Dear Coverage Pointers Subscribers
There is no quieter time in the universe of New York State appellate court decisions then the dog days of August. The issue a year ago covered a whopping eight cases, a year before only six. We'll get a larger number of reviews to you as soon as the courts get back into the swing of things. Hold tight until the first issue after Labor Day when the floodgates reopen
Oh, I knew you were curious. Where does the term "dog days" of summer originate? Does it derive from the collection of lazy dogs that refuse to do a darn thing during the hottest days of the years? Nah.
According to the Library of Congress, second only to Wikipedia as the source of all information, the ancient Romans coined the phrase, calling the hot sultry weather of early July through September "caniculares dies" or "days of the dogs" after the constellation of Canis Major, within which Sirius, the Dog Star, is found. As the hottest and most humid days of summer generally coincided with the period Sirius rose and set with the sun, the Romans believed that heat from Sirius was increasing the heat of the sun.
Discovery of Other Coverage Litigation and Underinsurance
You will find a very helpful decision from the Second Department this week granting a protective order which protected an insurer from having to produce records relating to other coverage litigation interpreting similar policy language. Save that one for future reference. You'll need it. You'll also find an interesting case -- from a divided court -- on the way to properly settle multiple tortfeasor cases when an insured wishes to proceed with an underinsured motorist benefit claim.
Lucky Babies
Last week we mentioned the good luck associated with 8/8/08 and the AP reported on two 8/8/08 and 8:08 AM births. One of those was a baby boy named Xander whose older brother was born on 4/5/06. Odd, indeed. Of course, both Xander and Haily Jo, born in another state, weighed in, at 8 pounds, 8 ounces.
Anniversaries and Trivia
Cubs fans will remember that the last time the Chicago franchise won the World Series was in 1908, defeating the Tigers in four straight games. On the way to that Series, 100 years ago today, on August 22, 1908, they defeated the Boston Doves by a score of 3-1, concluding a four game series before starting a series with the Superbas.
Both the Doves and the Superbas (under different names of course) are still in the major leagues. With that in mind, here's today's question (answer below):
a) By what name is the Boston Dove Team now known?
b) In what town did the Superbas play at the time (hint, the team was originally knows at the Bridegrooms)?
c) From where did the Superbas get their name?
Audrey's Angles:
Here's our words of No-Faultian wisdom from the Queen of No Fault:
In reviewing the sparse cases this edition, one thing that I took from the cases reported is that in no-fault litigation it is not enough just to know the no-fault regulation. You need to be mindful that it is litigation (not arbitration where evidence rules are relaxed) and the rules of evidence apply. As I review the cases this edition it's noted that all of them addressed failure to present evidence in an admissible form. In other words, making sure that the individual executing the affidavit has personal knowledge of the facts set forth in it. Admittedly, the Horton case is a bit different as Judge Golia pointed out the standard placed on the insurer to demonstrate mailing was more akin to a "plebe" in the military which is not a reasonable standard to invoke upon an insurer in litigation. Alright, enough said on that point.
I have more information on the no-fault seminar I mentioned last time too. It will be held on Wednesday, November 19, 2008, from 9:00 to 4:30 at the Hyatt Regency in downtown Buffalo. Again, it is a pure no-fault seminar and not no-fault serious injury threshold. The topics covered are no-fault arbitration, litigation, claims handling (IMEs, denial wording), and a review of the recent no-fault cases. If you would like the brochure for the program to sign up let me know and I will send one to you.
Audrey A. Seeley
Earl's Pearls
Itching to be a witness in an upcoming deposition? Thinking of the possibility of bad faith and want to get ready for that examination before trial? Earl "the Pearl" Cantwell offers some very important pointers for deposition and trial witnesses in his column this week.
Answer to trivia:
a) The Boston Doves (1907 - 1910), previously, the Boston Red Caps and the Boston Beaneaters turned into the Boston Rustlers, the Boston Braves, and the Boston Bees and then again became the Boston Braves. The franchised moved to Milwaukee in 1953 and finally to Atlanta in 1966.
b) The Brooklyn Superbas, formerly the Brooklyn Bridegrooms became the Brooklyn Trolley Dodgers in 1911 and then the Brooklyn Dodgers in 1913. The following year the team name was changed to the Brooklyn Robins but then in 1932, the team reverted to the Dodgers. Of course, in 1957, the Brooklyn franchise moved to Los Angeles and baseball, as we knew it, came to an end.
c) The name derives from the Hanlon Superbas, a vaudeville act popular at the time, so named when Ned Hanlon was manager. The Robins name came from manager Wilbert Robinson.
