of plaintiff's alleged injuries constituted a permanent consequential limitation of use a body organ or member and/or a significant limitation of a body function or system.
Defendants did shift the burden, however, on the question of whether the injuries to plaintiff's cervical spine and left knee were caused by the accident. This they accomplished by submitting the affirmation of Dr. Eisenstadt, to the extent that it asserted that the abnormalities appearing on the MRIs of the cervical spine and left knee of those body parts were degenerative in nature and pre-existed the accident. However, they did not shift the burden on the question of whether the partial tear in plaintiff's right shoulder was precipitated by the accident. Her acknowledgment that the "etiology is uncertain" and her inability to attribute a reason for the tear rendered her opinion that it was not caused by the accident "too equivocal to satisfy defendant's prima facie burden to show that [the tear] was not caused by a traumatic event." (Glynn v Hopkins, 55 AD3d 498 [2008]).
Nevertheless, the motion court properly denied summary judgment to defendants because plaintiff raised an issue of fact regarding causation. Specifically, Dr. Fleischer concluded that plaintiff's symptoms were related to the accident. This was not a speculative or conclusory opinion (compare Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). To the contrary, it was based on a full physical examination of plaintiff made within days of the onset of plaintiff's complaints of pain and other symptoms, which plaintiff told him ensued after he was involved in a traumatic accident. Clearly, this was sufficient to raise a triable issue as to whose medical opinion was worthy of greater weight - Dr. Fleischer's or Dr. Eisenstadt's (see Etminan v Sasson, 51 AD3d 623 [2008]; Harper v St. Luke's Hosp., 224 AD2d 350, 351 [1996]).
Defendants argue that Dr. Fleischer's affirmation failed to create an issue of fact because it did not expressly address Dr. Eisenstadt's opinion that the left meniscal tear and cervical bulges and herniations were degenerative in nature. However, Dr. Fleischer's affirmation did reject Dr. Eisenstadt's opinion by attributing the injuries to a different, yet altogether equally plausible, cause, that is, the accident. Moreover, Dr. Fleischer's affirmation is entitled to considerable weight here. Because Dr. Stratigakis's affirmation lacked any probative value, Dr. Fleischer's affirmation is the only competent evidence before us of plaintiff's injuries that is based on an actual physical examination.
The trilogy of cases decided in Pommells v Perez (4 NY3d 566 [2005]) governs this area of the law. An examination of those cases clearly shows that Dr. Fleischer's affidavit was sufficient to create an issue of fact as to causation.
In the second of the three Pommells cases, Brown v Dunlop, MRIs taken of the plaintiff's lumbar spine revealed disc herniations. The plaintiff's treating doctor diagnosed the plaintiff with a permanent spinal injury sustained as a direct result of a motor vehicle accident. However, in support of a motion for summary judgment, the defendants submitted the affirmation of a radiologist which stated that the spinal abnormalities were "chronic and degenerative in origin" (4 NY3d at 576). In opposition to the motion, the plaintiff provided the affirmation of his treating physician, which opined,
"with a reasonable degree of medical certainty, that plaintiff's inability to move his spine (lower back and neck) to the full range of what is normal [constituted a]...definite severe and permanent injury' that was causally related to the accident" (id.).

There is no indication in the opinion that the affirmation directly addressed the defendants' radiologist's opinion that the injuries were unrelated to the accident.
The Court of Appeals held that the defendants met their initial burden on the motion. However, the Court denied the motion, finding that plaintiff raised a triable issue of fact when his doctor identified measurements of loss of range of motion which led him to believe "that plaintiff suffered severe and permanent injuries as a result of the accident" (4 NY3d at 577). Addressing the defendants' position that the plaintiff's injury was the result of a pre-existing condition, the Court stated that
"there is only [the defendant's radiologist's] conclusory notation, itself insufficient to establish that plaintiff's pain might be chronic and unrelated to the accident. As opposed to the undisputed proof of plaintiff's contemporaneous, causally relevant kidney condition in Pommells, here even two of defendants' other doctors acknowledged that plaintiff's (relatively minor) injuries were caused by the car accident. On this record, plaintiff was not obliged to do more to overcome defendants' summary judgment motions" (4 NY3d at 577-578).

In this case, defendants' expert's opinion that plaintiff's knee and spinal injuries were degenerative in nature is no less "conclusory" than the Brown radiologist's statement that the spinal abnormalities in that case were "chronic and degenerative in origin." In addition, the plaintiff's doctor's opinion as to causation in Brown, like Dr. Fleischer's opinion here, did not appear to specifically rebut the radiologist's opinion as to causation.
The case before this Court contrasts with the first case in the Pommells trilogy, Pommells v Perez. In Perez, the plaintiff's doctor attributed plaintiff's symptoms to the motor vehicle accident and an unrelated kidney problem which manifested itself after the accident and which led to the removal of the kidney. The Court of Appeals held that the plaintiff failed to raise an issue of fact because his doctor acknowledged the kidney problem as a potential cause of the symptoms. In this case, there is no such statement by Dr. Fleischer that plaintiff's symptoms may have been caused by disc degeneration, that they were chronic or that they were caused by anything other than the accident.
Finally, in Carrasco v Mendez, the third case in the Pommells trilogy, the defendant submitted, among other things, reports from the doctor who treated the plaintiff immediately after the accident. These noted the existence of a degenerative condition that pre-existed the accident and may have caused his symptoms. The plaintiff opposed the motion with the affidavit of a doctor who did not begin to treat the plaintiff until one year after the accident, and which failed to address the previous treating physician's observation of a preexisting condition. The Court found that summary judgment was properly granted to the defendant because he presented "persuasive evidence that plaintiff's alleged pain and injuries were related to a preexisting condition" (4 NY2d at 580 [emphasis added]), and plaintiff failed to refute it. In this case, Dr. Eisenstadt's opinion, standing alone, that plaintiff had a pre-existing condition, is not "persuasive." This is especially true in the face of Dr. Fleischer's equally, if not more weighty, opinion, that the injuries were caused by the accident.
The cases cited by the dissent are on their face inapposite and are all readily distinguishable. Unlike this case, the evidence presented by the defendants in those cases of a pre-existing injury was "persuasive" (Pommells, 4 NY2d at 580). Also unlike here, the plaintiffs' experts in those cases showed no reliable basis for opining that it was just as likely that the motor vehicle accident caused the injuries.
Reviewing the dissent's cases individually, this is clear. In Valentin v Pomilla (59 AD3d 184 [2009]), the defendants' motion for summary judgment relied on an affirmation from a radiologist stating that the plaintiff's back and knee injuries pre-existed the accident. The defendants also introduced evidence that the plaintiff's own doctors reported after their initial evaluations that his meniscal tears were degenerative in nature. In opposition, the plaintiff submitted an affidavit by his chiropractor stating that the plaintiff had limited motion in his lumbar and cervical spines which was related to the accident. This Court held that the plaintiff failed to raise an issue of fact because the chiropractor's opinion was not based on an examination of the plaintiff made contemporaneously with the accident, but rather on an examination which occurred two months thereafter, when the link between the trauma and the reported symptoms would not have been as readily discernable. Here, of course, Dr. Fleischer examined plaintiff within eight days of the accident, when the trauma was still fresh. Accordingly, his ability to link plaintiff's symptoms to the accident was far superior to the ability of the doctor in Valentin. The complaint in Shinn v Catanzaro (1 AD3d 195 [2003]), also relied on by the dissent, was similarly dismissed because the plaintiff's expert's opinion that a motor vehicle accident caused his herniated discs was based on an examination performed four and a half years after the accident occurred.
In Style v Joseph (32 AD3d 212 [2006]), it was not disputed that the plaintiff had been in two prior accidents, in which she suffered debilitating injuries to the same body parts allegedly injured in the subject accident. Three of the four experts who submitted affirmations on behalf of the plaintiff in opposition to the defendant's motion for summary judgment ignored this fact. The expert who did address it acknowledged that the plaintiff experienced neck and back pain prior to the accident but stated in conclusory fashion that the plaintiff was improving from those injuries at the time of the latest accident and that the latest accident exacerbated those injuries. This Court found this to be insufficient to raise a triable issue of fact. Here, plaintiff reports no prior medical history. To the contrary, he claims that he had no symptoms before the subject accident.
Becerril v Sol Cab Corp. (50 AD3d 261 [2008]) and Brewster v FTM Servo, Corp. (44 AD3d 351 [2007]) also involved plaintiffs who were undisputedly involved in a prior accident in which the same body parts were injured but failed to address why the prior accidents were not a possible cause of their current symptoms.
All of these cases are consistent with the notion introduced in Pommells v Perez (4 NY3d 566 [2005], supra). Again, Pommells stands for the proposition that where the defendant submits "persuasive" evidence of a pre-existing injury and the plaintiff's doctor has no reliable basis for linking the symptoms to the accident, an issue of fact cannot be created by the plaintiff's doctor's simply repeating the mantra that the injuries were caused by the accident.
The instant matter is not such a case. Defendants' sole competent evidence in favor of summary judgment was a doctor's opinion that plaintiff's injuries pre-existed the accident. Plaintiff submitted the affirmation of a treating physician, based on a physical examination performed within days of the accident, opining that the injuries were caused by the accident. There is no basis on this record to afford more weight to defendants' expert's opinion and there are no "magic words" which plaintiff's expert was required to utter to create an issue of fact. If anything, plaintiff's expert's opinion is entitled to more weight. Moreover, that opinion constituted an unmistakable rejection of defendants' expert's theory.
Finally, we hold that defendants did establish their entitlement to summary judgment dismissing plaintiff's 90/180-day claim based upon the evidence that the period between the accident and plaintiff's return to work on a part-time basis was only 79 days. Plaintiff's reduced work schedule fails to raise a triable issue of fact as to whether he sustained a 90/180-day injury (see Cartha v Quinn, 50 AD3d 530 [2008]).
All concur except Catterson and McGuire, JJ. who dissent in part in a memorandum by McGuire, J. as follows:

