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Coverage Pointers - Volume X, No. 3

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Dear Coverage Pointers Subscribers:

 

We had a lovely trip to Banff, Lake Louise and Jasper, Alberta.  Elk, moose, bear and caribou abound in the wild out there.  Walking on glaciers is a very neat thing to do.  If you haven't traveled to the Canadian Rockies, you haven't traveled.  We were attending the Federation of Defense & Corporate Counsel Annual meeting where I completed my rotation through the officer positions, as my term as Board Chair concluded at the FDCC Annual Meeting in Banff.  Rocky and Bullwinkle were there to send me off, as were Natasha and Boris.  We were happy to see them.

 

Pardon my lack of humor in this week's issue - I'm working on about four hours sleep last night!  Long trip home,

 

The courts are in their summer hiatus with very few decisions being released, particularly upstate.  However, we offer what is provided to us and you'll find a few very interesting decisions in this week's issue.

 

By some accounts, this is the luckiest day of the century.

 

Welcome to the 8/8/08 edition of Coverage Pointers.  It's also the opening day of the Olympics in China.  Opening ceremonies take place beginning at 8:08 PM local time.  You may wonder why the date and time were so selected.

 

The number eight is one of the luckiest in the Chinese culture.  The word for eight in Chinese pronounced ba is similar to the Chinese word for prospers which is pronounced fa.

There is also a resemblance between two digits, "88," and the shuang xi, meaning double joy.

All over the country, people are planning 8/8/08 weddings.  In San Francisco, within minutes after the City Clerk's office began taking reservations for marriage ceremonies, the 8/8/08 date was booked solid with 128 weddings planned.

It's also the 100th birthday of the late United Nations Ambassador and Supreme Court Justice Arthur Goldberg, for those who keep track of things like that.  Lucky guy he was, being born on August 8, 1908 . And I know you probably knew this, but on that same day, 100 years ago, August 8, 1908 - Wilbur Wright makes his first flight in Europe at Champs d'Auvours, France

From Audrey, the Queen of No Fault, these inspiring words:

My fingers have healed from the typing from last edition and the courts and the arbitration tribunal seems to be taking a brief vacation.  The decisions in this edition are mainly in the arbitration forum and address causal relationship of the injury to the accident. 

 

One decision briefly discusses an interesting issue, at least to me, regarding whether the insurer is only responsible for that portion of the aggravation to a pre-existing injury.  The insurance regulation at 11 NYCRR section 65-3.14(a) provides that an insurer is responsible for the payment of benefits for those losses that are caused by an accident which also includes those losses causes by the aggravation of a pre-existing injury.  This provision has been interpreted to mean that the insurer, if faced with an aggravation, is only responsible for that percentage of the loss that was aggravated due to the accident.  This is a difficult thing to assess medically and particularly so if the applicant was not actively treating for the condition before the accident.  Yet, in this decision reported the arbitrator did assign a percentage to the pre-existing condition and to the aggravation causally related to the accident.  It is not clear from the decision where the percentage came from.  In other words it was not clear if that percentage was taken from the IME report (which is most likely the case) or the treating physicians' records.

 

If you are interested in this topic and the considerations when faced with a pre-existing or subsequent injury feel free to contact me.  We offer training in this area and will customize it to your needs.  In addition, while this program is in the distance future - November - I wanted to bring it to your attention now, NBI is presenting in Buffalo an entire program on no-fault.  I don't mean no-fault serious injury threshold either.  I am participating in the program and there will be participation by the plaintiff's bar as well.  This is anticipated to be a great program for the upstate practitioners.  If you are interested and would like some more information feel free to email me at [email protected]

 

Audrey Seeley

[email protected]

 

Earl Cantwell's Earl's Pearls column will enlighten you about the mysterious Request for Admission (or Notice to Admit) and its use in litigation.

 

This issue presents a few interesting cases, including those on our favorite topic, late notice. 

 

STAROSIELEC'S SERIOUS (INJURY) SIDE OF NEW YORK NO FAULT

Mark Starosielec
[email protected]

 

  • Affirmed: Order Granting SJ is Upheld as Plaintiff Failed to Raise a Triable Issue of Fact
  • All Together Now: Affirm, Relate, Swear and Test Or Else! 

AUDREY'S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

 

Arbitration
 

  • Insurer Responsible for Percentage of Injury Due to Aggravation of Pre-Existing Condition
  • Wages Not Owed Since Arthritic Condition Pre-Existing
  • Defendant's Failure to Present Proof of Timely Mailing Fatal to Defense 

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper

[email protected]

 

  • Plaintiff's complaints against counsel fail without causation
  • A Fall is not a Fall under Labor Law § 240(1), When Plaintiff was Standing on the Ground
  • Summary Judgment Defeated where Plaintiff's Expert Opined that State knew, or should have known, about Allegedly Defective Condition

Training:

 

Audrey, Steve, Mark and I have been traveling hither and yon providing, gratis of course, training programs for insurance claims professionals.  We will custom-build a training program for your staff.  Here are some suggested topics:

 

There'll be more time for visits to your office for training programs.  Here are a few suggested topics.  Let us know how we can help:

 

      1. Primary and Excess Insurance - Rights & Responsibilities
      2. SUM Claims Handling
      3. Preventing Bad Faith Claims - First Party Cases
      4. Preventing Bad Faith Claims - Liability Cases
      5. New Rules Regarding Notice, Developing Proof of Prejudice and a Strategic to Avoiding Direct Actions
      6. The Cooperation Clause - How to Handle
      7. NY Disclaimer Letter - Nuts & Bolts: How to Create and Write and Send a Disclaimer Letter, and How Not To. (The Reservation of Right Letter Myth)
      8. No- Fault Arbitrations and Appeals: Mock Arbitrations, Preserving the Record, Taking an Appeal 
      9. No Fault Regs - Knowledge is Power
      10. An Auto Liability Policy Primer
      11. A CGL Policy Primer
      12. A Homeowners Liability Policy Primer
      13. EUO's Under First Party Policies
      14. How to Resolve Coverage Disputes:  DJ Actions, Insurance Law Section 3420 Direct Actions (Choice, Strategy and Timing)
      15. Insured Selected Counsel: When is it Necessary and How to Avoid it? 
      16. Mediation and the Role of the Mediator
      17. ADR and How to Get to "Yes".
      18. The Internet as a Tool for the Claims Representative
      19. Construction Cases - The Interplay Between Indemnity Agreements and Insurance Policies
      20. Other Insurance, Additional Insureds and Priority of Coverage

 

We welcome over 20 new subscribers this week and look forward to hearing from you.