This Week's Highlights:
OK, now for the serious stuff. Here are the highlights of this week's brief, but exciting issue of Coverage Pointers:
- In Coverage Lawsuit, Cannot Get Discovery of Documents Relating to Previous Litigation Interpreting Same Policy Terms
- Be Careful Not to Destroy Carrier's Subrogation Rights -- Lessons for Settling with Multiple Defendants if Applying for Underinsured Motorists Benefits
STAROSIELEC'S SERIOUS (INJURY) SIDE OF NEW YORK NO FAULT
Mark Starosielec
[email protected]
- Many, Many, Many Ways for Plaintiff to Fail to Meet the Serious Injury Threshold
Audrey Seeley
- Insurer Not Responsible for Lost Wages When Applicant Disabled Prior to Accident
- Applicant Barred by Doctrine of Collateral Estoppel From Asserting Injuries Related to Accident
Litigation
- Summary Judgment Motions Denied as Neither Party Submits Sufficient Affidavits
- Motion to Vacate Default Judgment Denied!
PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper
Alas, my lament continues. Although there were again no first party decisions to discuss, please take a look at an interesting third-party practice case involving an owner stuck holding the bag on a Labor Law § 240(1) claim.
- Despite Attempts to Pass the Burden, Plaintiff/Owner Stuck with 240(1) Liability
Closing Comments:
Labor Day is just around the corner and we wish you the happiest of holidays. Take a day off. Nah, take the whole darn weekend off, and relax.
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
Audrey A. Seeley
Steven E. Peiper
Mark Starosielec
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
APPELLATE
TEAM
Jody E. Briandi, Team Leader
[email protected]
Scott M. Duquin
Index to Special Columns
Starosielec’s Serious Side of “Serious Injury”
Peiper on Property
Earl’s Pearls
8/19/08 Greenman-Pedersen, Inc.,v. Zurich American Insurance Company
Appellate Division, Second Department
In Coverage Lawsuit, Cannot Get Discovery of Documents
Relating to Previous Litigation Interpreting Same Policy Terms
In Volume VIII, No. 15 of Coverage Pointers we reported on this case:
1/16/07
Greenman-Pedersen, Inc., v. Zurich American Insurance Company
Appellate Division, Second Department
Questions of Fact about Additional Insured’s Diligence
in Giving Notice are for Jury to Determine
Court finds that there are unresolved issues of fact as to whether
the additional insured exercised reasonable diligence in ascertaining the
existence of coverage under the policy issued by the defendant carrier and
whether it complied with those policy conditions applicable to additional
insureds.
The court in this opinion finds that the 1/07 decision did not expressly
limited the issues in this case to the plaintiff's reasonable diligence in
ascertaining the existence of insurance coverage under the defendant's policy
when it denied a motion for summary judgment. Therefore discovery can go
forward on all issues relating to coverage.
However, there are limits to discovery. The court granted a protective order and refused to compel disclosure of “documents pertaining to past and current litigation involving the interpretation of certain terms in policies issued by the defendant.” That request is overly broad and would be unduly burdensome to comply with and is of “questionable relevance to the present case or would likely be privileged or confidential”).
8/14/08 In the Matter of Central Mutual Insurance Company v. Bemiss
Appellate Division, Third Department
Be Careful Not to Destroy
Carrier’s Subrogation Rights -- Lessons for Settling with Multiple Defendants if
Applying for Underinsured Motorists Benefits
Bemiss was involved in a multi-car accident and negotiated a
settlement with one of the other drivers for the full of amount of the liability
policy limits. Before the settlement was finalized, she then gave her SUM
(underinsured) carrier, Central, notice that she was intending to issue a
release to that other driver and sought permission. Central did not respond,
and Bemiss accepted the settlement proceeds, issuing a release to both
tortfeasors without protecting subrogation rights..
Later, Bemiss negotiated a settlement with a second tortfeasor for an amount less that the policy limits, did not seek permission or consent of the SUM carrier to settle and issued a release. She then made a claim for SUM benefits and Central denied coverage based on Bemiss’ failure to protect the carrier’s subrogation rights. Bemiss demanded arbitration and Central moved for a permanent stay.
The Appellate Division agreed that the settlement with the first tortfeasor was proper. Under Condition 10, request for consent to settle was made, 30 days went by without a response, and the insured was permitted to issue a release.
However, the court concluded that the settlement with the second tortfeasor, even for an amount less than the policy limits, destroyed the insurer’s subrogation rights against that tortfeasor. The court finds that the regulations require the preservation of subrogation rights when settlement is made for less than the policy limits.