McGUIRE, J. (dissenting in part)
I agree with the majority that plaintiffs' claim under the 90/180-day provision of Insurance Law § 5102(d) must be dismissed. However, I would also dismiss the claims premised on injuries to plaintiff John R. Linton's spine and left knee.
Plaintiffs allege that John Linton sustained injuries to his spine, left knee and right shoulder when he was struck by a vehicle driven by defendant Muhammad Nawaz and owned by defendant Chire Taxi, Inc. In support of their motion for summary judgment dismissing the complaint, defendants submitted, among other things, the affirmation of a radiologist who reviewed MRI films of John Linton's left knee and spine taken between five and eight weeks after the accident. The radiologist affirmed that, with respect to the left knee, "[t]here is a grade II degenerative signal change seen in the posterior horn of the medial meniscus." She concluded that "[t]he grade II mucoid degenerative signal change is as the name implies, an intrasubstance, degenerative process without traumatic basis or causal relationship to the accident." With respect to the spine, the radiologist affirmed that "[d]egeneration of all the cervical intervertebral discs is noted." She found that the films:
"reveal[] evidence of longstanding, pre-existing, degenerative disc disease. There is osteophyte formation, discogenic ridging, endplate signal change and uncinate joint hypertrophy seen. These bony changes are greater than six months in development and due to the extent are more likely years in origin. These changes could not have occurred in the time interval between examination and injury and clearly predate the accident. There is disc degeneration throughout the cervical spine. This drying out and loss of disc substance is also longstanding, chronic, and pre-existing. Disc bulging is seen. Bulging is not traumatic but degeneratively induced, related to ligamentous laxity. No ossesous, ligamentous, or intervertebral disc abnormalities are seen attributable to the ... accident."
Supreme Court denied defendants' motion in its entirety, and this appeal ensued.
The disposition of this appeal turns on the summary judgment standards regarding a claim of serious injury where a defendant has submitted on its motion for summary judgment evidence that the plaintiff suffered from a preexisting condition. We have repeatedly held that where the defendant submits evidence in admissible form indicating that the plaintiff suffered from a preexisting degenerative condition in the area of the body that the plaintiff claims was injured as a result of the motor vehicle accident giving rise to the action, the defendant has made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint on the ground that the accident was not a proximate cause of the plaintiff's injuries. To raise a triable issue of fact and withstand summary judgment in opposition to such a prima facie showing, it is incumbent upon the plaintiff to submit evidence specifically addressing the defendant's evidence that the plaintiff suffered from a preexisting degenerative condition.
Valentin v Pomilla (59 AD3d 184 [2009]), recently decided by this Court, highlights these principles. In Valentin, we stated that:
"Defendants established prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) by submitting a radiologist's affirmed report that plaintiff's MRI films revealed evidence of degenerative disc disease predating the accident and no evidence of post-traumatic injury to the disc structures (see Perez v Hilarion, 36 AD3d 536, 537 [2007]). In opposition, plaintiff failed to raise an inference that his injury was caused by the accident (see Diaz v Anasco, 38 AD3d 295 [2007]) by not refuting defendants' evidence of a preexisting degenerative condition of the spine. Missing from all of plaintiff's submissions is any mention of the congenital defect at the S1 vertebral level and degenerative condition of plaintiff's lumbar spine reported by Dr. Eisenstadt or the preexisting degenerative changes in his right knee and degenerative meniscal tears in both posterior horns of both menisci reported by plaintiff's own experts, Drs. Lubin and Rose, in their initial evaluation of plaintiff's right knee shortly after the accident (see Pommells v Perez, 4 NY3d 566, 580 [2005]).
"With regard to his claim that the evidence submitted by him was sufficient to raise an inference that he suffered injuries that were caused by the accident, plaintiff asserts that his MRIs of the cervical and lumbar spine revealed disc herniation at L4-5 and L5-S1 and disc bulging at C4-C5, and that EMGs revealed L5-S1 radiculopathy. However, [a] herniated disc, by itself, is insufficient to constitute a "serious injury"; rather, to constitute such an injury, a herniated disc must be accompanied by objective evidence of the extent of alleged physical limitations resulting from the herniated disc' (Onishi v N & B Taxi, Inc., 51 AD3d 594, 595 [2008]). Plaintiff also contends that the MRI of his right knee revealed a medial meniscal tear, for which he ultimately underwent arthroscopy. Again, he makes no mention of the degenerative nature of that condition.
"In addition, plaintiff argues that his chiropractor Dr. Zeren's affidavit set forth objective quantified evidence of the degree of limitation and permanency of the injuries sustained by him. Notably, he contends Dr. Zeren found positive straight-leg testing during plaintiff's May 30, 2007 examination (see Brown v Achy, 9 AD3d 30, 31-32 [2004]), and that plaintiff was also noted to have decreased limitation of motion of the lumbar and cervical spine (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]).
"However, plaintiff's reliance on Dr. Zeren's affidavit is misplaced. Although he presumably saw plaintiff just days after the accident, Dr. Zeren failed to provide documentation regarding that visit or any contemporaneous evidence of limitations. In this regard, there were no contemporaneous limitations shown regarding the accident - at most, some limitations were purportedly measured by Dr. Hausknecht two months after the accident (see Thompson v Abbasi, 15 AD3d 95, 98 [2005])... Even if Dr. Hausknecht's report was considered contemporaneous, the limitations concerned only lateral flexion of the cervical spine and forward flexion of the lumbar spine, and were minor. In addition, Dr. Hausknecht failed to address whether plaintiff's condition was causally related to the motor vehicle accident at issue.
"The most significant flaw in plaintiff's arguments is his failure to address causation. To recover damages for noneconomic loss related to personal injury allegedly sustained in a motor vehicle accident, the plaintiff is required to present nonconclusory expert evidence sufficient to support a finding not only that the alleged injury is "serious" within the meaning of Insurance Law § 5102(d), but also that the injury was causally related to the accident. Absent an explanation of the basis for concluding that the injury was caused by the accident, as opposed to other possibilities evidenced in the record, an expert's conclusion that plaintiff's condition is causally related to the subject accident is mere speculation, insufficient to support a finding that such a causal link exists' (Diaz v Anasco, 38 AD3d at 295-296).
"Here, not only did plaintiff's experts fail to refute defendants' evidence of a preexisting congenital and degenerative condition of the spine, his own doctors reported a degenerative condition of the right knee. Dr. Rose's failure even to mention, let alone explain, why he ruled out degenerative changes as the cause of plaintiff's knee and spinal injuries rendered his opinion that they were caused by the accident speculative (see Gorden v Tibulcio, 50 AD3d 460, 464 [2008]). Consequently, there is no objective basis for concluding that the present physical limitations and continuing pain are attributable to the subject accident rather than to the degenerative condition (see Jimenez v Rojas, 26 AD3d 256, 257 [2006]). In Pommells v Perez (4 NY3d 566 [2005], supra), where, as here, there was persuasive evidence that the plaintiff's alleged pain and injuries were related to preexisting degenerative conditions, the Court held that plaintiff had the burden of coming forward with evidence addressing the defendants' claimed lack of causation. In the absence of such evidence, the defendants are entitled to summary dismissal of the complaint" (59 AD3d at 184-186 [emphasis added]).
Valentin is hardly an aberration from our "serious injury" jurisprudence. In Becerril v Sol Cab Corp. (50 AD3d 261, 261-262 [2008]), another panel of this Court determined that:
"Defendants established a prima facie entitlement to summary judgment by submitting ... the affirmed report of a radiologist who opined that plaintiff's MRI films revealed degenerative disc disease, and no evidence of post-traumatic injury to the disc structures (see Montgomery v Pena, 19 AD3d 288, 289 [2005]). Defendants also submitted plaintiff's deposition testimony, where he stated that he missed no work as a result of his accident.
"In opposition, plaintiffs failed to raise a triable issue of fact as to whether he sustained a serious injury. Although plaintiff submitted an affirmed report from his treating chiropractor detailing the objective testing employed during plaintiff's examination and revealing limited ranges of motion, no adequate explanation was provided that plaintiff's injuries were caused by the subject accident (see Style v Joseph, 32 AD3d 212, 215 [2006]). Notably, plaintiff conceded at his deposition that he sustained injuries to his neck and back in a prior accident, and an MRI conducted shortly after the subject accident showed degenerative disc disease. In these circumstances, it was incumbent upon plaintiff to present proof addressing the asserted lack of causation (see Brewster v FTM Servo, Corp., 44 AD3d 351, 352 [2007])."
This Court's decision in Brewster v FTM Servo, Corp. (44 AD3d 351 [2007]), cited by the Court in Becerril, is also instructive as to the law in this Department regarding summary judgment standards in no-fault cases. In Brewster, we noted that:
"Brewster conceded at his deposition that he had sustained injuries to his neck, back and shoulder in a prior automobile accident. Once a defendant has presented evidence of a preexisting injury, even in the form of an admission made at a deposition (see Alexander v Garcia, 40 AD3d 274 [2007]), it is incumbent upon the plaintiff to present proof to meet the defendant's asserted lack of causation (see Baez v Rahamatali, 6 NY3d 868 [2006]; Pommells v Perez, 4 NY3d 566, 574 [2005]). Brewster's submissions totally ignored the effect of his previous mishap on the purported symptoms caused by the latest accident. The fact that [defendant's] expert discerned some minor loss of motion in Brewster's lumbar spine is irrelevant where the objective tests performed by this physician were negative, and Brewster had testified to a pre-existing injury in that part of his body (see Style v Joseph, 32 AD3d 212, 214 [2006]; Montgomery v Pena, 19 AD3d 288, 289-290 [2005])" (44 AD3d at 352 [emphasis added]).
Another decision out of this Court that demonstrates the principles discussed above is Shinn v Catanzaro (1 AD3d 195 [2003]). In Shinn, the plaintiffs were injured when the car they were traveling in was struck by a vehicle driven by the defendant. The plaintiffs commenced an action against the defendant and the defendant sought summary judgment dismissing the complaint. With respect to the claims of one of the plaintiffs, James Shinn, the defendant submitted the affirmation of a radiologist who reviewed an MRI film of James Shinn's spine that was taken two months after the accident. The radiologist "noted a dessication or drying out' of disc material at the L4-5 level, and a disc herniation at the L3-4 level," and "concluded that the disc abnormalities were not traumatically induced, but rather were the result of preexisting degenerative conditions" (id. at 196).
In reversing an order of Supreme Court denying the defendants' motion to dismiss the complaint in its entirety, we determined with respect to the claims of James Shinn that the radiologist's "report reveals that [his] disc abnormalities were the result of preexisting degenerative conditions, and thus not causally related to the February 1997 accident. This evidence, submitted in proper form, was sufficient to establish prima facie entitlement to dismissal for failure to meet the serious injury threshold" (id. at 197). While we found that James Shinn's expert's affirmation demonstrated that he suffered from disc herniations in his cervical spine and had a 40% restriction of range of motion of the cervical spine, we concluded that:
"[w]hat plaintiffs' submissions fail to do ... is demonstrate that the cervical disc herniations or any other serious injury suffered by [James Shinn] are causally related to the ... accident. The record shows that after the accident, [James Shinn] did not miss any work except a few hours for medical appointments. [He] received chiropractic treatment for approximately nine months after the accident, and, according to the unsworn chiropractor's reports from 1997, [he] had some limitations of range of motion in the cervical and lumbar spine. However, [James Shinn] was [not] diagnosed with cervical disc herniations [at that time]. Moreover, despite [the] 1997 MRI showing James Shinn as having herniated and bulging discs in his lumbar spine, plaintiffs failed to address defendant's medical evidence attributing those injuries to preexisting degenerative conditions (see Lorthe v Adeyeye, 306 AD2d 252 [2d Dept 2003])" (id. at 198 [emphasis added]). Because defendant's evidence established that John Linton had preexisting degenerative injuries to his left knee and spine, defendants made a prima facie showing of entitlement to summary judgment with respect to those claims (see Valentin, 59 AD3d at 184; Becerril, 50 AD3d at 261-262; Brewster, 44 AD3d at 352; Shinn, 1 AD3d at 198). In opposition, plaintiffs failed to raise a triable issue of fact with respect to their claims premised on injuries to John Linton's left knee and spine. Their expert failed to address how John Linton's "current medical problems, in light of h[is] past medical history, are causally related to the subject accident" (Style v Joseph, 32 AD3d 212, 214 [2006]). Indeed, plaintiffs' neurologist did not discuss the degenerative conditions at all (see Valentin, 59 AD3d at 184; Becerril, 50 AD3d at 261-262; Brewster, 44 AD3d at 352; Shinn, 1 AD3d at 198; see also Charley v Goss, 54 AD3d 569, 571-572 [1st Dept 2008] [plaintiff's expert's "report addresses plaintiff's subjective complaints of recurring discomfort, tenderness and pain, but fails to list any objective orthopedic tests performed, and neglects to adequately, or in some cases, even peripherally explain plaintiff's cessation of treatment, or the preexisting degenerative changes to plaintiff's cervical and lumbar spine and right shoulder delineated in [defendant's expert's report"], affd 12 NY3d 750 [2009]).
According to the majority, plaintiffs raised a triable issue of fact with respect to causation even though they did not present expert evidence specifically addressing defendants' evidence that John Linton had preexisting degenerative conditions in both his spine and knee. As the majority sees it, plaintiffs' expert's conclusory opinion that John Linton's injuries were caused by the accident is sufficient to withstand summary judgment despite the expert's failure to address the evidence of preexisting degenerative conditions. As is evident from the above-quoted language from Valentin, Becerril, Brewster and Shinn, the majority's conclusion is inconsistent with those decisions. In an effort to avoid that consistent case law, the majority attempts to distinguish Valentin, Becerril, Brewster and Shinn. Those attempts are not successful.
With respect to Valentin, the majority writes that the
"Court held that the plaintiff failed to raise an issue of fact because the chiropractor's opinion was not based on an examination of the plaintiff made contemporaneously with the accident, but rather on an examination which occurred two months thereafter, when the link between the trauma and the reported symptoms would not have been as readily discernable. Here, of course, [plaintiff's expert] examined plaintiff within eight days of the accident, when the trauma was still fresh. Accordingly, his ability to link plaintiff's symptoms to the accident was far superior to the ability of the doctor in Valentin."
As is clear from the above-quoted portion of our decision in Valentin, the majority's discussion of that case is incomplete and misleading. As noted, in Valentin, we determined that:
"Defendants established prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) by submitting a radiologist's affirmed report that plaintiff's MRI films revealed evidence of degenerative disc disease predating the accident and no evidence of post-traumatic injury to the disc structures. In opposition, plaintiff failed to raise an inference that his injury was caused by the accident by not refuting defendants' evidence of a preexisting degenerative condition of the spine. Missing from all of plaintiff's submissions is any mention of the congenital defect at the S1 vertebral level and degenerative condition of plaintiff's lumbar spine reported by Dr. Eisenstadt or the preexisting degenerative changes in his right knee and degenerative meniscal tears in both posterior horns of both menisci reported by plaintiff's own experts, Drs. Lubin and Rose, in their initial evaluation of plaintiff's right knee shortly after the accident" (id. at 184-185 [internal citations omitted; emphasis added]).
With respect to the opinion of the plaintiff's chiropractor, we rejected the chiropractor's opinion that the plaintiff sustained a serious injury as a result of the subject accident for a number of reasons. One of the reasons we rejected it was because the plaintiff failed to establish that the chiropractor's findings were made contemporaneously with the accident (id. at 185) — the reason noted by the majority. Another reason we rejected it, indeed, the principal reason,[FN1] was that "not only did plaintiff's experts fail to refute defendants' evidence of a preexisting congenital and degenerative condition of the spine, his own doctors reported a degenerative condition of the right knee. [Plaintiff's doctor's] failure even to mention, let alone explain, why he ruled out degenerative changes as the cause of plaintiff's knee and spinal injuries rendered his opinion that they were caused by the accident speculative" (id. at 186).
What was true in Valentin — that the defendants submitted the report of a radiologist who averred that the plaintiff's MRI films revealed evidence of a preexisting degenerative condition and that the plaintiff failed to refute that evidence — is true here. Nevertheless, the majority does not mention this portion of our holding.
The majority dismisses both Becerril and Brewster on the ground that those cases "involved plaintiffs who were undisputably involved in ... prior accident[s] in which the same body parts were injured but failed to address why the prior accidents were not a possible cause of their current symptoms." That the plaintiffs in Becerril and Brewster suffered preexisting conditions as a result of other accidents and John Linton suffered preexisting degenerative conditions is a distinction without a difference. Regardless of the cause of the preexisting condition, the legal principle remains the same: once a defendant has presented evidence of a preexisting condition the plaintiff must present evidence specifically addressing that condition (e.g. Becerril, 50 AD3d at 261-262).
Like its discussion of Valentin, the majority's discussion of Shinn is both incomplete and misleading. The majority writes that the complaint in Shinn was "dismissed because the plaintiff's expert's opinion that a motor vehicle accident caused his herniated discs was based on an examination performed four and a half years after the accident occurred." One of the grounds on which we rejected the plaintiff's expert's opinion in that case was that the expert did not examine the plaintiff until four and a half years after the accident. But the majority ignores everything in our decision in Shinn that precedes the discussion regarding the issue of gap in treatment. Thus, the majority fails to mention the relevant portions of that decision as it relates to this appeal, namely, that the radiologist's "report reveal[ed] that [the plaintiff's] disc abnormalities were the result of preexisting degenerative conditions, and thus not causally related to the February 1997 accident. This evidence, submitted in proper form, was sufficient to establish prima facie entitlement to dismissal for failure to meet the serious injury threshold" (1 AD3d at 197). The majority also fails to mention that, while the plaintiff's expert's affirmation demonstrated that he suffered from disc herniations in his cervical spine and had a 40% restriction of range of motion of the cervical spine, we concluded that:
"[w]hat plaintiffs' submissions fail to do ... is demonstrate that the cervical disc herniations or any other serious injury suffered by [James Shinn] are causally related to the ... accident. The record shows that after the accident, [James Shinn] did not miss any work except a few hours for medical appointments. [He] received chiropractic treatment for approximately nine months after the accident, and, according to the unsworn chiropractor's reports from 1997, [he] had some limitations of range of motion in the cervical and lumbar spine. However, [James Shinn] was [not] diagnosed with cervical disc herniations [at that time]. Moreover, despite [the] 1997 MRI showing James Shinn as having herniated and bulging discs in his lumbar spine, plaintiffs failed to address defendant's medical evidence attributing those injuries to preexisting degenerative conditions" (id. at 198).
In short, the majority's claim that Valentin, Becerril, Brewster and Shinn "are on their face inapposite and are all readily distinguishable," cannot withstand scrutiny.
The majority also writes that "[t]he trilogy of cases decided in Pommells v Perez (4 NY3d 566 [2005]) governs this area of the law." This statement is only partially correct. Pommells, along with the case law of this Court, e.g., Valentin, Becerril, Brewster and Shinn, "governs this area of the law." In any event, both Pommells and our case law dictate that John Linton's claims regarding injuries to his left knee and spine must be dismissed.
In Pommells, the Court of Appeals addressed three cases in which the plaintiffs claimed to have suffered soft-tissue injuries caused by car accidents. Noting the objectives of the No-Fault Law — to promote prompt resolution of injury claims, limit costs to consumers and alleviate unnecessary burdens on the courts — the Court concluded "that, even where there is objective medical proof [of a serious injury], when additional contributory factors interrupt the chain of causation between the accident and claimed injury - such as a gap in treatment, an intervening medical problem or a preexisting condition - summary dismissal of the complaint may be appropriate" (id. at 572). The Court then applied this principle to each of the three cases before it.
In the first case, Pommells v Perez, the Court determined that the defendants' motion for summary judgment dismissing the complaint was properly granted because (1) the plaintiff failed to offer an explanation for ceasing treatment shortly after the accident and (2) the "plaintiff failed to address the effect of [a] kidney disorder [he suffered after the accident] on his claimed accident injuries" (id. at 574). With respect to the second point, the Court held that because "[p]laintiff's submission left wholly unanswered the question whether the claimed symptoms diagnosed by [plaintiff's physician] were caused by the accident" (id. at 575, citing, among other cases, Shinn), the plaintiff failed to raise a triable issue of fact regarding whether his injuries were proximately caused by the accident.
The majority concludes that Pommells is distinguishable from the case before us because in Pommells the plaintiff's physician acknowledged that his kidney aliment was a potential cause of his injuries, and here John Linton's physician did not acknowledge that he suffered from preexisting degenerative conditions. This "distinction" is unpersuasive. By the majority's reasoning, no defendant in an action such as this one can obtain summary judgment on the ground that a plaintiff had a preexisting condition unless the plaintiff (or his or her physician) concedes that the plaintiff has a preexisting condition. Nothing in the Court's decision in Pommells supports that notion. Rather, the Court stated that Pommells' opposition to the motion was insufficient because he "failed to address the effect of [a] kidney disorder [he suffered after the accident] on his claimed accident injuries" (id. at 574). Moreover, our case law both prior to and following Pommells has made plain that a defendant satisfies its initial burden on a motion for summary judgment dismissing a complaint in a serious injury case where the defendant submits evidence in admissible form that the plaintiff suffered from a preexisting condition, and, if that showing has been made, the burden shifts to the plaintiff to submit evidence specifically addressing the evidence of a preexisting condition (see Valentin, 59 AD3d at 184; Becerril, 50 AD3d at 261-262; Brewster, 44 AD3d at 352; Shinn, 1 AD3d at 197).
In the second case decided by the Court in Pommells, Brown v Dunlap, the Court reversed an order of the Appellate Division affirming an order of Supreme Court granting the defendants' motion for summary judgment dismissing the complaint. The Court of Appeals rejected the contentions that the plaintiff failed to provide an adequate explanation for a gap in treatment and that plaintiff failed to address evidence that he suffered from a chronic disc condition. Concerning the second point, the Court essentially found that the defendants failed to make a prima facie showing of entitlement to summary judgment on the ground that the plaintiff's injuries were caused by a preexisting degenerative condition, and, therefore, the burden never shifted to the plaintiff to submit evidence specifically addressing that condition. Thus, the Court wrote:
"as to an alleged preexisting condition, there is only [the defendant's examining physician's] conclusory notation, itself insufficient to establish that plaintiff's pain might be chronic and unrelated to the accident. As opposed to the undisputed proof of plaintiff's contemporaneous, causally relevant kidney condition in Pommells, here even two of defendants' other doctors acknowledged that plaintiff's (relatively minor) injuries were caused by the car accident. On this record, plaintiff was not obliged to do more to overcome defendants' summary judgment motions" (4 NY3d at 577-578).
The majority asserts that defendants' radiologist's "opinion[s] that plaintiff's knee and spinal injuries were degenerative in nature are no less conclusory' than the Brown radiologist's statement that the spinal abnormalities in that case were chronic and degenerative in origin.'" Once again, the majority is wrong.
In Brown, the defendants' radiological expert reviewed MRI films of the plaintiff's spine and "noted - without more - that the disc desiccation and minimal diffuse disc bulge' were chronic and degenerative in origin'" (id. at 576 [internal brackets omitted]). Here, however, defendants' radiologist provided a far more detailed opinion regarding the preexisting degenerative conditions in John Linton's left knee and spine, demonstrating that he, like the plaintiff in Pommells, had a "contemporaneous, causally relevant" condition (id. at 578). Thus, the radiologist affirmed with respect to the left knee that "[t]here is a grade II degenerative signal change seen in the posterior horn of the medial meniscus," and she concluded "[t]he grade II mucoid degenerative signal change is as the name implies, an intrasubstance, degenerative process without traumatic basis or causal relationship to the accident." With respect to the spine, the radiologist affirmed that "[d]egeneration of all the cervical intervertebral discs is noted." She found that the films:
"reveal[] evidence of longstanding, pre-existing, degenerative disc disease. There is osteophyte formation, discogenic ridging, endplate signal change and uncinate joint hypertrophy seen. These bony changes are greater than six months in development and due to the extent are more likely years in origin. These changes could not have occurred in the time interval between examination and injury and clearly predate the accident. There is disc degeneration throughout the cervical spine. This drying out and loss of disc substance is also longstanding, chronic, and pre-existing. Disc bulging is seen. Bulging is not traumatic but degeneratively induced, related to ligamentous laxity. No ossesous, ligamentous, or intervertebral disc abnormalities are seen attributable to the ... accident."
Thus, Brown is plainly distinguishable.
The third and final case addressed by the Court in Pommells was Carrasco v Mendez. In Carrasco, the Court affirmed an order of the Appellate Division affirming an order of Supreme Court granting the defendant's motion for summary judgment dismissing the complaint. The Court determined that the defendant's evidence was sufficient to sustain his initial burden on the motion and shift the burden to the plaintiff to raise a triable issue of fact with respect to causation. The defendant's evidence included a report of a physician who treated the plaintiff that indicated that the plaintiff suffered from a preexisting degenerative condition in his spine (which he claimed was injured as a result of the motor vehicle accident giving rise to the action), and a report by an orthopedic surgeon who reviewed MRI films taken of the plaintiff's spine and opined that the films demonstrated that the plaintiff suffered from a preexisting degenerative condition in his spine (id. at 578). The Court also determined that the plaintiff's evidence, which included the affidavit of a physician who treated the plaintiff for the injuries he allegedly sustained in the accident, was insufficient to raise a triable issue of fact. Although the plaintiff's physician opined that the plaintiff's spinal injuries were caused by the motor vehicle accident, the physician failed to "refute defendant's evidence of a preexisting degenerative condition" (id. at 580).
The majority asserts that Carrasco is distinguishable from the case before us because the defendant in Carrasco submitted " persuasive evidence that plaintiff's alleged pain and injuries were related to a preexisting condition'" (quoting Pommells at 580; emphasis in majority's writing), and defendants' evidence — the report of the radiologist — is "not persuasive.'" What the majority fails to acknowledge is that the evidence on which defendants rely to establish that John Linton suffered from preexisting degenerative conditions in his left knee and spine is the same evidence this Court has found "persuasive" in several other cases, to wit, the affirmed report of a radiologist opining that the plaintiff's MRI films revealed degenerative conditions (see e.g. Valentin, 59 AD3d at 184; Becerril, 50 AD3d at 261-262; Shinn, 1 AD3d at 197; see also Brewster, 44 AD3d at 352). Thus, Carrasco supports defendants' claim that they are entitled to partial summary judgment.
In sum, where the defendant submits evidence in admissible form indicating that the plaintiff suffered from a preexisting degenerative condition in the area of the body that the plaintiff claims was injured as a result of the motor vehicle accident, the defendant has made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint on the ground that the accident was not a proximate cause of the plaintiff's injuries. In opposition to such a showing, the plaintiff must submit evidence specifically addressing the defendant's evidence that the plaintiff suffered from a preexisting degenerative condition. Because defendants met their initial burden and plaintiffs failed to address defendants' evidence that John Linton suffered from preexisting degenerative conditions, I would grant those portions of defendants' motion seeking summary judgment dismissing plaintiffs' claims premised on injuries to John Linton's spine and left knee (as well as plaintiffs' claim under the 90/180-day provision of Insurance Law § 5102[d], which the majority dismisses), and otherwise affirm [FN2].

Footnote 1: Defendants' motion was initially granted upon plaintiff's default. Plaintiff moved to vacate the default and restore the action pursuant to CPLR 5015(a)(1) and CPLR 2005 based on the existence of a reasonable excuse and a meritorious claim. Defendants did not contest the motion other than to reiterate their position that plaintiff did not sustain a serious injury and so they were entitled to summary judgment.

Footnote 1:"The most significant flaw in plaintiff's argument is his failure to address causation" (id. at 186).

Footnote 2:Defendants failed to make a prima facie showing of entitlement to judgment as a matter of law dismissing the claims premised on injuries to John Linton's right shoulder.