 

All the best.

 

Dan

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Hurwitz & Fine, P.C. is a full-service law firm
providing legal services throughout the State of New York

Newsletter Editor

Dan D. Kohane
[email protected]

 

Insurance Coverage Team

Dan D. Kohane, Team Leader
[email protected]

Michael F. Perley
Audrey A. Seeley
Steven E. Peiper

Mark Starosielec

Fire, First-Party and Subrogation Team
Andrea Schillaci, Team Leader
a[email protected]

Jody E. Briandi
Steven E. Peiper

NO-FAULT/UM/SUM TEAM
Audrey A. Seeley, Team Leader
[email protected]
Tasha Dandridge

APPELLATE TEAM
Jody E. Briandi, Team Leader
[email protected]
 Scott M. Duquin

Index to Special Columns

 

Starosielec’s Serious Side of “Serious Injury”

 Audrey’s Angles on No Fault

Peiper on Property
Earl’s Pearls

Across Borders

 

8/5/08              In the Matter of Interboro Insurance Company v. Coronel

Appellate Division, Second Department
Rehabilitation Order Delays Requirement to Seek Stay of Uninsured Motorist Arbitration; Lack of Physical Contact between Hit-and-Run Car and Claimants’ Requires Permanent Stay

In March 2001, Patricia Coronel was driving Manuel Coronel’s car. Nancy M, Nancy G, and Sandra were passengers in that car, the vehicle insured by Interboro. The car full of Coronels rear-ended a vehicle owned by Angelo and operated by Katherine.  Both drivers, Patricia and Katherine, indicated to a police officer that Katherine’s vehicle was cut off by another vehicle which fled the scene (the “uninsured vehicle”) which led to Katherine’s car to stop short. Patricia claims that she was forced to stop short, causing collision with Katherine’s car.  There was no physical contact with the “uninsured vehicle.”  

When the demand for uninsured motorists (UM) arbitration was filed against Interboro, it was in rehabilitation and proceedings against it were stayed. When the stay was lifted, Interboro filed an application for a permanent stay (within the statutory 20-day period).  The court found that the proceeding to permanently stay was timely filed.

A claim for UM benefits in the situation where there is a hit-and-run vehicle involved requires a demonstration of physical contact between the vehicle that flees the scene and the one in which the claimants are located. That there was contact between Patricia’s and Katherine’s is of no moment.  There being no proof of physical contact with the “uninsured vehicle,” the arbitration is permanently stayed and the claimant it not entitled to recover UM benefits.

7/29/08            Cicero v. Great American Insurance Company
Appellate Division, First Department

Where Defendant Mislead Plaintiff as to Existence of Excess Coverage, Late Notice to Excess Carrier was Not Late

Plaintiff sued insured for personal injuries.  In response to discovery demands, insured’s counsel advised of existence of primary policy. Almost four years later, on the eve of trial, the insured’s broker notified the primary carrier that the insured had $25 million in excess coverage with Great American Insurance Company. Counsel for Zurich American then notified counsel for plaintiffs, who promptly gave notice of their claim, on January 9, 2004.  The court found that this notice was timely.  While the conduct of the injured party in seeking coverage information is usually at the forefront, the fact that the claimant was mislead makes it notice timely.

 

7/29/08            Cicero v. Great American Insurance Company (again)
Appellate Division, First Department

Late Notice by Insured Does Not Mean Late Notice by Injured Party

In another decision arising out of the same conflict as the previous case,  Great American sought relief.  It has disclaimed coverage because of late notice of the accident coming from its insured. 

 

The insured, Western Beef, had commenced a declaratory judgment action against Great American and the broker who sold it the excess policy.  The underlying plaintiff and Western Beef settled the lawsuit between then and the plaintiff took over the prosecution of the declaratory judgment action.  It also commenced this direct action against Great American to recover the portion of the settlement exceeding the primary policy limit. A motion for summary judgment in the declaratory judgment action resulted in a declaration that Great American was under no obligation to satisfy the judgment against Western Beef in the underlying action, the court holding that timely notice by Western Beef to its insurance broker did not constitute timely notice to Great American because the evidence failed to show that the broker was Great American's agent as well as Western Beef's.

Great American then sought to dismiss the direct action alleging that its win in the declaratory judgment action precluded the direct action based on the same late notice.  The court found that the issues in the declaratory judgment action and the direct action were different.  In the declaratory judgment action, the important issue was whether the notice given by Western Beef to the agent was notice to the insurer.  In this action, the issue is whether the plaintiff’s notice was timely; e.g., whether or not plaintiffs did not satisfied their statutory obligation to provide notice as soon as reasonably possible "in light of the opportunities to do so afforded [them] under the circumstances.
Editor’s Note:  Had Great American brought the injured plaintiffs into the first declaratory judgment action, it may have been successful in defeating coverage based on late notice.  Having failed to do so, and having not litigated the timeliness of the injured party’s notice, the decision in the earlier DJ action cannot be binding on underlying plaintiffs.  Bring them all into the party.

STAROSIELEC’S SERIOUS (INJURY) SIDE OF NEW YORK NO FAULT

Mark Starosielec
[email protected]

 

8/5/08              Smeja v. Fuentes

Appellate Division, Second Department

Affirmed: Order Granting SJ is Upheld as Plaintiff Failed to Raise a Triable Issue of Fact

Here, plaintiff unsuccessfully appealed a lower court order which granted the defendants' motion for summary judgment dismissing the complaint. The Appellate Division held the lower court correctly concluded that the defendants met their initial prima facie showing. In opposition, the plaintiff failed to raise a triable issue of fact. The affirmed report of Dr. Edward Firouztale failed to raise a triable issue of fact because while Dr. Firouztale noted that the plaintiff showed "decreased" range of motion in the cervical spine, he failed to adequately quantify or qualify those restrictions.  The MRI reports of Dr. Mark Lodespoto and Dr. Seth Mankes were not competent evidence since they were unaffirmed. Other  reports that were properly relied upon by the plaintiff failed to raise a triable issue of fact. In a report dated May 8, 2002, while Dr. Holzer set forth cervical spine ranges of motion concerning the plaintiff, he failed to compare those findings to what is normal. The report dated March 12, 2003, actually showed that on that date, the plaintiff had full range of motion in her cervical spine.  

 

7/29/08            Budhram v. Ogunmoyin

Appellate Division, Second Department

All Together Now: Affirm, Relate, Swear and Test Or Else!

In another example of plaintiff’s counsel’s sloppily opposing a motion for summary judgment, the Appellate Division reversed  a lower court order which had denied defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury. On appeal, the defendants established their prima facie showing that the plaintiff did not sustain a serious injury.