A strong – and well-reasoned dissent – suggests that the majority’s requirement of preservation of subrogation rights when less than the policy limits are being paid, will make it impossible for a victim to ever settle a case where there are multiple tortfeasor’s.
Editor’s Note: While insurer’s might prefer the majority’s view here, we – as insurance purists – agree with the dissent. However, my good friend Jonathan Dachs, who writes the Insurance Law column in the New York Law Journal, would side with the majority (and I have a lot of respect for his views in this area). Our friendly disagreement was captured in a front page article in the New York Law Journal on August 15th.
STAROSIELEC’S SERIOUS (INJURY) SIDE OF NEW YORK NO FAULT
Mark
Starosielec
[email protected]
08/19/08 Appellate Division, Second Department
Many, Many, Many ways for Plaintiff to Fail to Meet the Serious Injury Threshold
Despite a valiant effort, plaintiff’s opposition to defendant’s motion for summary judgment failed to a raise a triable issue of fact. Initially, the Second Department noted that unsworn medical records submitted in support of plaintiff’s opposition had no probative value, and were not considered by the Court accordingly. Likewise, plaintiff’s treating physician’s affidavit was similarly without merit because it relied upon unsworn medical records. Further, although plaintiff submitted evidence which purported to establish a disc herniation and a possible labrum tear of the left shoulder, such evidence, standing alone, was not conclusive proof that plaintiff had sustained a serious injury.
Need more reasons…
In addition, plaintiff’s own “self-serving” deposition testimony was deemed insufficient to raise a triable issue of fact. Moreover, even if the information relied upon by plaintiff’s physician was in evidentiary form, he still failed to allege any range of motion deficiencies in order to raise an issue of fact.
Still not sure?...
Plaintiff’s opposition to defendant’s motion for summary judgment likewise could not overcome the three and one-half (3 ½) year gap between treatments. As such, defendant’s motion was granted at the trial court, and affirmed on appeal.
Audrey Seeley
8/19/08 In the Matter of the Arbitration Between Applicant and Respondent
Arbitrator Thomas J. McCorry (Erie County)
Insurer Not Responsible for Lost Wages When Applicant Disabled Prior to Accident
The Applicant, eligible injured person (“Applicant”), was involved in a November 2, 2007, motor vehicle accident and claimed lost wages as a result of unspecified injuries. The insurer denied the Applicant’s claim for lost wages on the ground that the Applicant was already out of work on disability from a prior accident. The Applicant testified that, at the time of the hearing, he was in the process of looking for summer gardening work and hoped to gain a teaching position as he knew his lost wage benefits from his March 2005 accident were due to expire. The Applicant did not present any evidence of an offer for summer gardening work or that he was applying for a teaching position. The Applicant also failed to submit medical evidence that he was able to return to work or had returned to work before the November 2007 accident. Accordingly, the Applicant’s claim was denied.
8/19/08 In the Matter of the Arbitration Between Applicant and Respondent
Arbitrator Thomas J. McCorry (Erie County)
Applicant Barred by Doctrine of Collateral Estoppel From Asserting Injuries Related to Accident
The Applicant, eligible injured person (“Applicant”), was involved in a February 18, 1999, motor vehicle accident and sought reimbursement of a medical bill for a March 28, 2002, service date. The Applicant admitted to a prior history of accidents leaving him disabled and in pain. Then shortly after the February 1999 accident he was incarcerated for three years as result of an assault conviction.
The medical record from the March 28, 2002, service date in dispute indicated that the Applicant was treating for chronic cervical, thoracic, and lumbar spine pain that emanated from a 1993 injury. In 1996, the Applicant underwent surgery to some part of his spine and then was involved in the 1999 accident. The record noted that the Applicant had been treating ever since the 1999 accident.
The insurer denied the medical bill on the basis that the injury was not related to the 1999 motor vehicle accident. The insurer relied solely upon the March 28, 2002, medical record to make that determination and did not have a peer review or independent medical examination conducted.
The arbitrator agreed with the Applicant’s argument that the denial was inappropriate as it was based upon the claims handler’s assessment and not a medical opinion.
The insurer prevailed though as it produced an April 29, 2008, arbitration award from a personal injury action arising out of the 1999 motor vehicle accident which determined that the Applicant’s injuries were pre-existing and unrelated to the accident. The arbitrator determined that the doctrine of collateral estoppel applied. It is noted that the arbitrator stated that because of this issue he could not consider or even reach the sufficiency of the denial.