Paula v. Natala


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Timothy M. Sullivan of counsel), for appellants.
Harmon, Linder, & Rogowsky, New York, N.Y. (Mitchell
Dranow of counsel), for respondent.
Richard T. Lau, Jericho, N.Y. (Gene W. Wiggins of counsel),
for defendant Javier Natala.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Paula Ernesto and Alberto Tavarez appeal from an order of the Supreme Court, Kings County (Lewis, J.), dated September 12, 2008, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
Although the defendants established their prima facie entitlement to judgment as a matter of law (see Luckey v Bauch, 17 AD3d 411; Sims v Megaris, 15 AD3d 468; Check v Gacevk, 14 AD3d 586), the plaintiff submitted sufficient evidence in opposition to raise a triable issue of fact as to whether she sustained a serious injury. The plaintiff's objective medical evidence included affirmations from the physician who treated her in the months following the accident, as well as from the physician who examined her in response to the motion for summary judgment. The physicians, inter alia, quantified their findings of reduced ranges of motion in the plaintiff's cervical spine and lumbar spine (compare Caracci v Miller, 34 AD3d 515). Moreover, the plaintiff adequately explained the two-year gap from the time her medical treatments had stopped to the time she was re-examined for purposes of the motion for summary judgment (see Gibson v Tordoya, 44 AD3d 1000; Black v Robinson, 305 AD2d 438, 439-440).
Robinson v. Yeager


James J. Killerlane, P.C. (David Samel, New York, N.Y., of
counsel), for appellant.
Nesci-Keane PLLC, Hawthorne, N.Y. (Thomas J. Keane of
counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Smith, J.), dated April 14, 2008, which granted the defendant's 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 reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
The defendant failed to meet his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of his motion, the defendant relied upon, inter alia, the affirmed medical reports of Dr. Ralph Purcell and Dr. Rene Elkin. In those reports, Dr. Elkin noted significant limitation in the plaintiff's cervical spine, and Dr. Purcell noted significant limitation in the plaintiff's right shoulder (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). Since the defendant failed to meet his prima facie burden, it is unnecessary to decide whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Giacomaro v Wilson, 58 AD3d 802; Coscia v 938 Trading Corp., 283 AD2d 538).
2-10 Jerusalem Avenue Realty, LLC v. Utica First Insurance Company



Farber Brocks & Zane, L.L.P., Mineola (Tracy L. Frankel of
counsel), for appellant.
Law Office of James J. Toomey, New York (Eric P. Tosca of
counsel), for respondent.
Order, Supreme Court, New York County (Walter B. Tolub, J.), entered August 8, 2008, which, in a declaratory judgment action involving defendant insurer's obligation to defend and indemnify plaintiff in an underlying action for personal injuries sustained on commercial premises owned by plaintiff and leased to defendant's named insured, insofar as it denied the insurer's motion for summary judgment declaring that it is not obligated to defend and indemnify the owner in the underlying action, and granted the owner's motion for summary judgment declaring that it is an additional insured on the policy entitled to a defense and indemnification in the underlying action, unanimously reversed, on the law, without costs, the insurer's motion for summary judgment granted, the owner's motion for summary judgment denied, and it is declared that the insurer is not obligated to defend and indemnify the owner in the underlying action. Appeal from order, same court and Justice, entered April 2, 2008, which, insofar as appealed from, denied the insurer's motion for summary judgment, unanimously dismissed, without costs, as superseded by the appeal from the August 8, 2008 order.
The owner's tenant met with the insurer's agent on February 24, 2006, during the workday, and signed a writing requesting retroactive cancellation of the subject policy as of 12:01 a.m. on February 24, 2006. The accident involved in the underlying action also occurred on February 24, certainly after 12:01 a.m., although the exact time of day is not clear. There is no indication, or claim, that either the tenant or the insurer's agent was aware of the accident when they met and agreed to cancel the policy effective some hours earlier the same day. It does not avail the owner to argue that since the policy permits cancellation only as of a "future date" specified in a written notice, and since the written notice here did not specify a date in the future, the cancellation could not have been effective, under the "midnight rule" explained in Savino v Merchants Mut. Ins. Co. (44 NY2d 625, 629-630 [1978]) until at least the day after the accident. Any policy limitation on retroactive cancellation would be for the sole benefit of the insurer — protecting it against an insured who waits until the end of the policy period and, when no accidents have occurred, sends a retroactive cancellation to avoid paying for the policy — and thus could be waived by the insurer (cf. Matter of Country-Wide Ins. Co. v Wagoner, 57 AD2d 498 [1977] [policy requirement that cancellation request by insured be in writing is for benefit of insurer and may be waived by insurer], revd on other grounds, 45 NY2d 581 [1978]). We therefore find that the policy was cancelled effective 12:01 a.m. on February 24, as the tenant requested (cf. Savino, 44 NY2d at 630 [parties may particularize as to the time of day when a cancellation is to be effective]), and was not in effect when the accident involved in the underlying action occurred some time later that day.
Sport Rock International, Inc. v . American Casualty Company of Reading, PA,

Plaintiffs appeal from an order of Supreme Court, New York County (Debra A. James, J.), entered August 27, 2007, which granted their motion for summary judgment to the extent of declaring that defendant American is obligated to defend plaintiff Sport Rock in the Anaya action, and otherwise denied the motion.

Callan, Koster, Brady & Brennan, LLP, New York
(Michael P. Kandler of
counsel), for appellants.
Bonner Kiernan Trebach & Crociata, LLP, New York
(Alexander H. Gillespie of
counsel), for respondent.

FRIEDMAN, J.
The main question presented on this appeal is whether the costs of defending an insured in an underlying personal injury action should be allocated between two primary liability insurers or, pursuant to the policies' respective "other insurance" clauses, imposed on only one of the two insurers on a primary basis. Consistent with longstanding precedent, we hold that the carrier whose coverage is rendered excess by reason of the competing "other insurance" clauses will not become obligated to defend the insured until the other carrier's coverage has been exhausted. This result is not affected by the fact that certain allegations against the insured in the underlying action, while within the scope of the excess carrier's coverage, were outside the scope of the other carrier's duty to indemnify the insured.
This declaratory judgment action arises from an underlying personal injury action captioned Joseph Anaya v Town Sports International, Inc., et al. (Supreme Court, New York County, Index No. 101027/2003) (the Anaya action). Joseph Anaya was severely injured on January 14, 2003, when he fell while using an artificial rock-climbing wall at a fitness club. The indoor wall-climbing system had been sold to the club by Sport Rock International, Inc. (Sport Rock), a plaintiff in this action. The wall-climbing equipment that the club purchased from Sport Rock included a safety harness manufactured by Petzl America, Inc. (Petzl). It has been established in the Anaya action that "[t]he accident occurred because an employee of [the club] tied the safety line [Anaya] was using to a non-weight-bearing gear loop on the [Petzl] harness," rather than to the harness's "anchor point" (Anaya v Town Sports Intl., Inc., 44 AD3d 485, 485 [2007]). The club having settled with Anaya (see id. at 486 n*), the Anaya action proceeds against Sport Rock and Petzl on two theories, namely, that Petzl's design for the harness was defective and that Petzl failed to include warning labels on the harness necessary to render it safe (id. at 486-488).
At the time of Joseph Anaya's accident, Sport Rock was covered as a named insured under a commercial general liability (CGL) policy issued by Evanston Insurance Company (Evanston), Sport Rock's co-plaintiff in this action. The Evanston policy provides that the insurer "will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury' or property damage' to which this insurance applies," and further provides that the insurer "will have the right and duty to defend the insured against any suit' seeking those damages." The insurance provided by the Evanston policy applies to, inter alia, "bodily injury" that "occurs during the policy period."
In addition, Sport Rock was covered at the time of the Anaya accident as an additional insured under the CGL policy issued to Petzl by American Casualty Company of Reading, Pa. (American), the defendant in this action. The American policy (like the Evanston policy) provides that the insurer "will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury' or property damage' to which this insurance applies," and further provides that the insurer "will have the right and duty to defend the insured against any suit' seeking those damages." The insurance provided by the American policy applies to, inter alia, "bodily injury" that occurs, and for which a claim against the insured is first made, during the policy period. Sport Rock is afforded additional insured coverage under the American policy pursuant to an endorsement entitled "Additional Insured - Vendors" (the vendor's endorsement), which provides in pertinent part:
"WHO IS AN INSURED (Section II) is amended to include as an insured any person or organization (referred to below as vendor) shown in the Schedule [including Sport Rock], but only with respect to bodily injury' or property damage' arising out of your [i.e., Petzl's] products' shown in the Schedule which are distributed or sold in the regular course of the vendor's business, subject to the following additional exclusions [omitted here]."[FN1]
The relevant "other insurance" clause of Sport Rock's policy from Evanston states:
"When you are added to a manufacturer's or distributor's policy as an additional insured because you are a vendor for such manufacture[r]'s or distributor's products, . . . [the] Other Insurance [clause of this policy] is amended by the addition of the following:
"The coverage afforded the insured under this Coverage Part [i.e., the policy's CGL Form] will be excess over any valid and collectible insurance available to the insured as an additional insured under a policy issued to a manufacturer or distributor for products manufactured, sold, handled or distributed."
The "other insurance" clause of Petzl's policy from American states that the policy provides primary coverage (except under specified circumstances, none of which applies here), and that, if other primary insurance is available, "we will share with all that other insurance by the method" provided elsewhere in the policy (either by equal shares or in proportion to policy limits, depending on what the other insurance permits).[FN2]
After the Anaya action was commenced, Evanston tendered Sport Rock's defense to American. American acknowledged that the policy it issued to Petzl affords Sport Rock coverage for the Anaya action as an additional insured pursuant to the policy's vendor's endorsement. Nonetheless, American ultimately refused to bear the entire cost of Sport Rock's defense. In support of this position, American pointed out that the claims and theories of liability asserted against Sport Rock in the Anaya action were not limited to the Petzl harness's allegedly defective design and lack of adequate warning labels. For example, the Anaya complaint alleged that Sport Rock had negligently installed the wall-climbing system and that features of the wall-climbing system other than the Petzl harness (such as the landing mats) were also defective. Based on its assessment of the proportion of the claims in the Anaya action that were related to the Petzl harness, American offered to cover only 10% of the cost of Sport Rock's defense.
In response to American's refusal to take over Sport Rock's defense, Sport Rock and Evanston commenced this action seeking damages for breach of contract and a declaration that American is obligated to provide primary coverage for both defense and indemnification in the Anaya action and that, pursuant to the "other insurance" clause of the Evanston policy, Evanston's coverage of Sport Rock in the Anaya action "is in the nature of excess coverage only over and above the limits" of the American policy. After joinder of issue, Sport Rock and Evanston moved for summary judgment. The motion court granted the motion only to the extent of declaring that American has an obligation to defend Sport Rock in the Anaya action, refusing to declare that Evanston's coverage is excess to American's coverage for purposes of either defense or indemnification. In particular, the motion court was persuaded by American's argument that "the Evanston policy remained primary for those claims not within the vendor's endorsement" to the American policy. On Sport Rock's and Evanston's appeal, we modify to declare that, for purposes of the Anaya action, Sport Rock's coverage from Evanston is excess to Sport Rock's primary coverage from American under the vendor's endorsement to Petzl's American policy.
Duty to Defend
The motion court recognized that Sport Rock, as an additional insured under the policy American issued to Petzl, is entitled to a complete defense from American in the Anaya action. "[T]he well-understood meaning of the term [additional insured] is an entity enjoying the same protection as the named insured" (BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d 708, 714-715 [2007] [internal quotation marks and citation omitted]). "Thus, the standard for determining whether an additional named insured is entitled to a defense is the same standard that is used to determine if a named insured is entitled to a defense" (id. at 715). An insurer's "duty to defend is broader than its duty to indemnify" and arises "whenever the allegations of the complaint suggest . . . a reasonable possibility of coverage" (Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131, 137 [2006] [internal quotation marks and citation omitted]). Further, " [i]f any of the claims against [an] insured arguably arise from covered events, the insurer is required to defend the entire action'"
(Town of Massena v Healthcare Underwriters Mut. Ins. Co., 98 NY2d 435, 443 [2002], quoting Frontier Insulation Contrs. v Merchants Mut. Ins. Co., 91 NY2d 169, 175 [1997]; see also e.g. Bravo Realty Corp. v Mt. Hawley Ins. Co., 33 AD3d 447 [2006]; Firemen's Ins. Co. of Washington, D.C. v Federal Ins. Co., 233 AD2d 193 [1996], lv denied 90 NY2d 803 [1997] ["Nor is plaintiff only required to pay the costs of defending the risks specified in its general liability policy, since an insurer's obligation to defend encompasses the entire complaint where, as here, the insurer has any potential indemnity obligations"]; 3 Couch on Insurance 3d § 40:28 ["an insurer has a duty to defend an additional insured in relation to the entire lawsuit, even though the lawsuit may involve both covered and uncovered claims"]). Accordingly, American's duty to defend Sport Rock encompasses all claims asserted against the latter in the Anaya action, both claims within the scope of American's potential indemnity obligation under the vendor's endorsement to the Petzl policy (i.e., those claims based on the Petzl harness's allegedly defective design or inadequate labeling) and claims outside the scope of that potential indemnity obligation.
The parties' dispute arises from the fact that Sport Rock's possible liability in the Anaya action is potentially covered both (1) by the primary policy issued to it (as a named insured) by Evanston and (2) by the coverage afforded to it under the vendor's endorsement to the primary policy issued to Petzl by American. Thus, the question arises whether each insurer is obligated to defend Sport Rock concurrently with the other (as American argues) or, alternatively, whether one insurer has the primary defense obligation, with the other's defense obligation arising upon exhaustion of coverage under the first policy (as Sport Rock and Evanston argue, relying on the Evanston policy's "other insurance" clause). We hold that the latter position is correct.
Where the same risk is covered by two or more policies, each of which was sold to provide the same level of coverage (as is the case here), priority of coverage (or, alternatively, allocation of coverage) among the policies is determined by comparison of their respective "other insurance" clauses (see Great N. Ins. Co. v Mount Vernon Fire Ins. Co., 92 NY2d 682, 686-687 [1999] [hereinafter, Great Northern], citing State Farm Fire & Cas. Co. v LiMauro, 65 NY2d 369 [1985]; see also Jefferson Ins. Co. of N.Y. v Travelers Indem. Co., 92 NY2d 363, 372 [1998]). An "other insurance" clause "limit[s] an insurer's liability where other insurance may cover the same loss" (15 Couch on Insurance 3d § 219:1). This may be accomplished by providing that the insurance provided by the policy is excess to the insurance provided by other policies, in which case the "other insurance" clause is known as an excess clause (15 Couch on Insurance 3d § 219:33; 23 Holmes' Appleman on Insurance 2d § 140.2[B][1]). Alternatively, an "other insurance" clause may limit the insurer's liability by providing that, if other insurance is available, all insurers will be responsible for a stated portion of the loss; an "other insurance" clause of this kind is known as a pro rata clause (15 Couch on Insurance 3d § 219:27-28; 23 Holmes' Appleman on Insurance 2d § 140.2[A]).
In this case, the applicable "other insurance" clause of the Evanston policy is an excess clause,[FN3] and the "other insurance" clause of the American policy is a pro rata clause [FN4]. It is well established under New York law that, where one of two concurrently applicable insurance policies contains an excess "other insurance" clause and the other contains a pro rata "other insurance" clause, the excess clause is given effect, meaning that the coverage under the policy containing the excess clause does not come into play, and the carrier's duty to defend is not triggered, until the coverage under the policy containing the pro rata clause has been exhausted (see General Acc. Fire & Life Assur. Corp. v Piazza, 4 NY2d 659, 669 [1958]; Harleysville Ins. Co. v Travelers Ins. Co., 38 AD3d 1364, 1367 [2007], lv denied 9 NY3d 811 [2007]; Firemen's, 233 AD2d at 193; see also International Bus. Mach. Corp. v Liberty Mut. Fire Ins. Co., 303 F3d 419, 429 [2d Cir 2002] [applying New York law]; Great Northern, 92 NY2d at 687; Pav-Lak Indus., Inc. v Arch Ins. Co., 56 AD3d 287, 288 [2008]; Tishman Constr. Corp. of N.Y. v American Mfrs. Mut. Ins. Co., 303 AD2d 323, 324 [2003])[FN5]. By contrast, where each policy contains an excess "other insurance" clause, so that giving each policy's clause effect would leave the insured without primary insurance, the clauses are deemed to cancel each other out, and the insurers are required to cover the loss on a pro rata basis (see Great Northern, 92 NY2d at 687; Jefferson Ins. Co., 92 NY2d at 372; LiMauro, 65 NY2d at 373-374; Federal Ins. Co. v Atlantic Natl. Ins. Co., 25 NY2d 71, 75-76 [1969]).
The New York rule giving effect to an excess "other insurance" clause in one of two concurrent policies, where the other policy contains a pro rata "other insurance" clause, conforms to the majority rule throughout the nation (see 15 Couch on Insurance 3d § 219:51; 23 Holmes' Appleman on Insurance 2d § 140.3[2][a], at 126; 1 Ostrager and Newman, Insurance Coverage Disputes § 11.03[d][1][A], at 907). The reasoning behind the rule is that, because a pro rata clause applies only in the presence of other primary insurance, there is no conflict between a primary policy containing a pro rata clause and a second primary policy containing an excess clause rendering the latter excess to other primary insurance. Moreover, giving effect to the excess clause conforms to the insurers' intent as expressed in their respective policies. As the District of Columbia Court of Appeals has explained:
"[T]he standard phrase other valid and collectible insurance' means other valid and collectible primary insurance. It follows, then, that the policy containing the pro rata clause is other valid and collectible primary insurance that triggers application of the excess clause in the second policy. The excess clause in the second policy therefore is given full effect and that carrier is liable only for the loss after the primary insurer had paid up to its policy limits. The policy containing the excess clause, however, is not considered to be other valid and collectible primary insurance for the purpose of triggering the operation of the pro rata clause, because when a stated contingency occurs, that is, when there is other valid and collectible primary insurance available to the insured, the policy containing the excess clause becomes secondary coverage only" (Jones v Medox, Inc., 430 A2d 488, 491 [DC 1981]).
Accordingly, giving effect to the Evanston policy's excess "other insurance" clause, Sport Rock's coverage as a named insured under the Evanston policy is excess to Sport Rock's additional insured coverage under the American policy. Hence, Evanston's obligation to defend Sport Rock in the Anaya action will not be triggered until Sport Rock's coverage under the American policy has been exhausted or otherwise terminated [FN6]. And, to reiterate, Sport Rock's coverage under the American policy obligates American to defend every claim against Sport Rock in the Anaya action, whether or not it is within the scope of American's potential duty to indemnify Sport Rock.
For the most part, American does not dispute the foregoing principles. Nonetheless, American argues that Evanston is obligated to share with American the expense of defending Sport Rock because Evanston remained Sport Rock's primary insurer for the now-dismissed claims formerly asserted against Sport Rock in the Anaya action that were outside the scope of American's indemnification obligations under the vendor's endorsement to Petzl's policy. The motion court was persuaded by this argument, but we are not.
The hallmark of New York's approach to "other insurance" issues is the "recogni[tion] [of] the right of each insurer to rely upon the terms of its own contract with its insured" (LiMauro, 65 NY2d at 373). Thus, in seeking to determine the effect of the Evanston policy's excess "other insurance" clause, our first resort is to the language of that clause, which, to reiterate, is as follows:
"The coverage afforded the insured under this Coverage Part will be excess over any valid and collectible insurance available to the insured as an additional insured under a policy issued to a manufacturer or distributor for products manufactured, sold, handled or distributed."
The above-quoted "other insurance" clause of the Evanston policy does not qualify in any way "the coverage afforded the insured under this Coverage Part" to which it applies. Since such coverage includes both a duty to defend and a duty to indemnify, the "other insurance" clause renders all such coverage, the duty to defend no less than the duty to indemnify, excess to the referenced other insurance. Similarly, the above-quoted "other insurance" clause plainly states that the coverage provided by the Evanston policy is made excess over "any valid and collectible insurance available to the insured as an additional insured" (emphasis added) under a vendor's endorsement to a manufacturer's or distributor's policy. Thus, the clause renders all of Evanston's coverage excess over all insurance available to the insured under such a vendor's endorsement, including both the other insurer's duties to defend and to indemnify. In this regard, it should be borne in mind that a liability insurance policy "represent[ing] that it will provide the insured with a defense . . . actually constitutes litigation insurance in addition to liability coverage" (Cook, 7 NY3d at 137 [internal quotation marks and citations omitted]).
As previously discussed, American's duty to defend Sport Rock extends to all claims asserted against the latter in the Anaya action, even those claims that, if reduced to judgment, would fall outside the scope of American's duty to indemnify under the vendor's endorsement to the Petzl policy (i.e., any claim against Sport Rock based on Sport Rock's own negligence or the alleged defectiveness of a product not manufactured by Petzl). Since the plain terms of the excess "other insurance" clause of the Evanston policy render all of Evanston's coverage obligations excess to all of American's coverage obligations, Evanston's duty to defend Sport Rock in the Anaya action is not triggered to any extent —- even as to claims not within American's duty to indemnify —- until American's duty to defend Sport Rock against all claims in that action has terminated, by reason of exhaustion of limits or otherwise. To hold otherwise would defeat Evanston's reasonable expectations based on its "right . . . to rely upon the terms of its own contract with its insured" (LiMauro, 65 NY2d at 373).
In holding Evanston's coverage excess to American's coverage for purposes of the obligation to defend Sport Rock against all claims in the Anaya action, we follow this Court's 1996 decision in Firemen's (supra), a case that American describes as "wrongly decided" while acknowledging that it supports Evanston's position. In Firemen's, the two polices at issue were Firemen's general liability policy, which had a pro rata "other insurance" clause, and Federal's directors' and officers' liability policy, which had an excess "other insurance" clause [FN7]. We analyzed the issues in Firemen's as follows:
"Construing the policies and their other insurance' clauses according to the reasonable expectation of an ordinary businessperson making an ordinary business contract, the IAS court properly determined [Federal] to be an excess insurer, where, as here, a loss, including defense costs, can be covered by another policy [i.e., the Firemen's policy]. Nor is [Firemen's] only required to pay the costs of defending the risks specified in its general liability policy, since an insurer's obligation to defend encompasses the entire complaint where, as here, the insurer has any potential indemnity obligations" (233 AD2d at 193 [emphasis added and citations omitted]).