 

In opposition, the plaintiff failed to raise a triable issue of fact especially regarding whether she sustained a serious injury to her cervical and lumbar spine under the significant limitation of use SI category. The reports of various doctors were without probative value since they were unaffirmed. Similarly, the affirmation of another doctor was insufficient in that he failed to set forth the objective tests he performed in arriving at that conclusion that plaintiff had a decreased ROM in her neck. He also clearly relied on the unsworn MRI reports of others.

 

AUDREY’S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

 

The reporting of No-Fault arbitration awards is not at the same level of reported case law, meaning there is no one source to turn to for comprehensive research of arbitration awards.  We encourage you to submit to us, in a PDF format, at [email protected], any recent no-fault arbitration awards, especially Master Arbitration awards, that address interesting no-fault issues.

 

Arbitration

 

8/4/08  In the Matter of the Arbitration Between Applicant and Respondent

Arbitrator Mary Anne Theiss (Onondaga County)

Insurer Responsible for Percentage of Injury Due to Aggravation of Pre-Existing Condition

The Applicant, eligible injured person (“Applicant”), was involved in a September 13, 2004, rear-end motor vehicle accident resulting in lumbar and cervical spine disc herniations.  The Applicant underwent cervical spine surgery which consisted of the insertion of a surgical plate.  The Applicant contended that due to the pressure on his esophagus, which was caused by the surgical plate, he had dysphasia and reflux esophagitis.  Accordingly, the Applicant had to undergo a procedure to dilate the esophagus.

 

The insurer denied the bill for the dilation procedure based upon a peer review by Dr. William Ross which concluded that this procedure was not medically necessary.  The assigned arbitrator determined that this procedure was 75% causally related to the motor vehicle accident and 25% causally related to a pre-existing condition.  Accordingly, the insurer was only responsible for 75% of the bill.

 

The Applicant also sought payment of medical bills resulting from a fractured metatarsal and his foot.  The Applicant claimed that his leg gave out due to the lumbar spine disc herniations sustained in the motor vehicle accident.  Yet, the assigned arbitrator pointed out in her decisions that the records submitted to her indicated that the Applicant hit  his foot against a pole while attempting to exist his vehicle.  Accordingly, that portion of the Applicant’s claim was denied as not being causally related to the motor vehicle accident (I wonder if he attempted to make a separate claim for no-fault benefits due to that incident?).

 

7/31/08            In the Matter of the Arbitration Between Applicant and Respondent

Arbitrator Thomas J. McCorry (Erie County)

Wages Not Owed Since Arthritic Condition Pre-Existing.

The Applicant, eligible injured person (“Applicant”), sought lost wages as a result of a March 9, 2007 motor vehicle accident, when she purportedly sustained injury to her left arm and ribs.  The Applicant did not seek medical treatment until a week after the accident.  Thereafter, the Applicant treated with a chiropractor and a pain management specialist.  The Applicant underwent two independent medical examinations (“IME”).  The most recent IME revealed that the pain management specialist had a difficult time performing an examination as the Applicant was wearing a glove and sling on her left hand and left arm.

 

The assigned arbitrator noted that at least one of the examining physicians characterized the Applicant’s complaints as “reflecting symptom magnification.”  The arbitrator also indicated that seeing the Applicant wear the glove and sling at the hearing suggesting symptom magnification.

 

The arbitrator upheld the insurer’s denial for lost wages on the basis of the pain management IME.  The arbitrator found that physician’s opinion that the Applicant had significant degenerative cervical spine arthritis was not related to the motor vehicle accident.

 

Litigation

 

7/28/08            Gotham Acupuncture, P.C. a/a/o Carmen Torres v. Country Wide Ins. Co.

Appellate Term, First Department

Defendant’s Failure to Present Proof of Timely Mailing Fatal to Defense.

The plaintiff’s summary judgment motion was granted as the defendant failed to submit evidence that it timely mailed the denial of claim form within 30 days.  Accordingly, the defendant was precluded from asserting most of its statutory exclusion defenses which included lack of medical necessity and excessive fees.

 

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper

[email protected]

 

Another issue, another batch of excuses as to why I have no exciting decisions to bring you from the world of first party coverage.  However, at the very least, there is as up tick in the potpourri this week.  Enjoy!

 

08/05/08          Wray v Mallilo & Grossman

Appellate Division, Second Department

Plaintiff’s Complaints against Counsel Fail without Causation

In this case, an unhappy plaintiff sought revenge in a legal malpractice case against his former attorneys.  However, prior to the instant proceedings, the trial court in the underlying matter ruled that plaintiff was unable to prevail upon his Labor Law § 240(1), Labor Law § 241(6) and Labor Law § 200 allegations.  As it was determined that plaintiff’s tort case was doomed, the trial court in the subsequent malpractice action dismissed plaintiff’s claims for failing to establish that any malpractice on the part of his attorneys resulted in the loss of damages.

 

07/29/08          Wynne v. B. Anthony Construction Corp.

Appellate Division, Second Department

A Fall is not a Fall under Labor Law § 240(1), When Plaintiff was Standing on the Ground

Plaintiff commenced this action against defendant alleging, among other things, injuries as result of a violation of Labor Law § 240(1).  According the facts provided in the opinion, plaintiff sustained injury when the dump truck he was operating broke through the roof of cistern, and fell approximately seven feet.  Holding that the plaintiff was not exposed to an elevated risk that safety devices would have protected against, the Second Department affirmed the trial court’s grant of summary judgment to defendant.

 

In addition, the Second Department also affirmed the trial court’s grant of defendant’s motion for summary judgment on Labor Law § 200.  In so holding, the Court confirmed that the defendant, as general contactor on the scene, did not have actual or constructive notice of the condition which is required for Labor Law § 200 liability to attach.

 

07/29/08          Wynne v. State of New York

Appellate Division, Second Department

Summary Judgment Defeated where Plaintiff’s Expert Opined that State knew, or should have known, about Allegedly Defective Condition
Although plaintiff’s attempts at Labor Law § 200 failed against the general contractor (see above), in the companion action before the Court of Claims, plaintiff’s expert was able to defeat the State’s motion by raising a question of fact.  Again, plaintiff sustained injury when the dump truck he was operating broke through the roof of cistern and fell several feet.  Prior to the commencement of work at the parcel, the State (as owner of the property) conducted several surveys of the area (including environmental testing, aerial photography and soil testing).  Plaintiff argued that if these tests had been diligently performed, the State would have uncovered the potentially unsafe condition prior to the incident.  The Court of Claims agreed and found a question of fact, as did the Second Department which affirmed the Court of Claims’ denial.