Litigation
7/30/08 Horton Med., PC a/a/o Steve Williams v. New York Cent. Mut. Fire Ins. Co.
Appellate Term, Second Department
Summary Judgment Motions Denied as Neither Party Submits Sufficient Affidavits
The court denied both parties summary judgment motions on the basis that neither party submitted a proper affidavit. We have read the standard basis for the denial on this issue over and over again. Yet, the interesting portion of this decision is the dissent and specifically Judge Golia. Judge Golia takes issue with finding that the insurer’s affidavit regarding mailing procedures was insufficient. Specifically, Judge Golia states:
It should not be the province of this Court to require that a party to an action recite all the component parts encompassed by the act of this unique word ‘mailing’ in much the same way that ‘plebes’ at a military academy are requested to recite all the component elements of the act of ‘walking’ before taking a walk. For the military to require such strict adherence can make sense. For the courts to do so is unreasonable.
7/30/08 Ave T MPC Corp. a/a/o Airinov Iskolsky v. Chubb Indem. Ins. Co.
Appellate Term, Second Department
Motion to Vacate Default Judgment Denied!
The court denied the defendant’s motion to vacate a default judgment as the defendant failed to set forth a reasonable excuse for the default. The defendant proffered the excuse of law office failure which the court noted, may be accepted in the exercise of discretion. However, counsel must submit facts supporting to justify the default in evidentiary form. In this case, the defendant’s counsel stated that the client delayed in forwarding the summons and complaint and generally averred that the summons and complaint was lost in the shuffle by not only the client but also by counsel. The problem with the statement was that defense counsel’s affirmation was not based upon personal knowledge and therefore of no probative value.
PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper
Alas, my lament continues. Although there were again no first party decisions to discuss, please take a look at an interesting third-party practice case involving an owner stuck holding the bag on a Labor Law § 240(1) claim.
Mid-Valley Oil Co., Inc. v. Hughes Network Sys., Inc.
08/19/08 Appellate Division, Second Department
Despite Attempts to Pass the Burden, Plaintiff/Owner Stuck with 240(1) Liability
Plaintiff commenced this action seeking to recover common law indemnification and/or contractual indemnification from defendant. After a third-party action was commenced, plaintiff then sought contractual indemnification from the third-party defendant as well.
Plaintiff’s claim for common law indemnification failed where it could not establish that defendant’s negligence caused or contributed to the underlying injury. Likewise, the Second Department found no evidence that defendant supervised, or otherwise controlled, the worksite.
With that route blocked, plaintiff moved onto a claim for contractual indemnification. However, plaintiff’s claims were foiled when it could not establish it was a third-party beneficiary to a contract defendant entered into with non-party Mobil Oil Company (apparently plaintiff’s predecessor in interest).
Lastly, plaintiff tried the third-party beneficiary argument again this time seeking contractual indemnification from third-party defendant. This argument met the same fate as the previous two arguments where the contract under which plaintiff sought recovery explicitly stated that it did not contemplate third-party beneficiaries.
As a result, plaintiff’s action was dismissed, and having been rendered moot, the third-party action was dismissed as well.
EARL’S PEARLS
Earl K. Cantwell, II
Deposition Do’s and Don’ts
While much has been said about deposition preparation, it is surprising how some basic ideas are lost or not communicated to a client or insured who is about to undergo a deposition. Keep in mind that trial lawyers engage in depositions all the time, and some litigious clients are very experienced and even (perversely) enjoy being deposed. However, this is not the norm for most clients or witnesses who may be called to testify because they have some particular knowledge about the events in question, happen to be involved with the events in question, or otherwise may have some direct or background information.
The following are some simple recommendations to communicate to an insured, client or employee in preparation for a deposition:
1. Dress appropriately. A deposition is a formal legal proceeding and dress should be business casual, at least. I always enjoy writing deposition summaries concerning the witness who shows up in his “least dirty” hard rock band T-shirt.
2. Do not review any documents, or make any investigation of the case or its subject matter, before the deposition without permission and direction of counsel.
3. Be honest. Sometimes, being honest includes the witness saying that he or she does not remember or does not have a definite recollection of a certain matter at the time of the deposition. As attorneys, we can deal with problems in a case or defense, legally or factually, but there is almost no defense or reconstruction to remedy an untruthful witness.
4. Do not guess at answers. The witness should only testify with respect to actual recollection, either innate or as refreshed by reviewing documents or correspondence. Witnesses often get into trouble by guessing at answers, or saying what the answer should be, only to find that for some reason, perhaps innocent and legitimate, the answer is inaccurate.