On those grounds, we affirmed the judgment "declar[ing] that [Federal] was not obligated as a primary insurer to defend the underlying actions" (id.). Here, the same reasoning leads to the conclusion that Evanston will not be obligated to defend Sport Rock in the Anaya action until American's coverage has been exhausted.[FN8]
In arguing for a contrary result, American relies on General Motors Acceptance Corp. v Nationwide Ins. Co. (4 NY3d 451 [2005] [hereinafter, GMAC]). Such reliance is misplaced. True, GMAC did direct an allocation of defense costs between two primary policies even though "one [was] excess to the other by reason of competing other insurance' provisions" (id. at 453). As noted in the decision's opening paragraph, however, crucial to that result was the circumstance that "the excess carrier [Fireman's] ha[d] voluntarily assumed and marshaled the insured's [i.e., GMAC's] defense" (id. [emphasis added]) upon tender by Nationwide, which had issued a primary automobile liability policy for a leased vehicle that covered GMAC (the lessor) as an additional insured. The Court of Appeals explained later in the opinion that, "[i]n assuming the defense, Fireman's triggered its own duty to defend the action" (id. at 456). By contrast, Evanston, the excess carrier in this case, promptly tendered the insured's defense to American, the primary carrier, and Evanston only proceeded to conduct that defense after the [*11]tender was rebuffed. Thus, Evanston, unlike the excess carrier in GMAC, did nothing to trigger its duty to defend Sport Rock before that duty otherwise would have arisen.
Our conclusion that GMAC does not control the instant case is reinforced by another factor distinguishing this case from GMAC's particular circumstances. The "other insurance" clause of the Fireman's policy in GMAC (see 4 NY3d at 454) rendered the Fireman's policy excess to other insurance of all kinds, not other insurance of a specific kind, as is true of the "other insurance" clause of the Evanston policy applicable here. Again, the latter clause applies only to coverage afforded Sport Rock as an additional insured under the vendor's endorsement to a policy issued to a manufacturer or distributor. Thus, the Evanston policy's "other insurance" clause made the policy excess to the particular kind of other insurance afforded Sport Rock by the American policy. This indicates that Evanston, in issuing Sport Rock's policy, did not contemplate assuming on a primary basis the risk of liability arising from Sport Rock's acting as a vendor of products (such as the Petzl harness) manufactured or distributed by other firms, an expectation that presumably was reflected in the premium charged for the policy. In sum, the express exclusion of a particular class of risks from primary coverage under the terms of the Evanston policy's excess "other insurance" clause further distinguishes this case from GMAC.
We recognize that GMAC arguably could be read as a departure from prior case law giving effect to one policy's excess "other insurance" clause where another concurrent policy contains a pro rata "other insurance" clause. We are persuaded not to read GMAC as such a departure, however, by the Court of Appeals' express "reject[ion] [of] Nationwide's position . . . that an equitable allocation between a primary and excess insurer must be realized [in all cases]," immediately followed by the Court's statement that it was "hold[ing] only that, under the circumstances of this case, both insurers should be required to share defense costs" (4 NY3d at 457-458 [emphasis added]). Accordingly, we do not believe that the Court of Appeals intended GMAC to control cases, like this one, that present significantly different circumstances. Indeed, GMAC, by limiting its holding to the particular circumstances of that case, including the excess carrier's voluntary assumption of the defense, and by specifically rejecting Nationwide's broader position, inferentially supports Evanston's position here.[FN9]
Recently, and after this appeal was submitted, a different panel of this Court decided another case raising a somewhat similar issue relating to the defense obligations of a primary insurer whose policy, like Evanston's, contained an excess "other insurance" clause. In Fieldston Prop. Owners Assn., Inc. v Hermitage Ins. Co., Inc. (__ AD3d __, 873 NYS2d 607 [2009]), the insureds (a property owners association and certain of its directors and officers) were defended by Hermitage, the association's CGL carrier, in two underlying actions in which the insureds were sued for alleged interference with various rights of another property owner and for publishing alleged "injurious falsehood[s]." Hermitage, pointing out that its policy covered, at most, only the injurious falsehood claims, sought reimbursement of its defense costs from Federal, the insureds' directors and officers liability (D & O) carrier, whose policy covered at least some of the other claims in the underlying actions in addition to the injurious falsehood claims. Federal argued that Hermitage was required to bear all defense costs up to its policy limit because the Federal policy had an excess "other insurance" clause, while the Hermitage policy had a pro rata "other insurance" clause. Nonetheless, this Court held:
"Hermitage is entitled to contribution from Federal for Federal's equitable share of all the defense costs incurred by Hermitage, except for the costs Hermitage incurred in defending against the injurious falsehood claims if those claims are covered by both policies or are covered solely by the [Hermitage] CGL policy" (873 NYS2d at 612).

Thus, the Fieldston court applied the Federal policy's excess "other insurance" clause only to the defense of the injurious falsehood claims to the extent such claims were covered by both policies, not to the defense of the claims based on interference with property rights covered only by Federal.
In deciding Fieldston, this Court found it significant that "the [Hermitage] CGL and [Federal] D & O policies do not provide concurrent coverage as they do not insure against the same risks" (873 NYS2d at 611). This appears to refer to the fact that the Hermitage policy covered the claims against the insureds for injurious falsehood but none of the claims for interference with property rights, at least some of which were covered by the Federal policy. Evidently, the injurious falsehood claims, on the one hand, and the property-interference claims, on the other hand, sought recovery for different alleged losses, representing entirely different risks. Thus, since "other insurance" principles govern "where two or more insurance policies cover the same risk" (Great Northern, 92 NY2d at 686-687), the Federal policy's excess "other insurance" clause arguably did not apply to the property-interference claims in the actions underlying Fieldston, which claims (unlike the injurious falsehood claims) represented losses of a kind not covered by the Hermitage policy.[FN10]
The concurrence suggests that Fieldston may be distinguished from the instant case insofar as the result in Fieldston was based on the concept that two policies constitute "other insurance" with respect to each other only to the extent that they "cover [the same insured for] the same risk" (Great Northern, 92 NY2d at 686-687, citing Ostrager and Newman, Insurance Coverage Disputes, § 11.01, at 581 [9th ed]; see also 15 Couch on Insurance 3d § 219:14). That condition, although found not to have been satisfied in Fieldston, is plainly satisfied here, where the two policies, notwithstanding their differences in scope, covered the same risk of liability for "bodily injury." While certain of the theories of recovery formerly asserted against Sport Rock in the Anaya action were not within the scope of American's duty to indemnify Sport Rock, all claims that have been asserted in that lawsuit seek recovery for precisely the same loss, one plainly constituting a covered "bodily injury" under both the American policy and the Evanston policy. We reject American's argument that, to the extent its duty to indemnify Sport Rock does not extend to all theories of recovery asserted in the Anaya action, its policy and that of Evanston cover risks sufficiently different to render the Evanston policy's excess "other insurance" clause inapplicable. "The rule that the risks be identical in order for an other insurance' clause to apply does not mean that the total possible coverage under each policy be the same, but merely that with respect to the harm which has been sustained there be coverage under both policies" (15 Couch on Insurance 3d § 219:14; see also id. § 219:17 ["For the purposes of an other insurance' clause, it is sufficient that both policies provide overlapping coverage for the risk involved"]).
Inasmuch as the Evanston and American policies covered Sport Rock for the same risk, the resolution of this appeal does not require further discussion of the rights and obligations inter se of two or more liability carriers, each covering the same insured for a different risk, whose coverage is implicated in the same litigation. To the extent, if any, Fieldston may be read to address the situation presented here (i.e., in which a lawsuit implicates the coverage of two policies covering the same insured for the same risk), we respectfully decline to follow it, recognizing that any conflict ultimately will have to be resolved by the Court of Appeals. The Fieldston opinion takes the position that its result is inconsistent with Firemen's (supra) (a case cited with approval by the Court of Appeals in GMAC [4 NY3d at 456]) and expressly "refuse[s] to follow our decision in Firemen's" (Fieldston, 873 NYS2d at 614) for what are, in our view, insufficient reasons. We disagree with the Fieldston opinion's assertion that the result in Firemen's "is not supported by the plain language of the other insurance' clause in that case" (873 NYS2d at 614)[FN11]. Moreover, we find that the two more recent decisions cited in Fieldston as support for abandoning Firemen's have no bearing on the vitality of the Firemen's holding. One of those decisions, Consolidated Edison Co. of N.Y. v Allstate Ins. Co. (supra), in the course of addressing the issue of allocation of coverage for a continuous loss among successive policies (98 NY2d at 221-225) (an issue not presented either here or in Firemen's), mentioned "other insurance" clauses only by way of noting that such "clauses have nothing to do with this determination" (id. at 223). The other decision, Fireman's Fund Ins. Co. v Abax, Inc. (12 AD3d 277 [2004]), simply held that the excess "other insurance" clause relied upon by the insurer claiming excess status in that case was not implicated in the underlying personal injury action because that clause was part of the subject policy's property coverage section, not its liability coverage section (see id. at 278).
Our concurring colleague, while reaching the same conclusion we do in this case, asserts that we "unnecessarily" challenge the validity of the Fieldston holding because, in his view, Fieldston is distinguishable from the instant case on the grounds discussed above. We welcome the attempt by the concurrence to harmonize the unanimous result here with the result in Fieldston, and, to reiterate, we do not challenge the specific result reached in Fieldston on the particular set of facts presented in that case. We cannot close our eyes, however, to the aspects of the Fieldston opinion that arguably represent a departure from the "settled law" we are following (as the concurrence acknowledges) in deciding this appeal. In this regard, we point to the position apparently taken in Fieldston that Hermitage's duty to defend the insured against a claim outside the scope of its duty to indemnify did not constitute other insurance for purposes of the Federal policy's excess "other insurance" clause (see 873 NYS2d at 611 n 1]). Moreover, Fieldston expressly rejected this Court's precedent in Firemen's without relying on any theory that the carriers in Firemen's covered different risks (see 873 NYS2d at 614); in other words, the Fieldston opinion appears to regard Firemen's as wrongly decided whether the policies at issue in Firemen's covered the same risk or different risks.
Our concern that Fieldston represents a departure from precedent is compounded by the policy arguments it offers in support of its determination to require the excess carrier to share in defense costs (see 873 NYS2d at 613), which arguments do not appear to be limited to cases where the policies at issue insure against different risks. Since this bench unanimously considers our resolution of the instant appeal to be required by settled law, we have no occasion to respond to Fieldston's policy arguments. We observe, however, that our present decision is consistent with the public policy favoring the enforcement of contractual agreements, including insurance policies, in accordance with their terms so as to give effect to " the reasonable expectation and purpose of the ordinary business [person] when making an ordinary business contract'" (BP A.C. Corp., 8 NY3d at 716, quoting Album Realty Corp. v American Home Assur. Co., 80 NY2d 1008, 1010 [1992]). Moreover, our adherence to settled law in deciding this appeal furthers the goals of "[c]larity and predictability," which "are particularly important in the interpretation of contracts" (Moran v Erk, 11 NY3d 452, 457 [2008]), to the end that "parties [engaged in commercial dealings] may intelligently negotiate and order their rights and duties" (Matter of Southeast Banking Corp., 93 NY2d 178, 184 [1999]; see also Maxton Bldrs. v Lo Galbo, 68 NY2d 373, 381 [1986] ["when contractual rights are at issue, where it can reasonably be assumed that settled rules are necessary and necessarily relied upon, stability and adherence to precedent are generally more important than a better or even a correct' rule of law"] [some internal quotation marks and citation omitted]).
Since we conclude that Sport Rock's coverage under the Evanston policy is excess to its coverage under the American policy for purposes of the defense of the Anaya action, no question arises of the allocation of the costs of defending that lawsuit between the two carriers. American will be required to fund Sport Rock's defense, without contribution from Evanston, until American's coverage has been exhausted, whereupon Evanston will be required to take over the defense (see GMAC, 4 NY3d at 456 ["a primary insurer has a duty to defend without any entitlement to contribution from an excess insurer'"], quoting Firemen's, 233 AD2d at 193]). Further, Evanston is entitled to reimbursement from American for all costs Evanston has heretofore reasonably incurred in defending Sport Rock in the Anaya action. If American believes that insurers other than Evanston may owe Sport Rock primary coverage in the Anaya action, American may seek contribution from such insurers.
Duty to Indemnify
As previously noted, on an appeal in the Anaya action, this Court ruled that the only remaining viable claims against Sport Rock in that suit are based on the theories that the Petzl harness was defectively designed and that it failed to include warning labels necessary to render it safe (Anaya, 44 AD3d at 486-488). Specifically, the motion court had granted both Sport Rock and Petzl summary judgment dismissing Joseph Anaya's complaint as against them (id. at 485). On Anaya's appeal, we modified the motion court's order to reinstate the claims against Sport Rock and Petzl, but only insofar as based on the contention that "the alleged defective design of the harness, the alleged inadequate warnings [on the harness], or both, was a substantial factor in causing plaintiff's injuries" (id. at 488). Thus, at this point in the litigation, it is clear that any judgment that may be rendered against Sport Rock in the Anaya action will fall within the scope of American's duty to indemnify Sport Rock as an additional insured under the vendor's endorsement to Petzl's policy, which affords Sport Rock coverage for a "bodily injury . . . arising out of [Petzl's] products . . . which are distributed or sold in the regular course of [Sport Rock's] business" (internal quotation marks omitted). Accordingly, we grant Sport Rock summary judgment declaring that American will be obligated to indemnify Sport Rock, up to the limits of Sport Rock's coverage under the American policy, for any judgment against Sport Rock in the Anaya action. American's argument that we should not take notice of this Court's own published decision in the Anaya action is without merit.
Accordingly, the order of Supreme Court, New York County (Debra A. James, J.), entered August 27, 2007, which granted plaintiffs' motion for summary judgment to the extent of declaring that defendant American is obligated to defend plaintiff Sport Rock in the Anaya action, and otherwise denied the motion, unanimously modified, on the law, to further declare that the coverage afforded Sport Rock in the Anaya action under the policy issued to it by plaintiff Evanston is excess over the primary coverage afforded Sport Rock therein as an additional insured under the policy American issued to nonparty Petzl, that Evanston will not be obligated to contribute to Sport Rock's defense or indemnification in the Anaya action until Sport Rock's coverage from American has been exhausted, and that American is obligated to reimburse Evanston up to the applicable limit of American's policy for all costs Evanston has heretofore incurred in defending Sport Rock in the Anaya action, and otherwise affirmed, with costs in favor of Sport Rock and Evanston payable by American.
All concur except Saxe and Catterson, JJ. who concur in a separate opinion by Saxe, J.

SAXE, J. (concurring)
I agree with the majority that the insurance coverage afforded to plaintiff Sport Rock International, Inc., under the commercial general liability policy issued to it by Evanston Insurance Co., is excess to the primary coverage afforded to Sport Rock as an additional insured under the commercial general liability policy issued by American Casualty to non-party Petzl. Accordingly, I concur in the resulting holding that Evanston is not obligated to contribute to Sport Rock's defense or indemnification in the underlying personal injury action until American's coverage has been exhausted and that American must reimburse Evanston for costs it has incurred in the defense. I part company to the extent the majority opinion challenges —- unnecessarily — the validity of this Court's recent holding in Fieldston Property Owners Assn. v Heritage Ins. Co. (__ AD3d __, 873 NYS2d 607 [2009]).
The underlying claims at issue against Sport Rock are for bodily injury incurred while wall climbing at a sports club, using a safety harness manufactured by Petzl. The insurance policy issued to Petzl by American Casualty contains a vendor's endorsement providing primary coverage to purchasers of the product such as plaintiff Sport Rock, as additional insureds, for claims of bodily injury based upon alleged defects in Petzl's products. Evanston, plaintiff's own insurer, similarly provides coverage for claims of bodily injury against the insured. Evanston's policy contains the following "other insurance" clause:
"When [Sport Rock] [is] added to a manufacturer's or distributor's policy as an additional insured because [it] [is] a vendor for such manufacture[r]'s or distributor's products ... [t]he coverage afforded [Sport Rock] under this Coverage Part will be excess over any valid and collectible insurance available to the insured as an additional insured under a policy issued to a manufacturer or distributor for products manufactured, sold, handled or distributed."

In contrast, as the majority observes, the "other insurance" provision of American Casualty's policy provides that if other primary insurance is available, American Casualty will share coverage.
Under the settled law of this state, to the extent the same risk is covered by two primary policies, the two insurers' respective defense and indemnification obligations are determined by reference to each of the policies' "other insurance" provisions (see Great N. Ins. Co. v Mount Vernon Fire Ins. Co., 92 NY2d 682, 686-687 [1999]). This rule unquestionably applies here, where the two policies both cover the risk of the bodily injury alleged in the complaint; so Evanston, whose "other insurance" clause amounts to an excess clause, must be treated as an excess insurer (see Harleysville Ins. Co. v Travelers Ins. Co., 38 AD3d 1364 [2007], lv denied 9 NY3d 811 [2007]).
This Court's recent decision in Fieldston Property Owners (supra) is not in conflict with this ruling or the settled law on which it is based. There, the two insurance policies at issue did not cover the same risk: one commercial general liability carrier covered only an underlying injurious falsehood claim, while the insured's directors' and officers' liability policy covered claims for interference with property rights. The crux of the analysis in Fieldston was that — unlike the circumstances here —- the two policies did not insure against the same risks, rendering inapplicable the settled law regarding two primary insurance carriers covering the same risk, and the import of their respective "other insurance" provisions. We therefore properly ordered an equitable sharing of the defense costs between the carriers in Fieldston.
Since the circumstances in Fieldston are distinguishable from those presented here, there is no need to analyze or criticize its reasoning. To the extent the majority discusses and disapproves of the reasoning in Fieldston, I disagree with the majority opinion.