 

 

EARL’S PEARLS

Earl K. Cantwell, II

[email protected]

 

Efficacy of the Notice to Admit

 

            Let’s face it:  lawyers don’t like to admit anything, certainly nothing damaging to their client or case.  If you ask a lawyer to admit that the sun rose this morning, you are likely to get a ten-page response asking you to define what you mean by “rose,” requesting a definition of the time of “morning,” and otherwise stating that the request is irrelevant, overly broad, burdensome, and not reasonably calculated to lead to the discovery of admissible evidence.  That is why the use of the Notice to Admit under CPLR 3123, or its counterpart in Rule 36 of the Federal Rules of Civil Procedure, can prove to be both effective and entertaining.

 

            Under the CPLR, a Notice to Admit can be served at any time after service of the Answer, even up to 20 days before trial, which makes it one of the few discovery devices which can be used post-Note of Issue.  The Notice to Admit can request admissions as to the genuineness of papers or documents, the correctness of any photographs, or “the truth of any matters of fact set forth in the request.” 

 

            The time for responding to a Notice to Admit is relatively short:  each of the matters on which an admission is requested shall be deemed admitted unless a response is forthcoming within 20 days after service.  The penalty for not timely responding is not simply making a discovery motion, but having the matters “deemed admitted.”

 

            Moreover, not just “any response” will do.  In denying any request for admission, the respondent must present a sworn statement of a party denying the matters as to which the admission was requested, or setting forth in detail reasons why the party cannot admit or deny those matters.  Note that the response requires a statement sworn under oath, not simply a pleading or discovery response signed by counsel, and it must be by “the party to whom the request is “directed”  -- again, not just counsel. 

 

            Under CPLR 3123(c), the penalty for an unreasonable denial in response to a Notice to Admit is an order requiring the respondent to pay reasonable expenses incurred in proving the proposition, including reasonable attorneys’ fees.  This can be a valid sanction in and of itself.  However, another possible penalty is cross-examination of a party with their bizarre and convoluted denial to an obvious admission when they are on the witness stand, to impress upon the jury that the party is being unreasonable, uncooperative and hiding behind a façade of legalese.

 

            So, if you want the other side to admit that the sun rose at 6:15 a.m. this morning, send them a Notice to Admit and they will have to respond, and if they do not, it will be deemed proven that the sun indeed rose this morning.

 

ACROSS BORDERS

 

Visit the Hot Cases section of the Federation of Defense & Corporate Counsel website, www.thefederation.org. Dan Kohane served as the FDCC President from 2006 – 2007 and was a founder of its website.

 

7/25/08            Bucca v. The Hartford Ins. Co.
Superior Court of New Jersey, Appellate Division

Insurer Satisfied Defense Obligations By Providing Defense Until All Covered Claims Were Dismissed
 
Hartford issued a workers’ compensation policy to plaintiff’s employer, TSD. After receiving TSD’s demand that Hartford defend and indemnify it against plaintiff’s complaint, Hartford sent a reservation of rights letter, acknowledging there may be coverage for the claims of intentional harassment and discrimination and constructive discharge. Hartford further noted that counts 3 and 4 for declaratory relief and entitlement to wages would not be covered. Hartford allowed TSD to choose its own counsel to defend the case and agreed to reimburse TSD for counsel fees related to the defense. Counsel for the defense was ultimately successful in getting the trial court to dismiss the first two counts of the complaint. Thereafter, Hartford advised TSD of that the complaint no longer contained any claims which would be covered under the policies. As such, Hartford asserted that its coverage obligations had been completely satisfied, that it was no longer obligated to fund the defense costs and it was not obligated to indemnify TSD under the policy. TSD thereafter assigned its rights against the policy to the plaintiff who filed a complaint seeking a declaratory judgment against Hartford. Plaintiff appealed from an order granting Hartford’s motion to dismiss the complaint, and the appellate division affirmed, noting that Hartford undertook the cost of defending plaintiff’s action against the employer until, in its view, all the covered claims were dismissed. At that juncture, it gave notice that its obligations had been satisfied and its defense under the policy would cease.

Submitted by: Bruce D. Celebrezze & Vanessa L. O'Brien (Sedgwick, Detert, Moran & Arnold LLP)

 

7/25/08            First American Title Ins. Co. v. Action Acquisitions, LLC
Arizona Supreme Court

Title Insurer Properly Disclaimed Coverage Due to “Created Risk” Exception
This case involves title insurance for a home purchased at a sheriff's sale. After the purchasers obtained the policy, the Superior Court set aside the sale because the purchasers had paid a grossly inadequate price ($3,500). The purchasers then made a claim for insurance coverage. The policy excluded coverage for loss resulting from risks “created, allowed, or agreed to by” the insureds. The purchasers argued on appeal that this exclusion was ambiguous and could not support a denial of coverage because the title insurer knew of the $3,500 bid. The Arizona Supreme Court concluded that the exclusion was not ambiguous and that it applied whenever the insured intended the act causing the defect, not only when the insured intended the defect or when the insured engaged in misconduct. By bidding $3,500, the purchasers created the risk that resulted in the loss. Their bid was an intentional, affirmative act that resulted in the sale being set aside. If the exclusion did not apply, the policy would effectively guarantee the purchasers a windfall profit of possibly more than $200,000, even though they paid only $3,500 and later lost title for paying a grossly inadequate price. The purchasers would benefit as if they had actually sold the property for market value. Although insurers and purchasers conceivably could agree to title insurance affording such coverage, it is not consistent with the “created risk” exception, the other policy language, or the general nature of title insurance. As such, the Supreme Court agreed with the trial court that the “created” risk exclusion applied to preclude coverage.

Submitted by: Bruce D. Celebrezze & Vanessa L. O'Brien (Sedgwick, Detert, Moran & Arnold LLP)

 

7/25/08            Young v. Midwest Family Mutual Insurance Company
Nebraska Supreme Court

Pro Se Attorney May Not Recover Fees In Successful Action On An Insurance Policy
The insured Plaintiffs sued their insurer based on a dispute over coverage for hail damage provided by their homeowners’ policy. The Plaintiffs claimed damages of $27,500, while the insurer estimated their damages as $790. After trial, the jury awarded Plaintiffs $940. The Plaintiffs then moved for attorney fees under Nebraska’s statute authorizing attorney fees to successful insureds in actions on their insurance policies. Although the Plaintiffs appeared pro se, one of the Plaintiffs was a licensed attorney. The court held that, just like non-lawyer pro se litigants, lawyers who represent themselves could not obtain attorney fees for their work in a successful action against their insurer under their insurance policy.