5. Only answer the question posed. The deposition is not the time to tell the entire story from one’s point of view. Opposing counsel is in charge of questioning, so let him or her ask the questions, and if they do not address what your side believes to be important issues or facts, that will be addressed or brought up at a later time.
6. Do not argue with the examining lawyer (or with your own counsel). Arguing distracts from intelligent and calm reflection, see below, often lets matters slip out which would not otherwise be part of the testimony, and cases can be lost but not often won in depositions.
7. Give thought to your responses. Do not assume the answer to a question without thinking and confirming it mentally. Do not be too quick to respond, and give yourself time to reflect. Every response should follow this pattern: What is the question? What is the answer? How can I best state the answer?
8. Keep your cool. Litigation can be strenuous, and the subject matter of the litigation could be heated, such a serious personal injury, a bitter contract dispute, etc. The witness has to put those thoughts out of their mind and not let emotion or bad feelings arising from the case prejudice or color their thought process or testimony.
9. Be consistent. If the witness truly understands the question and has pondered the response and formulated the best way to answer the question, answers should be relatively consistent within the particular subject matter or area of inquiry. Giving thought to your response will also help to set forth the best answer, stated in the best way, and other answers should dovetail with that position. Remember, opposing counsel is not looking for the truth: they are looking for your testimony, and if there are discrepancies and inconsistencies, they will not generously let those be forgotten, but will file those away in their memory or deposition summary and confront the witness with them at trial.
10. The witness is entitled to ask for clarification if the question is confusing. The witness must be able to understand the question, and if for some reason the question is confusing, inaccurately stated, or contains a factually incorrect pemise (which often happens), the witness needs to pick up on that and point out any inconsistencies and ask for clarification. The witness is entitled to have the question read back by the court reporter; a polite request can be made to examining counsel to repeat the question; and inquiry with respect to what is meant by a certain phrase or part of the question is appropriate, as long as one is not argumentative – see above.
11. Do not “play lawyer” or try to decide whether a certain answer or information helps or hurts your side of the case. Most of the time when witnesses do this, they get it wrong. Trying to frame an answer to help one (perceived) part of the case, they inadvertently provide opposing counsel with ammunition on another part of the case or defense. Moreover, many times opposing counsel is taking the deposition to engage in discovery and learn underlying facts, and has little or no set agenda. Accordingly, trying to determine where the other lawyer “is going” with question when the other lawyer himself is not actually sure, is a recipe for confusion and disaster.
While many of these concepts may be apparent to counsel who have sat through their third deposition of the week, they may be unknown and very helpful to a witness who is undergoing a deposition for the first and perhaps last time in their life.
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.
8/14/08 Northrop
Grumman Corp. v. Factory Mutual Insurance Company
Ninth Circuit Court of Appeals
Court Rejects Insured’s Argument that Primary and
Excess Policies must be Construed as One Document.
Court held that the plain language of a Flood
Exclusion unambiguously barred coverage for the water damage to insured’s
shipyards. The insured argued that this interpretation is flawed because it
fails to read the excess policy in light of the primary policy. The Court
observed that insurance policies must be construed in context and, although the
primary policy may be consulted in interpreting the excess policy, the Court
declined to treat the two documents as one contract.
Submitted by: Michael T. Glascott; Lustig & Brown, LLP
8/13/08 Vogelin v. American Family Mutual Ins. Co.
Oregon Court of Appeals
Underinsured Motorist Benefits Calculated by
Subtracting Amounts Received From Tortfeasor’s Liability Insurance From
Insured’s Uninsured Motorist Policy Limits, Not Insured’s Total Damages
Jessica Vogelin (“Vogelin”) was injured in
an automobile accident when she was hit by James. Vogelin recovered from James
the policy limit of his liability insurance, which was $25,000. Vogelin then
made a claim for underinsured motorist benefits (“UIM”) under her insurance
policy with American Family Mutual Insurance Company (“American Family”).