Order, Supreme Court, New York County (Debra A. James, J.), entered August 27, 2007, modified, on the law, to further declare that the coverage afforded Sport Rock in the Anaya action under the policy issued to it by plaintiff Evanston is excess over the primary coverage afforded Sport Rock therein as an additional insured under the policy American issued to nonparty Petzl, that Evanston will not be obligated to contribute to Sport Rock's defense or indemnification in the Anaya action until Sport Rock's coverage from American has been exhausted, and that American is obligated to reimburse Evanston up to the applicable limit of American's policy for all costs Evanston has heretofore incurred in defending Sport Rock in the Anaya action, and otherwise affirmed, with costs in favor of Sport Rock and Evanston payable by American.
Opinion by Friedman, J. All concur except Saxe and Catterson, JJ. who concur in a separate opinion by Saxe, J.
Tom, J.P., Saxe, Friedman, Buckley, Catterson, JJ.

 

Footnotes

Footnote 1:As recognized by the Court of Appeals, a vendor's endorsement to a manufacturer's liability policy " covers the vendors' liability arising out of their role in passing the manufacturer's product on to customers, but does not cover vendors for their own negligence. Coverage under the vendor's endorsement is limited to injuries arising out of a defect in the manufacturer's product'" (Raymond Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 5 NY3d 157, 164 [2005], quoting 9 Couch on Insurance 3d § 130:3 [1997]).

Footnote 2:The American policy's "other insurance" clause provides in pertinent part: "4. Other Insurance "If other valid and collectible insurance is available to the insured for a loss we cover under Coverage[] A [Bodily Injury and Property Damage Liability] . . . of this Coverage Part [the CGL Coverage Form], our obligations are limited as follows: "a. Primary Insurance "This insurance is primary except when b. below applies. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described in c. below." Subsection b. specifies conditions under which the American policy's coverage will be deemed excess. None of those conditions is satisfied in this case.

Footnote 3:As previously indicated, the applicable "other insurance" clause of the Evanston policy provides, in pertinent part, that the policy's coverage is "excess over any valid and collectible insurance available to the insured [Sport Rock] as an additional insured under a policy issued to a manufacturer or distributor for products manufactured, sold, handled or distributed."

Footnote 4:As previously indicated, the "other insurance" clause of the American policy provides, in pertinent part, that, if other primary insurance is available, "we will share with all that other insurance" either by equal shares or in proportion to policy limits.

Footnote 5:It should be added, however, that an excess "other insurance" clause will not render a policy sold as primary insurance excess to a true excess or umbrella policy sold to provide a higher tier of coverage (see Jefferson Ins. Co., 92 NY2d at 372; LiMauro, 65 NY2d at 371; Bovis Lend Lease LMB, Inc. v Great Am. Ins. Co., 53 AD3d 140, 142, 148-150 [2008]; Cheektowaga Cent. School Dist. v Burlington Ins. Co., 32 AD3d 1265, 1267-1268 [2006]; 1 Ostrager and Newman, Insurance Coverage Disputes § 11.01, at 892 [14th ed] [although " other insurance' clauses may operate to convert a primary policy into an excess policy . . . , insurance purchased as primary coverage must respond to a covered claim before policies specifically purchased as secondary coverage, regardless of the presence of other insurance' clauses in the primary policies"] [citations omitted]).

Footnote 6:We do not suggest that American would continue to have a duty to defend Sport Rock in the Anaya action in the event all claims within the scope of American's duty to indemnify Sport Rock were dismissed. However, this Court's decision resolving the prior appeal in the Anaya action establishes (as previously noted) that the only claims against Sport Rock that remain pending in that lawsuit are based on the allegedly defective design or inadequate labeling of the Petzl harness (see Anaya, 44 AD3d at 486-488). Thus, it is evident at this juncture that American will be obligated to indemnify Sport Rock for any judgment against the latter in the Anaya action.

Footnote 7:Although the Firemen's decision does not fully spell out the terms of the Firemen's policy's "other insurance" clause, the record of that appeal shows that the Firemen's policy contained a pro rata "other insurance" clause generally similar to that of the American policy in this case. Specifically, under the "other insurance" clause of the Firemen's policy in the earlier case, as under the American policy here (see footnote 2 above), the insurer agreed to "share [coverage] with all that other [primary] insurance" available to the insured, except under certain conditions (none satisfied in the case at bar) that would render the policy excess to the other primary insurance. The Firemen's record also shows that the Federal policy in that case contained an excess "other insurance" clause, which provided in pertinent part: "If any Loss arising from any claim made against the Insured is insured under any other valid policy(ies), prior or current, then this policy shall cover such Loss . . . only to the extent that the amount of such Loss is in excess of the amount of such other insurance whether such other insurance is stated to be primary, contributory, excess, contingent or otherwise, unless such insurance is written only as specific excess insurance over the limits provided in this policy."

Footnote 8:See also Federal Ins. Co. v St. Paul Fire & Mar. Ins. Co./St. Paul Mercury Ins. Co., 985 F2d 979, 980 [8th Cir 1993], affg 1992 US Dist LEXIS 1224 [WD Mo 1992] [holding, under Missouri law, that an insurer (St. Paul) whose policy had a pro rata "other insurance" clause was required to bear the entire cost of defending the insured in a suit alleging defamation and antitrust claims without contribution from a second insurer (Federal) whose policy had an excess "other insurance" clause, although Federal's policy covered both defamation and antitrust liability and St. Paul's policy covered only defamation liability]).

Footnote 9:Also unavailing is American's reliance on Cordial Greens Country Club v Aetna Cas. & Sur. Co. (41 NY2d 996 [1977]), which, in holding that two insurers shared the duty to defend the insured in an underlying personal injury action, did not even mention the policies' "other insurance" clauses.

Footnote 10:As this Court also noted in Fieldston, the two policies at issue in that case also clearly covered different risks to the extent their respective periods of coverage did not overlap (see 873 NYS2d at 612 n 2; see also Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208, 223 [2002] [" other insurance' clauses . . . apply when two or more policies provide coverage during the same period"]). In this case, it is undisputed that Sport Rock was covered by both policies at issue when Anaya's accident occurred and when the claim arising from that accident was first made against Sport Rock.

Footnote 11:The pertinent language of the "other insurance" clauses of the two policies at issue in Firemen's are set forth in footnote 7 above.

Passante v Agway Consumer Products, Inc.,



W. Bradley Hunt, for appellants.
Jeffrey F. Baase, for respondent Mullen Industrial
Handling Corp.
Janet D. Callahan, for respondent Rite-Hite
Corporation.

PIGOTT, J.:
Samuel Passante, an employee of Agway Consumer Products, Inc., doing business as G & P Fresh Pac, was injured while using a mechanical dock leveler at the company's warehouse in DeWitt. The dock leveler was manufactured by Rite-Hite Corporation and sold to G & P by Mullen Industrial Handling Corp. The dock leveler at issue here is a mechanical platform designed to provide a ramp between a loading dock and the bed of a truck or tractor trailer. When not in use, the dock leveler is flat and part of the loading dock floor. It rises to match the height of the load bed, so as to enable forklifts or pallet trucks to move in and out of the trailer.
Once activated, the platform of the leveler swings up, and a hinged lip at its edge also moves up - from a pendent position perpendicular to the platform to a position in which it forms an extension of the platform - in order to meet the trailer bed. The operator then walks towards the edge of the leveler platform and, if his weight is sufficient, forces the platform down - toward the trailer bed - so that the lip catches the trailer floor. This is known as "walking down" the leveler. Once the hinged lip has engaged the bed of the trailer, it provides a transition between the loading dock floor and the trailer bed. However, the lip is designed to rotate back into its pendent position if it is not supported, and the parties do not dispute that a person standing on an unsupported lip will fall. A Rite-Hite instruction sheet was posted on a wall in the loading dock area, which, among other things, warned operators not to walk on the lip of a dock leveler when "walking down" the leveler.

According to Rite-Hite's design engineer, the leveler here was designed for a "150 pound walkdown," meaning that a person who weighs about 150 pounds would be able to bring the leveler platform down to the requisite height by simply walking to the edge of the platform. Passante, who weighed 140 pounds, testified that he was not heavy enough to force the leveler platform down to the trailer bed without standing on the hinged lip. Moreover, Joseph Panebianco, the G & P assistant facility manager and a heavier man, testified that he too was unable to "walk down" the leveler successfully without standing on the lip.
Mullen had offered to sell G & P a system manufactured by Rite-Hite, called "Dok-Lok", that secures a tractor trailer to the loading dock and includes a warning system so that workers know when they can safely enter the trailer and drivers know when they can safely pull away. G & P declined to buy a Dok-Lok system, instead relying on wheel chocks - wedges placed beneath or behind a truck's wheels to prevent movement. Panebianco testified that he decided against Dok-Lok partly because it would require having an operator and also because a driver who "doesn't use his head and drives off" while a Dok-Lok is engaged would in his opinion tear the bumper from his trailer.
Passante's accident occurred when he was "walking down" the dock leveler in order to get the platform to rest on a trailer. He was standing on the hinged lip of the leveler as it made contact with the trailer bed. Unbeknownst to Passante, the driver of the tractor-trailer had not completed the process of parking, and no chocks were in place. Passante remained standing on the hinged lip for a "split second" after completing the "walk down." At that moment, the driver began to move the tractor-trailer forward and, without the support of the trailer bed, the lip fell to its pendent position, causing Passante to fall onto a cement and steel grate, sustaining injury.
Passante and his wife commenced this action, against G & P, Rite-Hite and Mullen, alleging, among other things, that the dock leveler Mullen sold to G & P was defectively designed by Rite-Hite because it lacked equipment restraining the tractor trailer or securing it to the loading dock while the dock leveler was in use, and lacked a system to warn the operator when it was safe to enter the trailer or, in the alternative, notifying the driver that a dock leveler was in position. The Passantes also allege that Mullen negligently failed to warn G & P of the danger that movement of a tractor-trailer during the operation of a dock leveler would cause the it to collapse. The complaint also alleged manufacturing defects, negligent installation and maintenance, and breach of warranty. Rite-Hite cross-claimed against Mullen.
Following discovery, Mullen moved for summary judgment, attaching deposition transcripts and various other documents, including a Rite-Hite sales brochure describing its Dok-Lok trailer restraint systems. The brochure vividly described the dangers faced by the operators of dock levelers when tractor trailers are unsecured. Rite-Hite described the space between loading dock and trailer bed - the space bridged by its dock levelers - as a warehouse's "Danger Zone."
"Every time a lift truck impacts the ramp, crosses [the Danger] Zone, and enters a trailer, the trailer can inch forward. When it moves too far, or departs prematurely, the lift truck and driver can tumble into the gap with disastrous results. . . . The impact of a lift truck moving in and out of the trailer during loading operations causes the trailer to inch forward slightly - even with the brakes set and the wheels chocked. When the trailer moves beyond the reach of the leveler's lip, the lip falls, leaving a large gap. The lift truck and operator may then topple off the leveler or trailer and onto the driveway. . . . [In another common scenario] the truck driver, assuming loading operations are completed, pulls away without warning. This unexpected departure from the dock can cause the forklift and operator to be thrown onto the driveway."
The brochure noted that wheel chocks were ineffective and expensive, and recommended one of its Dok-Lok systems to ensure the safety of dock leveler operators.
In opposition to Mullen's motion, plaintiffs submitted the affidavits of a mechanical engineer and an industrial engineer. The mechanical engineer, noting the testimony from Passante and Panebianco to the effect that they could not get the dock leveler to operate without standing on its lip, had inspected the dock leveler involved in the accident. Even with a body weight of 180 pounds, the mechanical engineer was unable to urge the dock leveler to a horizontal position. The engineer concluded that, at 140 pounds, Passante would not be able to impel the dock leveler down simply by "walking down" to the edge of its platform. "As a result," he observed, "it was necessary for Samuel Passante, as well as for Joseph Panebianco, to position themselves on the extended lip in order for the equipment to achieve its operational goals." The mechanical engineer, noting that "the unscheduled departure of a tractor trailer is a known risk in the materials handling industry," concluded that "with a reasonable degree of engineering certainty, the equipment created an unreasonable risk of harm to the operator both from falls from the collapsing lip, as well as from falls caused by the unscheduled departures of tractor trailers."
The industrial engineer's opinion was that the "warnings positioned on the wall, remote from the pull-chain which initiates the operation of the mechanical dock leveler in question, would not effectively remind the operator of the dangers associated with walking on the extended lip of the equipment. . . . To properly warn the operator, . . . a warning medallion connected to the links of the pull-chain directly at the point of operation was necessary. . . . Additionally, . . . some type of safety striping or demarcation of the lip itself was necessary to fully advise the operator as to the specific dangers involved in the steps he was taking during the operation of the equipment, to wit approaching the end of the platform and stepping onto the hinged lip itself."
The industrial engineer also noted that neither Rite-Hite nor Mullen had provided G & P with instructions for adjusting the dock leveler for operators of different body weights or with a warning that "operation outside of the parameters of 150 pound nominal walk down weight [i.e. the inability of someone weighing approximately 150 pounds to "walk down" the dock leveler without standing on the lip] indicates that the equipment is not operating properly." The industrial engineer concluded "with a reasonable degree of engineering certainty, this lack of properly placed warnings combined with the complete lack of warnings or instructions to the proper operating capacity of the equipment, creates an unreasonable risk of harm to the operator."
Supreme Court denied Mullen's motion, finding questions of fact concerning defective design and failure to warn. The Appellate Division reversed, dismissing the Passantes' complaint as against Mullen in its entirety (294 AD2d 831). Two dissenting Justices would have held that the defective design and failure to warn claims survived summary judgment.
After the Appellate Division's decision, Mullen moved for summary judgment dismissing Rite-Hite's cross-claims and Rite-Hite sought summary judgment dismissing plaintiffs' complaint [FN1]. Supreme Court dismissed Rite-Hite's cross-claims without prejudice on condition that Rite-Hite "may assert its cross-claims in the event of a reversal or modification in plaintiff's favor" of the Appellate Division's order by this Court. Supreme Court also required plaintiffs to consent to judgment dismissing their action should this Court affirm the Appellate Division's order. Plaintiffs appealed, pursuant to CPLR 5601 (d), bringing up for review the Appellate Division's order. We now modify the judgment appealed from and the Appellate Division's order, and reinstate the causes of action for defective design and failure to warn.
Mullen and Rite-Hite rely on our decision in Scarangella v Thomas Built Buses, Inc. (93 NY2d 655 [1999]). There, as here, plaintiff argued that a product was defectively designed insofar as it did not incorporate, as standard equipment, a particular safety feature. In Scarangella, plaintiff, who was employed as a school bus driver, was injured when a school bus struck her, while being operated in reverse in a bus parking yard. The distributor that sold the bus to the defendant school bus company had offered, as an optional safety feature, an alarm that would automatically sound when a driver shifted the bus into reverse gear. The bus company chose not to buy this equipment because the alarms were noisy and the buses were parked in a yard in a residential neighborhood where noise pollution was an issue.
We held that a product that fails to incorporate safety equipment is not defective, as a matter of law,
"where the evidence and reasonable inferences therefrom show that: (1) the buyer is thoroughly knowledgeable regarding the product and its use and is actually aware that the safety feature is available; (2) there exist normal circumstances of use in which the product is not unreasonably dangerous without the optional equipment; and (3) the buyer is in a position, given the range of uses of the product, to balance the benefits and the risks of not having the safety device in the specifically contemplated circumstances of the buyer's use of the product. In such a case, the buyer, not the manufacturer, is in the superior position to make the risk-utility assessment, and a well-considered decision by the buyer to dispense with the optional safety equipment will excuse the manufacturer from liability." (93 NY2d at 661 [emphasis in original].)
Because all three of the factors were present, a departure from strict liability was justified in Scarangella. First, defendant was a highly knowledgeable consumer, experienced in operating school buses and aware of the dangers and of the availability of the optional alarm (id.). Second, defendant's buses were used in reverse only in the parking yard (i.e. where there were no school children or other nonemployee pedestrians), so that the risk of harm from the absence of a back-up alarm was not substantial. Moreover, the bus drivers were instructed to use caution and to sound their regular horns when reversing. (93 NY2d at 661-662.) Third, the bus company, rather than the distributor, "was in a position to assess the efficacy of alternative safety measures in its operational rules and training of drivers. The buyer had the ability to understand and weigh the significance of costs associated with noise pollution and neighborhood relations, given the particular suburban location of the parking lot, against the anticipated, foreseeable risks of operating buses in a parking lot without a back-up alarm device or safeguard." (Id. at 662.) Because all three factors were present and plaintiff created no triable issues with respect to her claim that the absence of a back-up alarm was a design defect, the bus company was entitled to summary judgment as a matter of law.
Here, it is conceded that the first Scarangella principle is met; G & P was knowledgeable about dock levelers and knew that Dok-Lok was available as an option. However, defendants' further reliance on Scarangella is misplaced because they have not made a prima facie showing of entitlement to judgment as a matter of law relative to the second factor.
Defendants have not shown that the dock leveler would normally be used in circumstances in which the product is not unreasonably dangerous without a trailer restraint system such as Dok-Lok. Indeed, the Rite-Hite brochure, submitted by Mullen itself in its summary judgment papers, describes, as a pervasive risk, the danger that a tractor trailer will inch forward "even with the brakes set and the wheels chocked" or be driven forward inadvertently, with the result that a dock leveler operator falls from the leveler or trailer. Moreover, defendants have not refuted - whether by expert affidavits or by deposition testimony - the opinion of the mechanical engineer that the dock leveler, because of its collapsing lip, posed an unreasonable risk of harm to its operator.
In Scarangella, the risks associated with a bus reversing were limited because the buses only reversed when they were in the parking yard and the people in the yard - mostly other bus drivers - could carry on their tasks and avoid contact with the reversing buses simply by exercising caution. There was nothing about the buses, engaged in normal reverse driving, that would make them unreasonably dangerous. By contrast, the record here supports plaintiffs' position that a dock leveler, of the design involved here, creates a substantial risk of harm as normally used. This is because the dock leveler has a hinged lip that collapses if not supported, and yet the lip is an extension of the platform the operator must "walk down" in order to adjust the leveler to the correct height. Indeed the record evidence suggests further that operators of average weight or less must step onto the lip in order to "walk down" the leveler. If so, the dock leveler lip posed a risk to operators that could not be avoided simply by cautious operation.
We conclude that defendants have not demonstrated the absence of material issues of fact with respect to whether normal circumstances of use exist in which the dock leveler is not unreasonably dangerous without a trailer restraint system. Consequently, the second Scarangella factor is not satisfied, and the defective design cause of action should be reinstated. Having reached this conclusion, it is not necessary to discuss the third Scarangella factor.
Finally, there are triable issues of fact as to the sufficiency of the warnings concerning this equipment. An instruction sheet was posted on a wall in the loading dock area that included a warning not to walk on the lip of a dock leveler when "walking down" the leveler; and Passante was aware that the lip would begin to collapse during a "walk down" if the operator did not complete the "walk down" quickly enough. However, the instruction sheet contains no warning that it is dangerous to remain on the lip, even momentarily, after it has engaged the trailer bed. Passante himself was familiar, from a loading dock where he had worked previously, with a different design of dock leveler in which the hinged lip did not collapse. Moreover, plaintiffs submitted the affidavit of an industrial engineer who opined that the posted warning was insufficient and that a warning at the point of operation as well as striping or demarcation of the lip itself were necessary to remind the operator of the dangers of standing on the lip.
Thus, on this record, we cannot conclude as a matter of law that Passante was fully aware of the danger of standing on the dock leveler lip after it had engaged the trailer bed, or that site-of-operation warnings of the type recommended by the industrial engineer would have been superfluous. "[I]n cases where reasonable minds might disagree as to the extent of plaintiff's knowledge of the hazard, the question is one for the jury" (Liriano v Hobart Corp., 92 NY2d 232, 241 [1998]). Therefore, the cause of action for failure to warn should also be reinstated.
Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be modified, without costs, in accordance with this opinion, and, as so modified, affirmed.