Submitted by: John P. Craver and Lucas Lorenz (White and Steele, P.C.)

 

 

REPORTED DECISIONS

 

Cicero v. Great American Insurance Company

 

Russo, Keane & Toner, LLP, New York (Thomas F. Keane of
counsel), for appellants.
London Fischer LLP, New York (Daniel Zemann, Jr. of
counsel), for respondents.

 

Order, Supreme Court, New York County (Joan A. Madden, J.), entered August 2, 2007, which, in an action pursuant to Insurance Law § 3420 against an excess insurer and its affiliates, denied plaintiffs' motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted, and plaintiffs awarded judgment in their favor and against defendants in the sum of $1,501,211.00 plus interest and costs. The Clerk is directed to enter judgment with 9% interest from December 8, 2004, the date of entry of judgment against Western Beef, Inc. in the underlying personal injury action.

In plaintiffs' underlying personal injury action against Western Beef Inc. for serious injuries suffered by Lydia Cicero on January 20, 1998, when she slipped and fell in its supermarket, a preliminary conference order directed Western Beef to respond to plaintiffs' combined demands, dated May 27, 1999, and disclose "the existence and contents of any insurance agreement as described in CPLR § 3101(f)" (emphasis added). On January 21, 2000, counsel for Zurich American Insurance Group, Western Beef's insurer, responded that, at the time of plaintiff's accident, Western Beef was insured by Zurich American Insurance Group under a policy that had a single limit coverage of $1,000,000. Almost four years later, on the eve of trial, Western Beef's broker notified Zurich American that Western Beef had $25 million in excess coverage with Great American Insurance Company. Counsel for Zurich American then notified counsel for plaintiffs, who promptly gave notice of their claim, on January 9, 2004.

While, ordinarily, whether plaintiffs acted diligently in ascertaining the identity of Western Beef's insurer or insurers would present an issue of fact, under these circumstances, where Western Beef affirmatively misled plaintiffs as to even the existence, let alone the identity, of its excess insurer and failed to cooperate with its primary insurer, Zurich American, in the latter's attempts to ascertain whether there was any excess coverage, plaintiffs' efforts were sufficient and the notice given by them shortly after they learned of the excess coverage and American National's identity was timely as to them.

Cicero v. Great American Insurance Company


London Fischer LLP, New York (Daniel Zemann, Jr. of
counsel), for appellants.
Russo, Keane & Toner, LLP, New York (Thomas F. Keane of
counsel), for respondents.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered January 11, 2008, which, in an action pursuant to Insurance Law § 3420 against an excess insurer and its affiliates (collectively Great American), denied Great American's motion for leave to amend the answer to include an affirmative defense of res judicata and, upon amendment, for summary judgment dismissing the complaint on that ground, unanimously affirmed, without costs.

Great American disclaimed coverage in the underlying action for personal injuries, brought by plaintiffs herein, because it did not receive timely notice of the accident from its insured, the defendant in the underlying action (Western Beef). Western Beef then commenced a declaratory judgment action against, among others, Great American and the broker who sold it the excess insurance as to the rights and obligations of the parties under the excess insurance policy (Western Beef, Inc. v J & H Marsh & McLennan, Inc., et al. [Sup Ct, Queens County, Index No. 9365/04]). Plaintiffs settled the underlying action and, as part of the settlement, Western Beef assigned to plaintiffs its rights against Great American and the other defendants in the declaratory judgment action. Plaintiffs then took over the prosecution of the declaratory judgment action and also commenced this direct action against Great American to recover the portion of the settlement exceeding the primary policy limit. A motion for summary judgment in the declaratory judgment action resulted in a declaration that Great American was under no obligation to satisfy the judgment against Western Beef in the underlying action, the court holding that timely notice by Western Beef to its insurance broker did not constitute timely notice to Great American because the evidence failed to show that the broker was Great American's agent as well as Western Beef's.

We reject Great American's argument that the instant action is precluded by this declaration. The assignment to plaintiffs of Western Beef's rights under its policy with Great American did not diminish their statutory right to pursue a direct action against the insurer, which is independent of the insurance contract (see Lauritano v American Fid. Fire Ins. Co., 3 AD2d 564, 567 [1957], affd 4 NY2d 1028 [1958] [noting the absence of privity]). The determinative issue in the declaratory judgment action was whether notice of plaintiffs' claims in the underlying action given by Western Beef to its broker could be imputed to Great American; here, no contract, agency or insurance coverage issues are involved. Rather, this is a statutory [*2]action to collect an unpaid settlement in which the only defense available to Great American is that plaintiffs did not satisfy their statutory obligation to provide notice as soon as reasonably possible "in light of the opportunities to do so afforded [them] under the circumstances" (Appel v Allstate Ins. Co., 20 AD3d 367, 369 [2005] [internal quotation marks and citations omitted]). "While a valid final judgment bars future actions between the same parties on the same cause of action, [a] subsequent action will not be barred by res judicata where the nature or object of the second action is distinct from that in the prior action in which the judgment was rendered" (GTFM, LLC v Nagy, 18 AD3d 266, 268 [2005] [internal quotation marks and citations omitted]).

Budhram v. Ogunmoyin



Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellants.
Schwartzapfel Truhowsky Marcus & Sachs, P.C. (Alexander J.
Wulwick, New York, N.Y. of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated December 20, 2007, as denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

The defendants established their prima facie entitlement to judgment as a matter of law by 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. On appeal, the plaintiff argues that her submissions in opposition to the defendants' motion raised a triable issue of fact as to whether she sustained a serious injury to her cervical and lumbar spine under the significant limitation of use category of Insurance Law § 5102(d). We disagree.

The reports of Dr. Robert Diamond and Dr. Andrew Davy were without any probative value since they were unaffirmed (see Grasso v Angerami, 79 NY2d 813; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Pena, 42 AD3d 514). The reports of [*2]Dr. Sheila Horn failed to relate any of the injuries or limitations she noted in her reports to the subject accident (see Morris v Edmond, 48 AD3d 432; Itskovich v Lichenstadter, 2 AD3d 406; Bonner v Hill, 302 AD2d 544).