American Family denied Vogelin’s claim and Vogelin brought an action for breach
of contract against American Family for UIM benefits in the amount of $100,000,
the policy’s limits. The trial court entered judgment for Vogelin in the amount
of $75,000, plus costs and fees. The trial court reached this amount by
deducting Vogelin’s $25,000 recovery from James from the American Family policy
limits. Vogelin appealed arguing that she should have been awarded the full
$100,000 policy limits contending that the $25,000 paid by James should be
deducted from her total damages, which a jury found to be over $300,000. In
affirming the trial court’s decision, the court of appeals determined that when
an insured’s damages exceed both the amount recovered from the tortfeasor’s
liability insurance and the uninsured motorist limit of the insured’s policy,
UIM benefits are calculated by subtracting the amount received from the
tortfeasor’s liability insurance from the insured’s uninsured motorist policy
limits pursuant to ORS 742.502(2) Pursuant to ORS 742.502(2), the court, relying
on an Oregon Supreme Court opinion decided after this matter had been briefed,
noted “UIM benefits are intended to fill the gap between the limit of an
insured’s [uninsured motorist] coverage and the amount he or she actually
receives from another motorist.” Mid-Century Ins. Co. v. Perkins, 344 Or 196,
179 P3d 633 (2008).
Submitted by: Bruce D. Celebrezze and Erin J. Volkmar, Sedgwick, Detert, Moran and Arnold
REPORTED DECISIONS
In the Matter of the Arbitration between Central Mutual Insurance Company v. Bemiss
Calendar Date: May 30, 2008
Before: Mercure, J.P., Spain, Rose, Kavanagh and Stein, JJ.
Capasso & Massaroni, L.L.P., Schenectady (Michael
J. Hutter of counsel), for appellant.
Goldberg Segalla, L.L.P., Albany (Jonathan M.
Bernstein of counsel), for respondent.
MEMORANDUM AND ORDER
Rose, J.
Appeal from an order of the Supreme Court (Hummel, J.), entered May 16, 2007 in Rensselaer County, which granted petitioner's application pursuant to CPLR 7503 to permanently stay arbitration between the parties.
After respondent was injured in a multicar accident, she negotiated a settlement with one of the tortfeasors for the full amount of that tortfeasor's liability insurance policy. She then gave written notice of her intent to enter into this settlement to petitioner, which had issued her an insurance policy with supplementary uninsured/underinsured motorist (hereinafter SUM) coverage, but petitioner did not respond. Later, she agreed to settle with a second tortfeasor for less than that tortfeasor's policy limits without first giving any notice to, or obtaining written consent from, petitioner. Respondent ultimately signed releases for both tortfeasors that made no provision for preserving petitioner's subrogation rights. When she then made a claim for SUM benefits, petitioner disclaimed coverage based upon her failure to either obtain its consent to the settlements or take steps to preserve its subrogation rights. Respondent then demanded arbitration of her SUM claim, and petitioner commenced this CPLR article 75 proceeding to permanently stay arbitration. Supreme Court granted petitioner's application. Respondent now appeals. [*2]
Initially, we agree with respondent that the terms of the policy permitted her to settle with the first tortfeasor without preserving petitioner's subrogation rights [FN1]. Paragraph 10 of the policy describes when an insured may settle with a tortfeasor without jeopardizing SUM coverage and paragraph 13 indicates that the insured may not prejudice petitioner's subrogation rights except as permitted in paragraph 10 [FN2]. The first sentence of paragraph 10 permits settlement and execution of a release with a tortfeasor for such party's available policy limits after 30 days actual written notice to petitioner, unless petitioner agrees to advance the settlement amount within that time. Here, this provision permitted settlement with the first tortfeasor because respondent gave timely written notice and petitioner did not agree to advance the settlement amount. Neither paragraph 10 nor paragraph 13 mandated preservation of petitioner's subrogation rights in those circumstances, and respondent's execution of the release with the first tortfeasor did not violate the conditions of petitioner's policy (see e.g. Matter of Atlantic Mut. Ins. Co. v Cooper, 247 AD2d 209, 209 [1998]; cf. Matter of Transportation Ins. Co. [Pecoraro], 270 AD2d 851, 852 [2000]).
We reach a different conclusion as to respondent's argument that her settlement with the first tortfeasor for that party's policy limits relieved her of the obligation to either obtain petitioner's written consent to her settlement with the second tortfeasor or preserve petitioner's subrogation rights in the release given to that tortfeasor. While paragraph 9 of the policy makes clear that respondent was obligated to fully exhaust the policy of only one of the tortfeasors involved in her accident (see S'Dao v National Grange Mut. Ins. Co., 87 NY2d 853, 854-855 [1995]), that same provision does not excuse a failure to comply with paragraph 10 upon settling with another tortfeasor. Unlike the settlement with the first tortfeasor, paragraph 10's first sentence is not applicable to respondent's settlement with the second tortfeasor because the latter was not for the full policy amount. As a result, only the last sentence of paragraph 10 applies here. That sentence provides: "An insured shall not otherwise settle with any negligent party, without our written consent, such that our [subrogation] rights would be impaired." We do not view this sentence to be limited to where a party seeks in the first instance to settle for the full available policy limits of one tortfeasor. Rather, its function is to make clear that the method described in the first sentence of paragraph 10 is the one and only way to enter a settlement with "any negligent party" which impairs petitioner's rights without its consent. There is no dispute that respondent failed to obtain petitioner's consent or reserve petitioner's subrogation rights against the second tortfeasor here.