SMITH, J.(dissenting):
In Scarangella v Thomas Built Buses (93 NY2d 655 [1999]), we held that a seller of equipment whose buyer refused to purchase an optional safety feature is, under certain conditions, immune from a claim that the product without the safety feature was defectively designed. This case is essentially a duplicate of Scarangella, and the majority has overruled Scarangella without saying so.
I
Rite-Hite manufactured, and Mullen sold, dock levelers. Rite-Hite also manufactured, and Mullen also offered for sale, a safety device known as a "Dok-Lok," which locks a truck to the loading platform, to prevent the truck from driving or rolling away while the dock leveler is in use.
Undoubtedly, both Rite-Hite and Mullen would have been delighted to sell the Dok-Lok to plaintiff Samuel Passante's employer, G & P, or to any other customer. A Rite-Hite sales brochure, quoted by the majority (majority op at 5), recommended this safety device with the enthusiasm typical of such literature, and Mullen gave G & P quotations for three different Dok-Lok models. But even the cheapest of these models - a manual device that might not have prevented this accident - was expensive; it would have added more than 50% to the cost of the dock leveler. The automatic models would have more than doubled the cost.
G & P was not interested in buying a Dok-Lok. The G & P employee responsible for this decision explained his reasons:
"Q. Did you consider the use of dock-lock equipment at this facility?
"A. Not really, because, there again, for our type of facility, you know, I mean, it really didn't seem to be something that works well in our type of a facility.
"Q. Why do you say that? What is the basis of your conclusion in that regard?
"A. Basically, a lot of our trucks are in and out relatively quickly, and they are quite often, my understanding with that type of equipment, you almost always have to have someone who is on the dock all the time to release - and my understanding with that type of equipment, there is an arm that comes down and catches the trailer, basically holds the trailer in. Number one, you have got to have someone, who is going to be operating that type of equipment. In our type of operation, you know, it is not feasible. And, number two, my experience with that type of equipment is that it really doesn't hold the truck in. If the thing comes down on your ICC bumper and the driver in the truck drives off, he just drives off and wrecks his bumper. It's been my experience, where I have seen some of this equipment, that if the driver doesn't use his head and drives off, all he ends up doing is tearing the heck out of the back of his trailer. So, I guess, I'm not convinced that it really works well, and it certainly doesn't seem to work well in this particular facility."
The majority today holds that Rite-Hite and Mullen may be sued for not overruling the buyer's objections and insisting that G & P purchase a dock leveler either with the Dok-Lok or not at all. As we held in Scarangella, this holding cannot be justified. Under circumstances like these, whether safety equipment should be bought is a decision for the buyer, not the seller and not the courts.
II
The defendant in Scarangella was a seller of school buses. It "offered buyers as an optional safety feature a back-up alarm that would automatically sound when a driver shifted the bus into reverse gear" (93 NY2d at 657). It sold several buses to the plaintiff's employer, a bus operator, which "chose not to purchase this optional equipment" (id.). The plaintiff was injured when a bus backed into her, and claimed that the absence of the alarm was a design defect. We held that this claim could not be presented to the jury.
In an effort to lend predictability to litigation of this kind, we set out "some governing principles for cases where a plaintiff claims that a product without an optional safety feature is defectively designed because the equipment was not standard" (id. at 661). We said:
"The product is not defective where the evidence and reasonable inferences therefrom show that: (1) the buyer is thoroughly knowledgeable regarding the product and its use and is actually aware that the safety feature is available; (2) there exist normal circumstances of use in which the product is not unreasonably dangerous without the optional equipment; and (3) the buyer is in a position, given the range of uses of the product, to balance the benefits and the risks of not having the safety device in the specifically contemplated circumstances of the buyer's use of the product."

(Id.)
These principles require dismissal of plaintiff's design defect claim here. G & P, as the majority concedes, was knowledgeable about dock levelers and knew that the Dok-Lok was available. It is no less true in this case than it was in Scarangella that "there exist normal circumstances of use in which the product is not unreasonably dangerous without the optional equipment." And G & P was in as good a position as the buyer in Scarangella to balance benefits and risks.
According to the majority, the second Scarangella test is not met here because "[d]efendants have not shown that the dock leveler would normally be used in circumstances in which the product is not unreasonably dangerous without a trailer restraint system" (majority op at 10). This is a misstatement, or at best a confusing paraphrase, of what Scarangella said. Under Scarangella, the second question is not whether equipment "would normally be used" without unreasonable danger; it is whether "there exist normal circumstances of use" where the danger is not unreasonable. In other words, if there exist buyers who use the product normally and can forego the safety feature without unreasonable risk, the judgment as to which buyers ought to do so is left to the buyers themselves.
Here, the record shows that circumstances did exist where a dock leveler without a Dok-Lok was reasonably safe in normal use. Indeed, the use of the system at the loading dock involved in this case was not unreasonably dangerous. The danger that a truck would roll away was absent here, because the ground on which trucks parked sloped uphill. (For this reason, the majority's discussion of wheel chocking is irrelevant.) And the risk of what actually happened - a driver's decision to move his truck while someone was standing at the edge of the dock leveler - could have been eliminated by a simple precaution: G & P could have instructed its employees not to use the dock leveler until they had confirmed that the truck's motor was off. Thus this case is not different from Scarangella, where the buyer's employees "were instructed as part of their training not to operate buses in reverse except in the yard" and "were also instructed to exercise caution and sound their regular horns when backing up" (93 NY2d at 662).
The third Scarangella test, which the majority does not discuss, is also met here. G & P, which loaded merchandise onto trucks from loading docks as a routine part of its business, was "in a position ... to balance the benefits and the risks ... in the specifically contemplated circumstances" of its own use of the dock leveler. In fact, it did balance those benefits and risks, as the above-quoted testimony of its decision-maker shows. If the buyer struck the wrong balance, there is no good reason to hold the manufacturer and seller liable.
III
The majority also concludes that plaintiffs' failure-to-warn claim can withstand summary judgment. I do not agree. Of course it is true, as it is in every case, that more and better warnings could possibly have been given; and it is true, as it is in almost every case, that plaintiffs' expert has opined that more and better warnings should have been given; but we need not decide whether this is enough to raise a jury question on the issue of negligent failure to warn, for it is abundantly clear that no warning could have prevented this accident (see Gebo v Black Clawson Co.,92 NY2d 387, 394-395 [1998]).
The majority suggests that a warning might have made a difference because Mr. Passante "was familiar, from a loading dock where he had worked previously, with a different design of dock leveler in which the hinged lip did not collapse" (majority op at 12). But the majority fails to mention that, during the five months he worked at G & P, Mr. Passante had hundreds of experiences with the Rite-Hite dock leveler and learned that the hinged lip on that equipment did collapse. He testified:
"Q. How did you know that [the lip] would drop if you didn't go out there fast enough?
"A. I pulled the chain I don't know how many hundreds of times, and if you didn't walk it out there fast enough, the lip would just go down. There was nothing to hold it up until it hit the truck.
"Q. So prior to your accident on January 16th, 1997, you knew, sir, didn't you, that the lip was designed to fall freely?
"A. Yeah."
It is mystifying how, in the face of this testimony, the majority "cannot conclude as a matter of law that Passante was fully aware of the danger of standing on the dock leveler lip" (majority op at 12).
IV
I think both the majority's holdings are wrong. But the more troubling of the two is the evisceration of Scarangella, which I fear will have real economic consequences. The predictability that was offered until today to manufacturers and distributors of equipment in this State is gone, and the result can only be an increase in cost - in the cost of liability insurance, and in the cost of safety features that buyers will no longer have the option to refuse. In much of this State, our economy struggles in the best of times, and these are not the best of times. Decisions like today's can only make things worse.
* * * * * * * * * * * * * * * * *
Judgment appealed from and order of the Appellate Division brought up for review modified, without costs, in accordance with the opinion herein and, as so modified, affirmed. Opinion by Judge Pigott. Chief Judge Lippman and Judges Ciparick and Jones
concur. Judge Smith dissents in an opinion in which Judges Graffeo and Read concur.
Decided May 5, 2009
Footnotes


Footnote 1: Supreme Court had dismissed the Passantes' complaint as against G & P, after the United States Bankruptcy Court for the Northern District of New York determined that the action against G & P was barred by reason of workers' compensation.

Lisa C. Green v William Penn Life Ins. Co. of New York



Robert D. Meade, for appellant.
Thomas Torto, for respondent.


SMITH, J.:
The Appellate Division held that an attempt to prove a death was caused by suicide must fail as a matter of law, unless suicide is the only reasonable finding permitted by the evidence. We hold that the Appellate Division misconstrued the presumption against suicide. It is a guide for the fact finder, not a rule that compels a result.
I
Alan Green died on February 20, 2002. His life was insured by defendant under a $500,000 policy issued December 3, 2001. The policy provided: "If the insured dies by suicide within two years from the Date of Issue of this contract, the only death benefit will be the sum of premiums paid." Plaintiff, Mr. Green's widow, made a claim for the face amount of the policy. Defendant rejected the claim on the ground that Mr. Green had died by suicide, and plaintiff brought this action. Considerable evidence supported defendant's contention that Mr. Green committed suicide. He was found lying on his bed, with an empty glass on the nightstand beside him and two empty bottles that had contained recently-prescribed pain medication in the nightstand drawer. He had been unemployed for months. He had seen a doctor on the day before his death; the doctor found him to be in good physical health, but noted that he had "suicidal thoughts." According to a police report, plaintiff said on the night of her husband's death that he had been depressed, and had overdosed on pain medication. She refused to permit an autopsy or a toxicological examination of his body, saying that such intrusions were forbidden by Jewish religious law, but she ordered the body cremated in violation of that religious prohibition.
There was also evidence supporting plaintiff's contention that suicide was not the cause of death. No suicide note was found. Mr. Green had no history of mental illness, and had not attempted suicide before. The doctor who noted his "suicidal thoughts" also quoted him as saying he was "[n]ot suicidal" and noted that he had "no plans" for suicide. There was no proof of how long the pill bottles had been empty; plaintiff offered testimony suggesting that she and her husband might have taken all the pills in normal doses over a period of weeks. Family members testified that Mr. Green had behaved normally shortly before his death; they described him as "upbeat" and "positive."
After a non-jury trial, Supreme Court found that Mr. Green had committed suicide, and dismissed the complaint. The Appellate Division, with two Justices dissenting, reversed and directed the entry of judgment for plaintiff (Green v William Penn Life Ins. Co. of N.Y., 48 AD3d 37 [1st Dept 2007]). In reversing, the Appellate Division did not exercise its factual review power, but held that "the evidence failed as a matter of law to overcome the presumption against suicide" (id. at 44). It reasoned that because "there are other reasonable conclusions that may be drawn from the evidence, aside from suicide," the "application of the law regarding the presumption against suicide necessitated a directed verdict in this case" (id. at 40). Defendant appeals as of right, pursuant to CPLR 5601 (a), and we now reverse.
II
We have repeatedly held that a presumption against suicide is applicable in litigation under life insurance policies (Schelberger v Eastern Sav. Bank, 60 NY2d 506 [1983]; Wellisch v John Hancock Mut. Life Ins. Co., 293 NY 178 [1944]; cf. Matter of Infante v Dignan, ___ NY3d ___, 2009 NY slip op ___ [decided today]). The presumption "springs from strong policy considerations as well as embodying natural probability" (Schelberger, 60 NY2d at 510), and we held in both Wellisch and Schelberger that the presumption justified leaving the issue of [*3]suicide to the jury, even where powerful evidence pointed to suicide as the cause of death.
We have never held, however, that the presumption against suicide requires rejection of a claim of suicide as a matter of law. As long as such a claim finds support in the evidence, a fact finder should decide it. The presumption, as we said in Wellisch, is "really a rule or guide for the jury in coming to a conclusion on the evidence" (293 NY at 184). Where the evidence leaves open two possible findings, it is "the jury's business to resolve the doubt" (id. at 185).
The Appellate Division's error here appears to arise from a jury charge we approved in Schelberger - a charge based on the New York Pattern Jury Instructions which then, as now, contained this language: "You may make a finding of suicide only if you are satisfied from the evidence, and taking into consideration the presumption against suicide, that no conclusion other than suicide may reasonably be drawn" (60 NY2d at 509; see PJI 1:63.2). This language should not be taken to mean that, where more than one conclusion is reasonably possible, suicide is excluded as a matter of law. If that were true, the issue of suicide could never be decided by a fact finder; a verdict would have to be directed against the party asserting suicide whenever the evidence was inconclusive, and in that party's favor when suicide was conclusively proved. The main point of both Wellisch and Schelberger is to the contrary: Except in rare cases, a claim of suicide presents a factual issue, not a legal one.
The instruction that a finding of suicide is permissible only when "no conclusion other than suicide may reasonably be drawn" is directed at jurors deciding facts, not at judges deciding the law; it is a way of impressing on jurors' minds that the presumption against suicide is a strong one - of telling them they should not find suicide unless the evidence shows suicide to be highly probable. Of course, the same is true of a judge sitting as fact-finder in a non-jury trial. Here, the evidence was strong enough to permit a finding of suicide, though not to require it.
Because there was evidence legally sufficient to support Supreme Court's decision, the Appellate Division erred in rejecting the finding of suicide as a matter of law. We remit the case to the Appellate Division, so that it can exercise its weight of the evidence review power, and consider any other issues necessary to resolve the case.
Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to that court for consideration of the facts and issues raised but not determined on the appeal to that court.
* * * * * * * * * * * * * * * * *
Order reversed, with costs, and case remitted to the Appellate Division, First Department, for consideration of the facts and issues raised but not determined on the appeal to that court. Opinion by Judge Smith. Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones concur.
148 Magnolia, LLC, et al. v Merrimack Mutual Fire Ins. Co.


Ahmuty Demers & McManus, Albertson (Brendan T.
Fitzpatrick of counsel), for appellant.
Faust Goetz Schenker & Blee LLP, New York (Lisa L.
Gokhulsingh of counsel), for respondent.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered July 23, 2008, which denied defendant-appellant Public Contracting NYC, Inc.'s motion for a protective order and to quash a subpoena served by defendant-respondent Merrimack Mutual Fire Insurance Company, unanimously affirmed, with costs.
The demanded documents consist of a file reflecting the results of an investigation performed by appellant's insurance carrier's agent regarding the underlying fire incident which resulted in the instant litigation. The burden of establishing any right to protection is on the party asserting it; the protection claimed must be narrowly construed; and its application must be consistent with the purposes of the underlying immunity (see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377 [1991]).
A trial court is vested with broad discretion regarding discovery, and its determination will not be disturbed absent a demonstrated abuse of that discretion (see Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 41 AD3d 362, 364 [2007], affd 11 NY3d 843 [2008]; Brooklyn Union Gas Co. v American Home Assur. Co., 23 AD3d 190 [2005]). Here the motion court properly determined that the documents were not protected because appellant failed to demonstrate that the investigation was conducted solely in anticipation of litigation. Such reports of insurance investigators or adjusters prepared during the processing of a claim are discoverable in the regular course of the insurance company's business (see Brooklyn Union Gas Co., 23 AD3d at 190; Roman Catholic Church of the Good Shepherd v Tempco Sys., 202 AD2d 257 [1994]).
We further note that appellant failed to properly affix to its motion papers an attorney's affirmation of good faith effort to resolve disclosure issues (see 22 NYCRR § 202.7 [a] [2]; Fanelli v Fanelli, 296 AD2d 373 [2002]). Moreover, the affirmation of good faith appellant claims to have filed is deficient because it does not "indicate the time, place and nature of the consultation and the issues discussed and any
resolutions" as required by the rule (see Amherst Synagogue v Schuele Paint Co., 30 AD3d 1055, 1057 [2006]).
We have considered appellant's remaining contentions and find them unavailing.
Progressive Insurance Company v John Lennon


Nesci-Keane PLLC, Hawthorne, N.Y. (Jason M. Bernheimer of
counsel), for appellant.
O'Connor, McGuinness, Conte, Doyle & Oleson, White Plains,
N.Y. (Montgomery L. Effinger of
counsel), for respondents John Lennon
and Geico Insurance Company.
Marks, O'Neill, O'Brien & Courtney, P.C., Elmsford, N.Y.
(Brian D. Meisner of counsel), for
respondent Christopher M. George.


DECISION & ORDER
In a subrogation action to recover insurance benefits alleged to have been paid on behalf of the plaintiff's insured, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Orange County (McGuirk, J.), dated March 28, 2008, as granted that branch of the motion of the defendants John Lennon and Geico Insurance Company which was for summary judgment dismissing the complaint insofar as asserted against them, and granted that branch of the cross motion of the defendants Christopher M. George and Unitrin Direct Auto Insurance which was for summary judgment dismissing the complaint insofar as asserted against the defendant Christopher M. George.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.
The decedent Alan H. Kenwood was killed, and his daughter Kristen Kenwood (hereinafter Kristen) was injured, when the decedent's motorcycle was struck by a vehicle operated by the defendant John Lennon, who swerved his vehicle in an attempt to avoid a vehicle operated by the defendant Christopher M. George. The decedent was covered by an insurance policy issued by the plaintiff, Lennon was insured by the defendant Geico Insurance Company (hereinafter Geico), and George was insured by the defendant Unitrin Direct Auto Insurance (hereinafter Unitrin). After the accident Geico tendered the limits of Lennon's policy to settle the wrongful death claim asserted against Lennon by the decedent's estate and the claim for bodily injury asserted against Lennon by Kristen. Unitrin denied liability on behalf of George.
The plaintiff subsequently commenced this action against Lennon, George, and their respective insurance companies, alleging that it had paid Kristen and the decedent's estate $200,000 in settlement of their respective claims. It alleged that it had "fronted" $75,000 on behalf of Geico, and paid $125,000 pursuant to its own policy. The defendants Lennon and Geico moved, and the defendants George and Unitrin cross-moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them, and the Supreme Court granted the motion and cross motion. We affirm.
"An insurer's subrogation rights accrue upon payment of the loss" (Winkelmann v Excelsior Ins. Co., 85 NY2d 577, 582; Allstate Inc. Co. v Stein, 1 NY3d 416, 441; Liberty Mut. Ins. Co. v Clark, 296 AD2d 442, 442-443). The defendants established their respective prima facie entitlement to summary judgment by demonstrating that the plaintiff commenced this action before its subrogation cause of action accrued (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Liberty Mut. Ins. Co. v Aetna Cas. & Sur. Co., 235 AD2d 523, 52). In opposition, the plaintiff failed to raise a triable issue of fact as to whether it had paid the claimed amounts (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).
Transportation Insurance Company v Simplicity, Inc.