Similarly, the affirmation of Dr. Kaushnik Das was insufficient to raise a triable issue of fact. Dr. Das examined the plaintiff on November 14, 2005, and concluded on that date that the plaintiff had "decreased" range of motion in her back. However, he failed to set forth the objective tests he performed in arriving at that conclusion (see Piperis v Wan, 49 AD3d 840; Murray v Hartford, 23 AD3d 629; Nelson v Amicizia, 21 AD3d 1015, 1016; Maldonado v Ying Li, 13 AD3d 344). He also clearly relied on the unsworn magnetic resonance imaging (hereinafter MRI) reports of Dr. Diamond in coming to his conclusions that the plaintiff sustained herniated discs at L5-S1, C3-4, C5-6, and C6-7, and a disc bulge at T1-2 (see Malave v Basikov, 45 AD3d 539; Verette v Zia, 44 AD3d 747; Furrs v Griffith, 43 AD3d 389).

Moreover, the reports of Dr. David Delman, and the reports and affirmation of Dr. Richard Radna, were without probative value since they clearly relied on the unsworn MRI reports of Dr. Diamond in coming to their conclusions (see Malave v Basikov, 45 AD3d 539; Verette v Zia, 44 AD3d 747; Furrs v Griffith, 43 AD3d 389). Moreover, even if these submissions were proper, no admissible medical submissions submitted by the plaintiff, or relied upon by the plaintiff's experts, revealed any range of motion limitations in the plaintiff's spine that were even roughly contemporaneous with the subject accident (see D'Onofrio v Floton, Inc., 45 AD3d 525; Rodriguez v Cesar, 40 AD3d 731; Borgella v D & L Taxi Corp., 38 AD3d 701). Without contemporaneous findings of range of motion limitations, the plaintiff could not establish the duration of the injuries (see Ferraro v Ridge Car Serv., 49 AD3d 498). The plaintiff's self-serving affidavit was insufficient to raise a triable issue of fact (see Roman v Fast Lane Car Serv., Inc., 46 AD3d 535).
SKELOS, J.P., SANTUCCI, COVELLO, McCARTHY and CHAMBERS, JJ., concur.

Smeja v Fuentes


Stephen N. Preziosi, Smithtown, N.Y., for appellant.
Richard T. Lau, Jericho, N.Y. (Joseph G. Gallo of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from (1) so much of an order of the Supreme Court, Suffolk County (Doyle, J.), entered August 15, 2006, as 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), and (2) a judgment of the same court dated September 15, 2006, which, upon the order, is in favor of the defendants and against her, dismissing the complaint. The notice of appeal from the order is deemed also to be a notice of appeal from the judgment (see CPLR 5501[c]).

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is affirmed; and it is further,

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

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

The Supreme Court correctly concluded that the defendants met their initial 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; Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50).

In opposition, the plaintiff failed to raise a triable issue of fact. The affirmed report of Dr. Edward Firouztale, dated February 23, 2006, failed to raise a triable issue of fact because while Dr. Firouztale noted that the plaintiff, on various dates, showed "decreased" range of motion in the cervical spine, he failed to adequately quantify or qualify those restrictions (see Toure v Avis Rent A Car Sys., 98 NY2d at 350-351).

The magnetic resonance imaging (hereinafter MRI) reports of Dr. Mark Lodespoto and Dr. Seth Mankes were not competent evidence since they were unaffirmed (see Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; see also Grasso v Angerami, 79 NY2d 813; Pagano v Kingsbury, 182 AD2d 268). The same is true of almost all of the reports of Dr. Donald Holzer submitted by the plaintiff, with the exception of his reports dated May 8, 2002, and March 12, 2003. Those reports were properly relied upon by the plaintiff since the latter report was relied upon by the defendants and the results of the former report were noted in the report of the defendant's examining neurologist, Dr. Edward Weiland (see Kearse v New York City Tr. Auth., 16 AD3d at 47 n 1; see also Zarate v McDonald, 31 AD3d 632). Despite the fact that both reports were properly relied upon by the plaintiff, they failed to raise a triable issue of fact. In the report dated May 8, 2002, while Dr. Holzer set forth cervical spine ranges of motion concerning the plaintiff, he failed to compare those findings to what is normal (see Page v Belmonte, 45 AD3d 825; Malave v Basikov, 45 AD3d 539; Fleury v Benitez, 44 AD3d 996; Nociforo v Penna, 42 AD3d 514, 515), and the report dated March 12, 2003, actually showed that on that date, the plaintiff had full range of motion in her cervical spine.

Although the MRI reports of Dr. Robert Peyster and Dr. Bonnie Rosen also were properly relied upon by the plaintiff, neither report raised a triable issue of fact since they merely noted that as of May 17, 2002, and January 25, 2004, there was evidence that the plaintiff had herniated and bulging discs in the cervical spine at C3-4, C4-5, and C6-7, along with evidence that degenerative disc disease existed at those same levels. 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 Sharma v Diaz, 48 AD3d 447; Mejia v De Rose, 35 AD3d 407; Yakubov v CG Trans. Corp., 30 AD3d 509 ; Cerisier v Thibiu, 29 AD3d 507; Bravo v Rehman, 28 AD3d 694; Kearse v New York City Tr. Auth., 16 AD3d 45; Diaz v Turner, 306 AD2d 241). Further, neither Dr. Peyster nor Dr. Rosen authored any opinion on the cause of the findings they made within their own reports (see Collins v Stone, 8 AD3d 321, 322). The affidavit of the plaintiff was insufficient to raise a triable issue of fact (see Young Soo Lee v Troia, 41 AD3d 469; Nannarone v Ott, 41 AD3d 441; Vidor v Davila, 37 AD3d 826). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.
FISHER, J.P., FLORIO, ANGIOLILLO, DICKERSON and BELEN, JJ., concur.

In the Matter of Interboro Insurance Company v. Coronel


Jerrold N. Cohen, Mineola, N.Y., for appellant.
Jose R. Mendez, P.C., Rego Park, N.Y., for respondents Manuel
A. Coronel, Nancy M. Coronel, Nancy
G. Coronel, Patricia C. Coronel, and
Sandra Coronel.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of uninsured motorist claims, the petitioner appeals from an order of the Supreme Court, Queens County (Rios, J.), entered October 19, 2007, which denied the petition and dismissed the proceeding.

ORDERED that the order is reversed, on the law, with costs, the petition is granted, and the arbitration is permanently stayed.

The petitioner commenced this proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of uninsured motorist claims on the ground, among others, that the accident was not a covered accident under the uninsured motorists endorsement of the petitioner's policy. The Supreme Court denied the petition, concluding that the proceeding was untimely commenced pursuant to CPLR 7503(c). We disagree.