Our reading of paragraph 10 will not have the effect of discouraging settlements by, as respondent contends, holding her hostage to petitioner's subrogation rights and forcing her to fully litigate any claims that she might have against any and all tortfeasors. That effect would [*3]occur only if the insured were required to exhaust the policies of all tortfeasors either before or after receiving SUM benefits. However, since the amendment of the applicable regulation (see 11 NYCRR 60-2.3 [f]) in 1993 and the Court of Appeals holding in S'Dao v National Grange Mut. Ins. Co. (supra) in 1995, it has become clear that insureds need only exhaust the policy or policies of a single tortfeasor (see Dachs and Dachs, Insurance Law, NYLJ, Sept. 13, 2005, at 3, col 1). Thus, there is no longer any requirement in the regulations or the policy language that the insured pursue litigation or settle the claims that it might have against additional tortfeasors in order to qualify for or retain SUM benefits. While it is true that our reading of paragraph 10 precludes the insured from entering a second settlement that impairs subrogation rights without the insurer's consent, it nonetheless encourages an initial settlement with one tortfeasor and expedites the receipt of SUM benefits while protecting the insurer's subrogation rights to recoup the benefits paid from other tortfeasors. There can be little doubt that such was the intent of the applicable regulations (see Dachs and Dachs, Insurance Law, NYLJ, Sept. 13, 2005).
Inasmuch as respondent did not comply with the terms of her policy, she lost her claim to SUM benefits and we find no basis to disturb Supreme Court's determination to permanently stay arbitration (see Matter of Prudential Prop. & Cas. Ins. Co. v Ambeau, 19 AD3d 999, 1000 [2005]; Matter of State Farm Mut. Auto. Ins. Co. v Lucano, 11 AD3d 548, 548 [2004], lv denied 5 NY3d 717 [2005]; New York Cent. Mut. Fire Ins. Co. v Danaher, 290 AD2d 783, 784-785 [2002]).
Mercure, J.P., Spain and Stein,
JJ., concur.
Kavanagh, J. (dissenting).
I do not agree with the majority's position that, prior to gaining access to supplementary uninsured/underinsured motorist (hereinafter SUM) coverage, an insured must fully exhaust the applicable policy limits of every tortfeasor's insurance policy who was involved in the accident or, in the alternative, once it has fully exhausted the applicable policy limits of one tortfeasor, it must obtain written permission from the SUM carrier to enter into any settlement with any other tortfeasor that is less than the policy limits. For this reason, I respectfully dissent.
When respondent stopped her vehicle as a result of a car accident that occurred in front of her, she was struck in the rear by the first tortfeasor's vehicle. The second tortfeasor's vehicle then struck the first tortfeasor's vehicle in the rear, causing it to strike respondent's vehicle a second time. As a result, respondent commenced an action against both tortfeasors for injuries she sustained as a result of the accident. In the discussions that ensued, the settlement offer received from the second tortfeasor was drastically lower than that of the first tortfeasor, reflecting the relative level of culpability of each party.
Paragraph 9 of respondent's SUM policy entitled "Exhaustion Required" provides that "[e]xcept as provided in [paragraph] 10, we will pay under this SUM coverage only after the limits of liability have been used up under all motor vehicle bodily injury liability insurance policies or bonds applicable at the time of the accident in regard to any one person who may be legally liable for the bodily injury sustained by [respondent]" (emphasis added). It is conceded that when respondent settled with the first tortfeasor, she exhausted all bodily injury insurance policies with respect to that tortfeasor and, per the literal reading of this provision of her policy, she was not required to exhaust the second tortfeasor's bodily injury policies in order to make a [*4]SUM claim under her policy.
Paragraph 10 provides the manner in which respondent was able to settle with the first tortfeasor it allowed respondent to sign a release with a tortfeasor if she provided petitioner with written notice of her intent to settle for the full available limit of the first tortfeasor's policy and if, after 30 days, petitioner choose not to advance the settlement amount to respondent and proceed against the first tortfeasor. Respondent provided such notice to petitioner and petitioner did not respond. Once this notice was provided and the requisite time period expired, respondent was within her rights under her policy with petitioner to settle for the full amount of that tortfeasor's insurance policy and provide a release to that tortfeasor for any further liability. Moreover, to gain access to the SUM policy, she was not then required, once this had occurred, to provide the SUM carrier with written notice of her intent to settle with the second tortfeasor even if for less than the policy limits.