Mitchell Pollack & Associates PLLC, Tarrytown, N.Y. (Karbal
Cohen Economou Silk Dunne, LLC [Roderick T. Dunne and Linda
J. Carwile], of counsel), for appellants.
D'Amato & Lynch, LLP, New York, N.Y. (Alfred A. D'Agostino,
Jr., and Megan M. Marchick of
counsel), for respondent Preferred Services
of NY, Ltd.


DECISION & ORDER
In an action, inter alia, for the rescission or reformation of certain contracts of insurance and to recover damages for breach of contract and negligent misrepresentation, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), entered September 13, 2007, as granted the motion of the defendant Simplicity, Inc., pursuant to CPLR 3211(a)(8) to dismiss the amended complaint insofar as asserted against it for lack of personal jurisdiction and, sua sponte, directed the dismissal of the amended complaint insofar as asserted against the defendant Preferred Services of NY, Ltd., pursuant to CPLR 3211(a)(10) on the ground that the defendant Simplicity, Inc., is a necessary party without which the action cannot proceed.
ORDERED that on the Court's own motion, the notice of appeal from so much of the order as, sua sponte, directed the dismissal of the amended complaint insofar as asserted against the defendant Preferred Services of NY, Ltd., is deemed an application for leave to appeal from that portion of the order and leave to appeal is granted (see CPLR 5701[c]); and it is further,
ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents Simplicity, Inc., and Preferred Services of NY, Ltd., and the motion of the defendant Simplicity, Inc., pursuant to CPLR 3211(a)(8) to dismiss the amended complaint insofar as asserted against it is denied.
Contrary to the determination of the Supreme Court, the defendant Simplicity, Inc. (hereinafter Simplicity), is amenable to jurisdiction in New York pursuant to CPLR 302(a)(1). The record demonstrates that Simplicity, a Pennsylvania corporation, engaged in a 12-year business relationship with the defendant Preferred Services of NY, Ltd. (hereinafter Preferred), a New York insurance broker, during which Simplicity transacted business within New York by engaging the services of Preferred to procure numerous insurance policies on its behalf and in accordance with its specifications, including the specific policies which are at issue in this action. Moreover, Simplicity engaged in frequent communication by telephone, e-mail, and fax transmissions with Preferred regarding the various policies. Under the circumstances of this case, Simplicity conducted sufficient purposeful activities in New York, which bore a substantial relationship to the subject matter of this action, so as to avail itself of the benefits and protections of New York's laws and, thus, was amenable to suit here under New York's long-arm jurisdiction statute (see Fischbarg v Doucet, 9 NY3d 375).
The Supreme Court's sua sponte determination directing the dismissal of the amended complaint insofar as asserted against Preferred was premised upon the dismissal of the amended complaint insofar as asserted against Simplicity. Accordingly, the denial of Simplicity's motion renders improper so much of the order appealed from as, sua sponte, directed the dismissal of the amended complaint insofar as asserted against Preferred.
MASTRO, J.P., SKELOS, CHAMBERS and HALL, JJ., concur.
JT Magen v. Hartford Fire Insurance Company

Defendants Hartford Fire Insurance Company and William Erath and Son appeal from an order of the Supreme Court, New York County (Marylin G. Diamond, J.), entered January 10, 2008, which denied their motion for summary judgment and granted plaintiff's cross motion for summary judgment declaring that Hartford's policy is primary to any other policy covering plaintiff, thus obligating Hartford to defend and indemnify plaintiff and nonparties IDA and Magen David Yeshiva in the underlying personal injury action.


Lawrence, Worden, Rainis & Bard, P.C., Melville
(Roger B. Lawrence and
Mary Beth Reilly of counsel),
for appellants.
Law Office of James J. Toomey, New York (Eric P.
Tosca of counsel), for
respondent.




RENWICK, J.
The issue before us is whether the prompt disclaimer requirement of the Insurance Law is triggered when an insurance carrier receives the notice of claim from another insurance carrier on behalf of a mutual insured asking that the insured be provided a defense and indemnity. In light of the apparent confusion on this issue, we take the opportunity to reiterate and clarify our holding in Bovis Lend Lease LMB, Inc. v Royal Surplus Lines Ins. Co. (27 AD3d 84 [2005]), which is dispositive.
Background
This insurance dispute arose out of injuries allegedly sustained by Richard Seifert when he tripped and fell on July 4, 2004, at a construction site owned by the New York City Industrial Development Agency (IDA) and Magen David Yeshiva. The owners hired plaintiff JT Magen as their construction manager. Plaintiff, in turn, hired defendant William Erath & Son as one of its subcontractors on the job. The injured worker was employed by Erath.
In the contract between plaintiff and Erath, the latter agreed to indemnify and hold the former harmless for personal injuries arising out of Erath's work. The contract also called for Erath to provide liability coverage of no less than $4 million, naming plaintiff, the Yeshiva and IDA as additional insureds. To fulfill its obligations, Erath secured such a policy from defendant Hartford. At the time of the accident, plaintiff was the named insured under a commercial liability policy issued by St. Paul Travelers Insurance (Travelers).
On May 7, 2005, worker Seifert commenced a personal injury action against various defendants, including plaintiff herein, the Yeshiva and IDA. Plaintiff notified its insurance carrier, Travelers, of the occurrence. By letter dated June 24, 2005, Travelers advised Hartford of the underlying action and requested that Hartford defend and indemnify plaintiff, IDA and the Yeshiva as additional insureds under the policy Hartford had issued to Erath. By letter dated August 10, 2005, Hartford contended that Travelers' tender letter had failed to include a copy of the summons and complaint in the underlying action. Although it claimed a copy of the summons and complaint had been included in its tender letter, Travelers nonetheless mailed Hartford another set of the pleadings on August 16, 2005. Fifty-one days later, by letter dated October 6, 2005, Hartford informed Travelers that it was disclaiming coverage on the ground that plaintiff, IDA and the Yeshiva had failed to comply with the policy requirement that they provide notice "as soon as practical" of any "occurrence"  that might result in damages covered under the policy, even if no demand has been made against them. A copy of the disclaimer letter was also sent to the additional insureds.
Plaintiff commenced this action against Hartford, among others, seeking a declaration that Hartford owes it, and nonparties IDA and the Yeshiva, a defense and indemnification with respect to the underlying personal injury action brought against them by the injured worker. Hartford then brought the instant summary judgment motion to dismiss the complaint on the ground that plaintiff had failed to comply with the insurance contract's notification provision. Plaintiff cross moved for a declaration that as an additional insured under the policy, it was entitled to a defense by Hartford, which, it argued, was estopped from disclaiming coverage pursuant to Insurance Law § 3420(d). Hartford countered that the provision does not apply as between insurers. Because Travelers' tender was made on behalf of plaintiff, the insured, Supreme Court found the case law making Insurance Law § 3420(d) inapplicable to insurers to be inapposite. Accordingly, the court granted plaintiff's cross motion, concluding that Hartford was precluded from disclaiming coverage on the ground of late notice.
Discussion
Under Insurance Law § 3420(d), an insurer wishing to disclaim liability or deny coverage for death or bodily injury must "give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage." A failure to give such prompt notice precludes an effective disclaimer or denial (Matter of Firemen's Fund Ins. Co. of Newark v Hopkins, 88 NY2d 836, 837 [1996]). However, an insurance carrier's duty to timely disclaim is not triggered until an insured satisfies a notice of claim provision in an insurance contract, because that provision is a condition precedent to coverage, and absent a valid excuse, the failure to satisfy the notice requirement vitiates the policy (Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 440 [1972]; Paramount Ins. Co. v RosedaleGardens, 293 AD2d 235, 239 [2002]; Town of Smithtown v National Union Fire Ins. Co., 191 AD2d 426, 427 [1993]).
We hold that the tender letter insurer Travelers wrote on behalf of plaintiff and others to insurance carrier Hartford — asking that their mutual insureds be provided with a defense and indemnity, as additional insureds under the policy issued to Erath — fulfills the policy's notice-of-claim requirements so as to trigger the insurer's obligation to issue a timely disclaimer pursuant to Insurance Law § 3420(d). Indeed, as Supreme Court properly pointed out, this is precisely the implication of our ruling in Bovis, where we held that only the tendering carrier did not get the benefit of § 3420(d) from a tendering letter it sent on behalf of its insured because that section does not apply to claims between insurers.
A somewhat detailed discussion of the case is required to determine adequately its applicability to the case at bar. In Bovis, Columbia University decided to build a new building and hired Bovis as its construction manager. Bovis, in turn, hired Millennium Masonry as one of its subcontractors on the job. Dennis Winter worked for Millennium. In September 2002, Winter was injured on the job when he fell from a height. Two months later, Winter commenced a personal injury action against Columbia and Bovis. Bovis was insured by National Union Fire Insurance Company, and Columbia was an additional insured under that policy. Royal Surplus Lines Insurance Company insured Millennium, and Bovis and Columbia were named as additional insureds under that policy.
On February 28, 2003, National wrote to Royal, tendering to Royal, on behalf of Bovis and Columbia, the notice of its obligations to defend and indemnify both Bovis and Columbia. While National awaited Royal's response to its tender, National hired attorneys to defend Bovis and Columbia. Sometime in late May, Royal wrote back to National, rejecting the tender. Royal's basis for this disclaimer was a "New Residential Work or Products" exclusion in its policy with Millennium. National received this disclaimer letter on May 21, 2003. A month earlier, National, Bovis, and Columbia had commenced an action against Royal, seeking a declaration that, pursuant to its policy covering Millennium, Royal was obligated to defend and indemnify Bovis and Columbia in the personal injury lawsuit. National also sought reimbursement of all defense fees it had incurred between the tender and the commencement of the lawsuit. 
Royal then moved for summary judgment in the declaratory judgment action, arguing that the "New Residential Work or Products" exclusion in its policy excused Royal from any obligation to defend or indemnify its own insured (Millennium) as well as the additional insureds (Bovis and Columbia). In opposition, National argued that Royal's disclaimer was untimely under Insurance Law § 3420(d). Therefore, National argued, Royal could not rely on the exclusion and was obligated to defend and indemnify both Bovis and Columbia. Royal countered that § 3420(d) only requires insurance companies to be timely in response to an insured's claim — not in response to a tender from another insurer; in other words, assuming arguendo that its disclaimer was late, it could still argue the applicability of the exclusion.
In the declaratory judgment action, National was not the only plaintiff; Bovis and Columbia were also plaintiffs, and must receive the protections of § 3420(d) as additional insureds under the Royal policy because they were also "prospective claimants." Royal was thus under a legal obligation to timely disclaim pursuant to the statute. The question then became whether Royal's disclaimer was timely. We held that Royal's delay of somewhere between 36 and 60 days in issuing the disclaimer, after having received "sufficient facts" to render a coverage decision, was unlawful. Therefore, Royal was responsible for the defense and indemnity of both Bovis and Columbia.
National, however, did not get the benefit of Insurance Law § 3420(d). In the declaratory judgment action, National was also a plaintiff. From the time it assumed the defense and indemnity of Bovis and Columbia in the personal injury action, it had accrued significant attorney's fees, and it wished to recoup those expenses. Because National —- unlike Bovis and Columbia — was not a prospective claimant to whom the benefits of  § 3420(d) were intended, we held it could not receive the automatic benefit of Royal's untimely disclaimer (27 AD3d at 87-88).[FN1]
The Bovis case is consistent with other New York decisions — including this Court's — that Insurance Law § 3420(d) does not apply to claims between insurers. For instance, prior to Bovis, courts held that § 3420(d) is inapplicable to a request for pro rata contribution between coinsurers (see e.g. Tops Mkts. v Maryland Cas., 267 AD2d 999, 1000 [1999]; Thomson v Power Auth of State of New York, 217 AD2d 495 [1995]). In Bovis, we extended this rule to an insurer's request for a full defense and indemnity. In doing so, however, we distinguished between an insurer's own claim for a defense and indemnity and a tender
letter by an insurer on behalf of its insured (27 AD3d at 87).[FN2]
More recently, in Bovis Lend Lease LMB Inc. v Garito Contr., Inc. (38 AD3d 260 [2007]), we were again faced with nearly identical facts — an insurance carrier's letter advising another insurance carrier of the underlying personal injury action instituted against a mutual insured and requesting that the recipient insurance carrier defend and indemnify their mutual insured. Again we found that the notice triggered the prompt disclaimer requirement with regard to the mutual insured. In Garito, plaintiff Bovis, a general contractor, sought a declaration that it should be covered as an additional insured under the policy issued by defendant Twin City to Bovis's subcontractor, Garito. In opposition to the plaintiff's motion for summary judgment, defendant Twin City did not submit any evidence that it timely disclaimed coverage on the basis of the alleged late notice provided. Instead, like the defendant here, Twin City argued that the prompt disclaimer requirement of § 3420(d) did not apply because the notice of claim had been effectuated by Bovis's insurance carrier, AIG. We rejected that argument, as we had done in the seminal Bovis decision, by upholding Supreme Court's declaration that Twin City must provide primary coverage to Bovis as an additional insured under the policy issued to Garito.
The dissent's attempt to remove this case from the ambit of Bovis and its progeny is not persuasive. For instance, the dissent argues that "Bovis lacks precedential value" because "[t]he case does not even mention, let alone discuss, the source of the notice by the insurer." However, in Bovis, this Court explicitly noted that "By letter dated February 28, 2003, National Union tendered the defense and indemnification of Bovis and Columbia to Royal" (27 AD3d at 86). Therefore, contrary to the dissent's allegations, Bovis involves the same factual scenario we face here, where an insurance carrier receives the notice of claim from another insurance carrier on behalf of a mutual insured, asking that the insured be provided a defense and indemnity.
Likewise, the dissent lacks any factual or legal basis in averring that the real party in interest in this case is Travelers. In fact, it is undisputed that Travelers' tender letter of June 24, 2005, was sent on behalf of plaintiff, IDA and the Yeshiva, seeking coverage for them with respect to the underlying personal injury action. Moreover, unlike Bovis, where one of the plaintiffs seeking declaratory relief was an insurer, the only plaintiff in this action is JT Magen, which seeks a defense and indemnification from Hartford. Travelers has not asserted any claim against Hartford for monetary relief covering the costs it incurred in the underlying personal injury action.
Finally, defendant Hartford has not made any attempt to justify its 45-to 50-day delay in disclaiming coverage of the underlying accident. Indeed, it has not even suggested that the letter tendering notice of the claim against plaintiff, IDA and the Yeshiva did not provide it with sufficient facts to disclaim coverage on any basis. Rather, misinterpreting the import of Bovis, Hartford argues that Insurance Law § 3420(d) is inapplicable since the tender letter was from an insurer and the statute does not require a prompt response to claims asserted by other insurers. We thus conclude that Hartford's disclaimer letter was untimely as a matter of law (see e.g. West 16th St. Tenants Corp. v Public Serv. Mut. Ins. Co., 290 AD2d 278 [2002], lv denied 98 NY2d 605 [2002] [30 days unreasonable as a matter of law where sole ground on which coverage was disclaimed was insured's delay in notifying insurer of occurrence]), and that as a result, Hartford is precluded under § 3420(d) from disclaiming coverage.
Accordingly, the order of the Supreme Court, New York County (Marylin G. Diamond, J.), entered January 10, 2008, which denied the motion of defendants Hartford and Erath for summary judgment and granted plaintiff's cross motion for summary judgment declaring that Hartford's policy is primary to any other policy covering plaintiff, thus obligating Hartford to defend and indemnify plaintiff and nonparties IDA and Magen David Yeshiva in the underlying personal injury action, should be affirmed, without costs.
All concur except Tom, J. who dissents in an Opinion.