On March 11, 2001, the respondents Nancy M. Coronel, Nancy G. Coronel, Patricia C. Coronel, and Sandra Coronel were involved in an automobile accident on the Grand Central Parkway while riding in a motor vehicle owned by the respondent Manuel A. Coronel and operated by the respondent Patricia C. Coronel (hereinafter the respondents' vehicle). The respondents' vehicle was insured under a policy of insurance issued by the petitioner to Manuel A. Coronel.

The respondents' vehicle rear-ended a motor vehicle owned by nonparty Angelo Langadakis and operated by nonparty Katherine Langadakis (hereinafter the Langadakis vehicle). The drivers [*2]in both vehicles reported to the police officer who responded to the accident that the Langadakis vehicle was cut off by another unidentified vehicle (hereinafter the allegedly uninsured vehicle), causing the Langadakis vehicle to stop short. The respondent Patricia C. Coronel reported that she was unable to stop her vehicle when the Langadakis vehicle stopped short, causing her to rear-end the Langadakis vehicle. Neither driver reported, nor was any other evidence proffered demonstrating, that there was any physical contact between the allegedly uninsured vehicle and either the Langadakis vehicle or the respondents' vehicle.

It is undisputed that when a demand for arbitration was served on the petitioner's predecessor-in-interest, Interboro Mutual Indemnity Insurance Company (hereinafter Interboro), in September 2005 (hereinafter the 2005 demand), Interboro was in rehabilitation pursuant to an order of the Supreme Court, Nassau County, dated April 5, 2004. Notably, the rehabilitation order contained a provision enjoining and restraining "[a]ll persons . . . from commencing or prosecuting any actions, lawsuits, or proceedings against Interboro, or the Superintendent [of Insurance of the State of New York] as Rehabilitator" (hereinafter the rehabilitation stay) (see generally Insurance Law § 7419; Matter of Frontier Ins. Co., 27 AD3d 274, 274-275). In February 2007 the petitioner emerged from rehabilitation and the rehabilitation stay was lifted.

The respondent American Arbitration Association (hereinafter the AAA) received a copy of the 2005 demand on June 25, 2007. On July 25, 2007, the AAA sent a notice (hereinafter the July 2007 notice) to the petitioner advising it of a pre-hearing telephone conference scheduled for September 4, 2007, in connection with the subject arbitration. Within 20 days of its receipt of the July 2007 notice, the petitioner commenced this proceeding.

As a threshold matter, contrary to the respondents' contention and the Supreme Court's determination, the instant petition was timely. An insurer which fails to seek a stay of arbitration within 20 days after being served with a notice of intention or demand to arbitrate under CPLR 7503(c) is generally precluded from objecting to the arbitration thereafter (see Matter of Steck [State Farm Ins. Co.], 89 NY2d 1082, 1084; Matter of Spychalski [Continental Ins. Cos.], 45 NY2d 847, 849; Matter of State Farm Ins. Co. v Williams, 50 AD3d 807, 808; Matter of Standard Fire Ins. Co. v Mouchette, 47 AD3d 635; Matter of Travelers Prop. Cas. Corp. v Klepper, 275 AD2d 234). Under the circumstances of this case, however, since the petitioner was subject to the rehabilitation stay at the time the 2005 demand was served on it, its commencement of this proceeding within 20 days of the petitioner's receipt of the July 2007 notice, in effect, constituted compliance with the limitations period set forth in CPLR 7503(c).

Moreover, the Supreme Court should have granted the petition, inter alia, to permanently stay the arbitration because the record was devoid of any proof of physical contact between the two vehicles involved in the accident and the allegedly uninsured vehicle (see generally Insurance Law § 5217; Matter of Allstate Ins. Co. v Killakey, 78 NY2d 325, 329; Matter of Smith [Great Am. Ins. Co.], 29 NY2d 116, 118; Matter of Eagle Ins. Co. v Brown, 309 AD2d 749).

The parties' remaining contentions need not be reached in light of our determination.

Wray v Mallilo & Grossman


Aliazzo, McCloskey & Gonzalez, LLP, Ozone Park, N.Y. (Thomas
P. McCloskey of counsel), for appellant.
Steinberg & Cavaliere, LLP, White Plains, N.Y. (Ronald W.
Weiner of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated June 12, 2007, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

To prevail in an action to recover damages for legal malpractice, a plaintiff must establish that the defendant did not "exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of that duty proximately caused the plaintiff to sustain actual and ascertainable damages" (Carrasco v Pena & Kahn, 48 AD3d 395, 396; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Erdman v Dell, 50 AD3d 627). To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the attorney's negligence (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442). A defendant moving for summary judgment in a legal malpractice action must, therefore, establish prima facie that the plaintiff cannot prove at least one of the essential elements of the malpractice claim (see Levy v Greenberg, 19 AD3d 462).

Here, the defendant met its prima facie burden of establishing entitlement to judgment as a matter of law by demonstrating that the plaintiff would be unable to prove that, but for any negligence on its part, he would have prevailed in the underlying action to recover damages against the premises owner under the Labor Law §§ 240(1) and 241(6) causes of action. In opposition, the plaintiff failed to raise a triable issue of fact. In the underlying action, the Supreme Court determined that the facts and circumstances giving rise to the plaintiff's accident were insufficient as a matter of law to sustain a claim under the Labor Law §§ 240(1) or 241(6). Accordingly, the plaintiff is collaterally estopped from relitigating those claims in the context of this legal malpractice action (see Sutton v Ezra, 224 AD2d 517; Geraci v Bauman, Greene & Kunkis, 171 AD2d 454, 455).

The plaintiff's remaining contentions either are not properly before us, as they are raised for the first time on appeal, or are without merit.
FISHER, J.P., RITTER, FLORIO and CARNI, JJ., concur.

 Wynne v B. Anthony Construction Corporation


Alan I. Lamer, Elmsford, N.Y. (Fiedelman & McGaw [Andrew
Zajac] of counsel), for appellants.
Law Offices of Marc D. Orloff, P.C., Goshen, N.Y. (Steven A.
Kimmel of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendants B. Anthony Construction Corporation, A. Servidone, Inc., Servidone Construction Corp., and J. Servidone, Jr., Equipment & Sales Corp. appeal from an order of the Supreme Court, Orange County (Giacomo, J.), dated October 17, 2007, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the motion of the defendants B. Anthony Construction Corporation, A. Servidone, Inc., Servidone Construction Corp., and J. Servidone, Jr., Equipment & Sales Corp. which were for summary judgment dismissing the causes of action to recover damages for common-law negligence and violations of Labor Law §§ 200 and 240 (1) insofar as asserted against them and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed, with costs to the plaintiff.

On October 25, 2002, the plaintiff was working as a dump truck driver on a project to construct an exit ramp at the Route 17/Route 94 interchange at Exit 126 in the Town of Chester in Orange County. The plaintiff was employed as a truck driver for nonparty Charles F. O'Neil Printing, Inc., and his job was related to transporting dirt and rock from one area of the worksite to another. The State of New York owned the property. The defendants were the general contractors for the project.

While the plaintiff's fully-loaded dump truck was stopped on the dirt roadway which was to become the exit ramp, the ground underneath the dump truck collapsed when the roof of an underground septic tank or cistern (hereinafter the tank) collapsed. The rear of the truck fell approximately six to seven feet into the ground onto the collapsed roof of the tank while the front end of the truck was thrown upwards. Prior to the accident, the plaintiff had brought two loads to the accident site, and other trucks and equipment traversed the area with no incident. The plaintiff commenced this action against, among others, the appellants, alleging common-law negligence and violations of Labor Law §§ 200, 241(6), and 240(1). The Supreme Court denied the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.

The appellants were entitled to summary judgment dismissing the plaintiff's cause of action alleging a violation of Labor Law § 240(1). Labor Law § 240(1) imposes a nondelegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Rocovich v Consolidated Edison Co., 167 AD2d 524, 527). The plaintiff was not exposed to any risk that the safety devices referenced in Labor Law § 240(1) would have protected against since he was working at ground level when he was injured (see DeLeon v State of New York, 22 AD3d 786, 788; Perron v Hendrickson/Scalamandre/Posillico [TV], 22 AD3d 731, 732; Georgopulos v Gertz Plaza, Inc., 13 AD3d 478; Miller v Weeden, 7 AD3d 684, 685-686). In opposition to the appellants' establishment, prima facie, of their entitlement to summary judgment, the plaintiff failed to raise a triable issue of fact as to the cause of action alleging a violation of Labor Law § 240(1).

The Supreme Court properly denied that branch of the appellants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6). The appellants failed to establish that they complied with the provisions of the Industrial Code upon which the plaintiff relied, or that the alleged rule or regulation alleged to have been breached did not apply to the facts of this case (see Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616).

With respect to the plaintiff's causes of action to recover damages for common-law negligence and violation of Labor Law § 200, the plaintiff's injuries arose not from the manner in which the work was being performed, but rather, from an allegedly dangerous condition on the property. Under such circumstances, "a general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition" (Keating v Nanuet Bd. of Educ., 40 AD3d 706, 708; Payne v 100 Motor Parkway Assoc., LLC, 45 AD3d 550, 553). Here, the appellants, as general contractor, established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not have either actual or constructive notice of the allegedly dangerous condition, and the plaintiff failed to raise any issue of fact in opposition (see Ragone v Spring Scaffolding, Inc., 46 AD3d 652, 655; Keating v Nanuet Bd. of Educ., 40 AD3d at 708).
SKELOS, J.P., MILLER, CARNI and CHAMBERS, JJ., concur.

Wynne v State of New York


Alan I. Lamer, Elmsford, N.Y. (Fiedelman & McGaw [Andrew
Zajac] of counsel), for appellant.
Law Offices of Marc D. Orloff, P.C., Goshen, N.Y. (Steven A.
Kimmel of counsel), for respondent.

DECISION & ORDER

In a claim to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Court of Claims (Mignano, J.), dated August 20, 2007, as denied that branch of its motion which was for summary judgment dismissing so much of the claim as sought to recover damages for common-law negligence and violation of Labor Law § 200.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On October 25, 2002, the claimant was working as a dump truck driver on a project to construct an exit ramp at the Route 17/Route 94 interchange at Exit 126 in the Town of Chester in Orange County. The defendant, State of New York, was the owner of the property. While the claimant's fully-loaded dump truck was stopped on the dirt roadway which was to become the exit ramp, the ground underneath the dump truck collapsed when the roof of an underground septic tank or cistern (hereinafter the tank) collapsed. The rear of the truck fell into the ground onto the collapsed roof of the tank while the front end of the truck was thrown upwards. Prior to the commencement of the construction, the State conducted investigations of the property to determine if the property was suitable to construct the exit ramp, which consisted of visual inspections, performance of environmental tests, conducting soil tests around the accident site, and taking aerial photographs.

The claimant alleged that his injuries were caused, inter alia, by the State's failure to perform a reasonable investigation such that it would have discovered the presence of the underground tank. The State moved for summary judgment dismissing the claim. The Court of Claims granted that branch of the State's motion which was for summary judgment dismissing so much of the claim as sought to recover damages for the alleged violations of Labor Law §§ 240 and 241(6) and denied that branch of the motion which was for summary judgment dismissing so much of the claim as sought to recover damages for common-law negligence and violation of Labor Law § 200. The State appeals.

Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to maintain a safe construction site (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352; Russin v Louis N. Picciano & Son, 54 NY2d 311, 316-317; Biafora v City of New York, 27 AD3d 506, 507; Paladino v Society of N.Y. Hosp., 307 AD2d 343, 344). Where a claimant's injuries stem not from the manner in which the work was being performed but, rather, from a dangerous condition on its property, an owner may be liable for common-law negligence and violation of Labor Law § 200 if it has actual or constructive notice of the dangerous condition, irrespective of whether it supervised the claimant's work (see Payne v 100 Motor Parkway Assoc., LLC, 45 AD3d 550, 553; Kerins v Vassar Coll., 15 AD3d 623, 626; Blanco v Oliveri, 304 AD2d 599, see also Smith v Cari, LLC, 50 AD3d 879).

In opposition to the State's prima facie showing of entitlement to judgment as a matter of law, the claimant raised a triable issue of fact through his expert affidavit as to whether the State had constructive notice of the allegedly dangerous condition which caused the claimant's accident (see generally Bradley v Morgan Stanley & Co., Inc., 21 AD3d 866, 869). Specifically, the claimant raised a triable issue of fact as to whether the State performed a reasonable investigation of the property prior to construction in light of certain structures located adjacent to the accident site and the property's prior use such that a diligent inspection would have disclosed the tank that caused the claimant's injury (see generally De Witt Props. v City of New York, 44 NY2d 417, 424; Monroe v City of New York, 67 AD2d 89, 96; Lunde v Nichols Yacht Sales, 143 AD2d 816, 818; cf. Kennedy v McKay, 86 AD2d 597, 598).

Accordingly, the Court of Claims properly denied that branch of the State's motion which was for summary judgment dismissing so much of the claim as sought to recover damages for common-law negligence and violation of Labor Law § 200.
SKELOS, J.P., MILLER, CARNI and CHAMBERS, JJ., concur.

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