TOM, J. (dissenting)
This insurance coverage dispute arose out of injuries allegedly sustained by defendant Richard Seifert in July 2004 while in the employ of defendant William Erath and Son. Plaintiff JT Magen, the construction manager for the project, was insured under a policy obtained from St. Paul Travelers. Erath was a subcontractor at the site under a contract that required it to indemnify and hold Magen harmless for any personal injury arising out of Erath's work. In connection with its contractual obligation, Erath obtained comprehensive general liability insurance from defendant Hartford Fire Insurance Company, naming Magen as an additional insured.
On May 9, 2005, Seifert and his wife commenced an action for personal injuries against various defendants, including Magen. Magen notified only its own insurance carrier, Travelers, of the occurrence. Two months later, Magen commenced a third-party action against Erath seeking contribution and indemnification under the contract. On June 24, 2005, some 11 months after the accident, Travelers tendered Magen's defense in the underlying action to Hartford and, on October 6, 2005, Hartford disclaimed coverage on the ground that Magen had failed to comply with the notice requirement contained in its policy. The provision requires the insured to provide notice of a claim or lawsuit or any "occurrence" that might result in damages covered under the policy "as soon as practicable."
Travelers commenced this declaratory judgment action against Hartford, as subrogee and in the name of Magen. Hartford then brought the instant motion seeking dismissal of the complaint on the ground that Magen had failed to comply with the contract's notification provision. Travelers cross-moved for a summary declaration that, as an additional insured under the policy, Magen was entitled to a defense by Hartford, which it argued was estopped from disclaiming coverage pursuant to Insurance Law § 3420(d). Hartford countered that the provision does not apply as between insurers.
Reasoning that Travelers' tender was made on behalf of Magen, the insured, Supreme Court found inapposite the case law making § 3420(d) inapplicable to insurers. Thus, the court granted Magen's cross motion, concluding that Hartford was precluded from disclaiming coverage on the ground of late notice.
With respect to policies of insurance, it is fundamental that notice is "a condition precedent to coverage" (White v City of New York, 81 NY2d 955, 957 [1993]). "Compliance with a proper notice-of-claim provision in an insurance policy is a condition precedent to all of an insurer's duty under the policy, including  the duty to defend" (Town of Smithtown v National Union Fire Ins. Co., 191 AD2d 426, 427 [1993]). As the Court of Appeals stated in Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005], revg 13 AD2d 227 [2004]),
"Where a policy of liability insurance requires that notice of an occurrence be given as soon as practicable,' such notice must be accorded the carrier within a reasonable period of time. The insured's failure to satisfy the notice requirement constitutes 'a failure to comply with a condition precedent which, as a matter of law, vitiates the contract'" (citations omitted).
This Court's decisions have made clear that notice received from a third party [FN1] does not fulfill the insurance policy's notice requirement and thus does not implicate the insurer's obligation to issue a timely disclaimer (Travelers Ins. Co. v Volmar Constr. Co., 300 AD2d 40 [2002]). "An insurer's obligation to cover its insured's loss is not triggered unless the insured gives timely notice of loss in accordance with the terms of the insurance contract" (Power Auth. of State of N.Y. v Westinghouse Elec. Corp., 117 AD2d 336, 339 [1986]). In Hernandez v American Tr. Ins. Co. (31 AD3d 343, 343 [2006]), we held that "since neither [the injured party] nor the insured ever notified the insurer of the accident, the insurer had no duty to disclaim liability, notwithstanding that it was made aware of the accident by counsel to one of the insured's codefendants in the personal injury action" (accord Webster v Mount Vernon Fire Ins. Co., 368 F3d 209, 215 [2d Cir 2004] ["an insurer's actual notice of a potential claim . . . does not relieve the insured of her notice obligations"]; American Mfrs. Mut. Ins. Co. v CMA Enters., 246 AD2d 373 [1998]; Heydt Contr. Corp. v American Home Assur. Co., 146 AD2d 497, 499 [1989], lv dismissed 74 NY2d 651 [1989]).
Bovis Lend Lease LMB v Royal Surplus Lines Ins. Co. (27 AD3d 84 [2005]), relied upon by Travelers and the majority, is uncompelling. Although late notice of the accident was likewise received from another insurer, the decision merely applies settled law that an untimely disclaimer issued by a carrier to the insured party is ineffective, as well as the established rule that Insurance Law § 3420(d), requiring an insurer to issue a timely notice of disclaimer, does not apply to a demand for contribution or indemnity made by another insurer (id. at 91), matters about which there is no disagreement. As to the question that divides us, the case does not even mention, let alone discuss, the source of the notice received by the insurer or its significance, and nothing in this Court's discussion of the third-party notice indicates that the issue of its effectiveness was before us (id. at 88)[FN2]. Bovis thus lacks precedential value.
It should be noted that Magen was afforded coverage both as the primary insured under its policy with Travelers and as an additional insured under the policy obtained by Erath from Hartford. Magen chose to avail itself of the coverage afforded by the Travelers policy and the contractual indemnity provided by the agreement with its subcontractor, timely notifying Travelers of the occurrence and commencing a third-party action against Erath for contribution and indemnification. The insured's interests were thus well protected (see Excelsior Ins. Co. v Antretter Contr. Corp., 262 AD2d 124, 127 [1999]), and Travelers, the real party in interest in this dispute, is merely being asked to honor its contractual obligation to defend and indemnify its insured. As Magen's subrogee, Travelers lacks any basis upon which to seek indemnification as a third-party beneficiary of either Magen's contract of insurance with Hartford or its subcontract with Erath. Finally, Travelers does not contend that anything contained in the insurance policy it issued to Magen obligates the insured to file a claim under any other policy of insurance covering the loss.
The effectiveness of Travelers' notice notwithstanding, it remains that Hartford was not notified of the underlying accident for more than 11 months. Accepting, for the sake of argument, the majority's proposition that notice was given on behalf of the insured, it was untimely because the delay was unreasonable as a matter of law (see Reg-Tru Equities, Inc. v Valley Forge Ins. Co., 44 AD3d 570 [2007], lv denied 10 NY3d 701 [2008])[FN3]. Nor is Magen's professed belief of nonliability reasonable under the circumstances, which afford no indication [*9]that, upon learning of the underlying injury, the insured conducted an inquiry into the accident and its cause so as to provide a basis for such belief (see id.).
Accordingly, the order should be reversed, the cross motion denied, Hartford's motion granted, and a declaration issued that Hartford is not obligated to defend or indemnify plaintiff or other parties in the underlying action.
Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered January 10, 2008, affirmed, without costs.
Opinion by Renwick, J. All concur except Tom, J. who dissents in an Opinion.
Gonzalez, P.J., Tom, Nardelli, Moskowitz, Renwick, JJ.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 14, 2009
CLERK
Footnotes


Footnote 1: This Court thus focused its attention on the basis for the Royal disclaimer, i.e. the applicability of the "New Residential Work or Products" exclusion, which, by its terms, applied to injuries arising out of Millennium's work "associated with new residential property." "New residential property" is defined in the exclusion as "apartments, single family and multi-family dwellings, condominiums, and townhouses." We found that the "Columbia University School and Faculty Residence" was a mixed-use building. By its terms, the exclusion applied to residential property and not to mixed use property. Therefore, Royal's disclaimer was invalid as a matter of law. National was thus entitled to recoup all of its incurred defense costs in the personal injury action from Royal.

Footnote 2: In fact, in Bovis, we specifically ruled that the disclaimer letter issued in response to an insurer's tender of a defense and indemnity on behalf of its two insureds was untimely under § 3420(d), and that the issue of whether the disclaimer letter was substantively valid thus need not be reached with respect to the two insureds.

Footnote 1: A third party is someone other than the insured, the injured person or another party having a claim for which the insured may be liable (Insurance Law § 3420[a][3]; see Hartford Acc. & Indem. Co. v J.J. Wicks, Inc., 104 AD2d 289, 293 [1984], appeal dismissed 65 NY2d 691 [1985], construing the predecessor statutue).

Footnote 2: Indeed, the majority concedes that the rule it purports to extract is merely "the implication of our ruling in Bovis."

Footnote 3: The majority anomalously posits that Travelers' notice was given on behalf of Magen for the purpose of fulfilling the insured's notice requirement and on behalf of Travelers for the purpose of exempting it from the selfsame notice requirement.

June v. Akhtar


Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck
(Elizabeth M. Hecht of counsel), for appellants.
Richard M. Altman, Bronx, for respondents.
Order, Supreme Court, Bronx County (Dianne T. Renwick, J.), entered on or about March 20, 2008, which denied defendants' motion for summary judgment dismissing the complaint for lack of a serious injury as required by Insurance Law § 5102(d), affirmed, without costs.
Defendants' examining physician noted limitations in range of motion with respect to plaintiff June's left knee and lumbar spine and with respect to plaintiff Smalls' right shoulder and cervical and lumbar spines, and plaintiffs' MRI results showed disc herniations and bulges, a tear to June's left meniscus, and a labral tear in Smalls' right shoulder. The cited impairments are consistent with plaintiffs' description that June hit his left knee against the dashboard, and that Smalls' upper body hit the steering wheel, when defendants' car collided with them, and the doctor's notes and the MRI results support a finding of serious injury within the meaning of Insurance Law § 5102 (see Guerrero v Bernstein, 57 AD3d 845 [2008]; Noriega v Sauerhaft, 5 AD3d 121, 122 [2004]).
In the circumstances presented, particularly the fact that plaintiffs were relatively young (June was 31 years old and Smalls 25 at the time of the accident), defendants' claim that the abnormal MRI findings and restricted ranges of motion were due to degenerative changes unrelated to the accident requires further elaboration to satisfy defendants' burden on the motion, to establish prima facie entitlement to summary judgment (see Coscia v 938 Trading Corp., 283 AD2d 538 [2001]).
All concur except McGuire, J. who dissents in a memorandum as follows:

McGUIRE, J. (dissenting) 
I disagree with the majority's conclusion that the order denying defendants' motion for summary judgment dismissing the complaint should be affirmed. Accordingly, I respectfully dissent.
Plaintiffs were the driver and passenger of a vehicle involved in a motor vehicle accident on November 28, 2004 with a vehicle owned and operated by defendants. Plaintiffs commenced this action against defendants seeking to recover damages; June alleged that he sustained injuries to his left knee and the cervical and lumbar portions of his spine, and Smalls alleged that he sustained injuries to his right shoulder and the cervical and lumbar portions of his spine. Defendants moved for summary judgment dismissing the complaint in its entirety, arguing that neither of the plaintiffs sustained a "serious injury" under Insurance Law § 5102(d). Notably, defendants asserted that both plaintiffs had preexisting conditions and that defendants' alleged negligence was not a proximate cause of the injuries of either of plaintiffs.
In support of their motion, defendants submitted the affirmation of a radiologist who reviewed MRI films of June's spine taken on December 18, 2004, approximately three weeks after the accident. The radiologist stated that
"Review of the lumbar spine MRI examination performed three weeks following the accident reveals desiccation at the L5-S1 intervertebral disc level. This is a drying out of disc material, a degenerative process, which could not have occurred in less than three [weeks] time and clearly predates the 11/28/04 accident. Bulging at this level is seen. Bulging is not a traumatic abnormality. It is degeneratively induced, related to ligamentous laxity. No osseous, ligamentous, or intervertebral disc abnormalities are seen attributable to the 11/28/2004 accident. No post-traumatic changes are seen."
With respect to the MRI films of June's cervical spine, the radiologist stated that the films showed "cervical straightening, a nonspecific finding, frequently related to patient position and comfort for the examination," and that "[n]o recent or post-traumatic changes" were present.
The radiologist also reviewed MRI films of June's left knee taken approximately one month after the accident. Her review of those films
"reveale[d] [a] grade II mucoid degenerative signal change in the posterior horn of the medial meniscus. As the name implies, this is a[n] intrasubstance, degenerative process without traumatic basis or causal relationship to the 11/28/04 accident. The chronicity is further evident by the associated out-pouching of the synovial lining, the parameniscal cyst which is indicative of a long term process."
An orthopedic surgeon examined June at defendants' behest. The surgeon opined, among other things, that June's spinal condition was the result of degenerative changes. The surgeon also opined that June did not suffer from any limitation in the range of motion in his cervical spine, had only minor limitations in the range of motion in his lumbar spine and an approximately 40% limitation in the range of motion in his left knee.
The radiologist also reviewed MRI films of Smalls' spine taken on December 18, 2004. With respect to Smalls' cervical spine, the radiologist averred that the MRI films
"reveale[d] desiccation at the C4-5 and C5-6 intervertebral disc levels. This is a drying out of disc material, a degenerative process, which could not have occurred in less than three [weeks] time. Bulging is seen at the C5-6 intervertebral disc level. Bulging is not a traumatic abnormality. It is related to ligamentous laxity. No osseous, ligamentous, or intervertebral disc abnormalities are seen attributable to the 11/28/2004 accident. No post-traumatic changes are seen."
With respect to the films of Smalls' lumbar spine, the radiologist concluded that "[n]o post-traumatic abnormalities [we]re seen" and that the lumbar spine structure was "entirely normal." After reviewing MRI films of Smalls' right shoulder taken approximately eight weeks after the accident, the radiologist stated that the shoulder was "entirely normal" and no "post-traumatic changes" were noticed.
The orthopedic surgeon also examined Smalls. The surgeon determined that Smalls had limitations in the range of motion in both the cervical and lumbar portions of his spine, and a limitation in the range of motion of his right shoulder. The surgeon opined that the limitations in the range of motion Smalls exhibited in his spine were "grossly out of context from what is seen by objective MRI evaluation and is more likely a non-organic finding"; the physician also noted that Smalls drove from Georgia to New York City for the evaluation and that such a trip "would be inconsistent with someone who has severe ongoing neck and lower back symptoms[, and that Smalls] is ... well-developed, quite muscular, and this is also inconsistent with a claim of significant disability or ongoing pain."
With respect to the limitation in the range of motion in Smalls' right shoulder, the surgeon stated that a similar limitation in Smalls' left shoulder, which was not injured in the accident, indicated that the limitations in the range of motion in the shoulders were based on Smalls' "poor effort." The surgeon also stated that no substantial injury to the right shoulder was caused by the accident — Smalls did not exhibit traditional symptoms of a shoulder injury immediately after the accident, the MRI films of his right shoulder taken approximately eight weeks after the accident did not indicate any significant injury to that shoulder, and a surgical procedure on that shoulder, performed approximately four months after the accident, revealed that his rotator cuff was intact and that the torn labrum that was repaired during the surgery was "an anatomic variant" that is considered to be congenital condition.
In opposition, June submitted the affirmation of a radiologist who reviewed the previously noted MRI films of June's spine and left knee. The radiologist concluded that June sustained a "Focal Central Herniation at L5-S1." With respect to June's left knee, the radiologist saw a "(a) Signal in the posterior horn of the Medial Meniscus, consistent with an intra meniscal tear; (b) Small popliteal cyst posteriorly which can be associated with Internal derangement of left knee." The radiologist stated that the disc herniation and knee injury "appear[ed] to be of non [sic] long-standing duration," and opined that those injuries were "traumatically related" to the accident.
June also submitted the affirmation of the orthopedic surgeon who operated on his left knee in 2005. The surgeon averred that June
"suffered a meniscal injury with resultant synovitis and scar tissue formation in the left knee when he was involved in a motor vehicle accident on November 28, 2004. The patient suffers from continued deconditioning, stiffness, and weakness of the left lower extremity. The current conditions and the initial injury are causally related to [the] motor vehicle accident..."
The surgeon also averred that, while the physician who authored the MRI report based on the films of June's left knee believed that June suffered a torn meniscus, June actually suffered a stretched meniscus.
Smalls submitted the affirmation of a radiologist who reviewed the MRI films of his right shoulder. The radiologist stated that Smalls sustained a labral tear and effusion that "appear to be of non [sic] long-standing duration ... [and] were traumatically related" to the accident. Smalls also submitted the affirmation of an orthopedic surgeon who operated on his right shoulder in 2005. The surgeon averred that Smalls sustained minor limitations in the range of motion in his right shoulder — 10 degrees of flexion, 15 degrees of abduction and 5 degrees of external rotation — due to a labral tear that was caused by the accident.
Defendants made a prima facie showing of entitlement to judgment as a matter of law dismissing June's claims related to his left knee and lumbar spine on the ground that any abnormalities to those portions of his body were not caused by the accident. Defendants adduced expert evidence that June experienced desiccation, i.e., drying out of disc material, at the L5-S1 intervertebral disc level, which defendants' radiologist classified as a degenerative process that could not have occurred in the three-week period between the accident and the date the MRI films of June's spine were taken. Defendants also adduced expert evidence that a degenerative condition was present in June's left knee. Thus, defendants' radiologist affirmed that the MRI of June's left knee, taken approximately one month after the accident, "reveale[d] [a] grade II mucoid degenerative signal change in the posterior horn of the medial meniscus. As the name implies, this is a intrasubstance, degenerative process without traumatic basis or causal relationship to the 11/28/04 accident. The chronicity is further evident by the associated out-pouching of the synovial lining, the parameniscal cyst which is indicative of a long term process." The burden therefore shifted to June to adduce evidence addressing defendants' evidence that degenerative conditions were present in his spine and left knee (see Valentin v Pomilla, 59 AD3d 184 [2009]; Ronda v Friendly Baptist Church, 52 AD3d 440, 441 [2008]; Becerril v Sol Cab Corp., 50 AD3d 261, 261-262 [2008]; see also Brewster v FTM Servo, Corp., 44 AD3d 351, 352 [2007]; Shinn v Catanzaro, 1 AD3d 195 [2003]).
In opposition, June failed to raise a triable issue of fact because neither of his experts addressed defendants' expert evidence that June suffered from degenerative conditions in his lumbar spine and left knee (see e.g. Valentin, supra; Eichinger v Jone Cab Corp., 55 AD3d 364 [2008]; Reyes v Esquilin, 54 AD3d 615 [2008]; Becerril, supra; see also Charley v Goss, 54 AD3d 569 [2008], affd 12 NY3d 750 [2009]; Lattan v Gretz Tr. Inc., 55 AD3d 449 [2008]; Page v Rain Hacking Corp., 52 AD3d 229 [2008]; Ronda, supra).
Defendants are also entitled to summary judgment dismissing June's claim with respect to alleged injuries to his cervical spine. Defendants adduced expert evidence that June did not sustain an injury to that portion of his spine as a result of the accident. However, neither of June's experts addressed the condition of his cervical spine.
Defendants also made a prima facie showing of entitlement to judgment as a matter of law dismissing Smalls' claim related to his right shoulder on the ground that any injuries to that shoulder were not caused by the accident. Defendants adduced expert evidence that the torn labrum in Smalls' right shoulder was "an anatomic variant" that is considered a congenital condition. In opposition, Smalls failed to raise a triable issue of fact. Neither of Smalls' experts addressed defendants' expert evidence that the torn labrum in his right shoulder was a congenital condition and was not caused by the accident (see e.g. Eichinger, supra; Reyes, supra; see also Page, supra). While Smalls' orthopedic surgeon did aver that the accident caused that tear, the surgeon did not address the points made by defendants' orthopedic surgeon. Specifically, defendants' expert stated that the location of the tear was not an area of the labrum that would typically tear as a result of a traumatic event and that the area of the tear was "consistent with a sub labral hole which is an anatomic variant and can typically be seen during a routine shoulder arthroscopy outside the context of any traumatic injury and is felt to be a congenital finding."
Smalls also failed to raise a triable issue of fact with respect to his claim based on injuries to his spine. In opposition to defendants' prima facie showing that no injuries to the cervical and lumbar portions of Smalls' spine were caused by the accident, neither of Smalls' experts offered an opinion regarding the condition of his spine.
The majority asserts that "[i]n the circumstances presented, particularly the fact that plaintiffs were relatively young (June was 31 years old and Smalls 25 at the time of the accident), defendants' claim that the abnormal MRI findings and restricted ranges of motion were due to degenerative changes unrelated to the accident requires further elaboration to satisfy defendants' burden on the motion, to establish a prima facie entitlement to summary judgment." Unsurprisingly, the majority cites no authority supporting its implicit conclusion that on account of these respective ages it is unlikely that plaintiffs suffered from degenerative changes [FN1]. Nor does it cite to anything in the record that supports that implicit conclusion. Of course, the members of this panel are not competent to opine about whether, the extent to which or the frequency with which individuals between the ages of 25 and 31 suffer from degenerative conditions. In opposition to defendants' expert evidence stating that both plaintiffs suffered from degenerative conditions, it was incumbent upon plaintiffs to offer expert medical evidence raising a triable issue of fact. They failed to do so, we cannot properly cure their failure and we should reverse.
In light of my conclusion that the complaint should be dismissed for the reasons stated above, I need not and do not pass on defendants' additional arguments. I note, however, that defendants make persuasive arguments that the 90/180 claims of
both plaintiffs should be dismissed, but the majority does not discuss those arguments.[FN2]

Footnote 1:Although the majority cites Coscia v 938 Trading Corp. (283 AD2d 538 [2001]), Coscia does not remotely support the majority's position. The decision, in its entirety, reads as follows: "The Supreme Court properly denied the defendants' motion for summary judgment. In support of their motion, the defendants submitted evidence that the plaintiff Phyllis Coscia was suffering from restrictions of motion in her lumbar spine. Furthermore, the defendants submitted contradictory proof as to whether the injured plaintiff's lumbar spine condition was caused by the subject accident or a degenerative disease (see, Julemis v Gates, 281 AD2d 396; DeVeglio v Oliveri, 277 AD2d 345). Accordingly, the defendants failed to establish a prima facie case that the injuries allegedly sustained by Phyllis Coscia were not serious within the meaning of Insurance Law § 5102(d) (see, Mariaca-Olmos v Mizrhy, 226 AD2d 437; Mendola v Demetres, 212 AD2d 515). Under these circumstances, it is not necessary to consider whether the plaintiffs' papers in opposition to the defendants' motion were sufficient to raise a triable issue of fact (see, Chaplin v Taylor, 273 AD2d 188; Mariaca-Olmos v Mizrhy, supra)."

Footnote 2:The majority's failure to grant defendants partial summary judgment dismissing Smalls' claims for injuries to his spine is inexplicable. In opposition to defendants' prima facie showing that no injuries to Smalls' spine were caused by the accident, Smalls submitted no expert evidence regarding the condition of his spine