The majority's reference to the last sentence of paragraph 10 is, in my view, misplaced. While it states that "[a]n insured shall not otherwise settle with any negligent party, without our written consent, such that our rights would be impaired," this does not apply to the second tortfeasor herein. This sentence found in the "Release or Advance" paragraph applies to a party seeking in the first instance to settle for the full limits of a liability policy and requires that the settlement must be done in accordance with the aforementioned provisions of paragraph 10. However, once those conditions have been met, and a settlement has been reached with respect to the full limits of one tortfeasor's policy, paragraph 10, and all of its terms, no longer applies to restrict a party's ability to settle with a second tortfeasor. Here, the exhaustion of the first tortfeasor's policy triggered respondent's SUM coverage and the settlement reached with the second tortfeasor did not render the SUM coverage unavailable (see S'Dao v National Grange Mut. Ins. Co., 87 NY2d 853, 854-855 [1995]; Matter of Liberty Mut. Ins. Co. v Doherty, 13 AD3d 629, 630 [2004]; see also Matter of Hertz Claim Mgt. Corp. v Kulakowich, ___ AD3d ___, ___, 2008 NY Slip Op 06296, *2 [July 15, 2008]).
To require otherwise would result in a circumstance where an insured who has sued multiple tortfeasors would only be allowed to pursue SUM benefits after he or she had fully exhausted each tortfeasor's insurance policy or, after fully exhausting one of the tortfeasor's policies, had obtained written permission from the SUM carrier to settle for less than the policy limits as to all of the remaining tortfeasors. Where there are multiple tortfeasors and the level of legal responsibility among the various tortfeasors is so dramatically different, it would be virtually impossible to obtain settlements that completely exhaust each applicable policy. In such a circumstance, the SUM carrier would have little or no incentive to give its consent to such a settlement. By the majority's view, the insured would be forced to fully litigate any claims it might have against less culpable tortfeasors in order to preserve its rights to SUM benefits. Such a finding is clearly at odds with that rendered in S'Dao v National Grange Mut. Ins. Co. (87 NY2d at 854-855). There, the plaintiff was injured in a two-car accident and reached settlements with two carriers and did not exhaust the coverage of one of the vehicles involved. The SUM coverage was found to be available even though the limits of the policies held by all of the tortfeasors had not been exhausted.[FN1] [*5]
The majority holds that, once a plaintiff has exhausted the personal injury policy limits as to any one tortfeasor, he or she may access his or her SUM policy as long as the plaintiff has not settled or in any way compromised the SUM carrier's claim against any other tortfeasor. Per such a holding, a plaintiff would have no incentive to ever settle for less than the policy limit with any secondary tortfeasor absent the express consent of the SUM carrier. What is left unanswered by the majority's position is the question of what happens after the SUM claim has been resolved whether a plaintiff must maintain his or her position of no compromise against any and all tortfeasors regardless of their culpability in order to ensure that he or she has not in any way compromised the award that it has already received from the SUM carrier. This position, in my view, is dramatically at odds with the longstanding goal of creating an environment that is designed to result in responsible settlements of this type of litigation.
The effect that this has is to discourage settlements in this type of litigation and to invite indeed command a plaintiff's counsel to fully litigate any and all personal injury claims that it might have against any and all tortfeasors. Clearly, this is not the result that was intended by the Legislature when it enacted these provisions and, in my view, it constitutes a waste of precious judicial resources.
Moreover, such a result is clearly at odds with the overriding purpose of SUM coverage, which, as stated in the instant SUM policy, is to provide compensatory damages that an insured is legally entitled to recover from the owner or operator of an underinsured motor vehicle that, as a result of his or her negligence, has caused the insured bodily injury. Here, the party primarily responsible for respondent's injuries was underinsured. SUM coverage is specifically designed to address such a circumstance and to provide an injured party with access to coverage that will insure that he or she is properly compensated for the injuries that he or she sustained as a result of such other party's negligence. The purpose of such coverage would clearly be frustrated when, as a practical matter, access to a SUM policy could only be obtained when the policy limits of each and every tortfeasor involved in the accident has been fully exhausted. In addition, such a result is inherently inconsistent with the purpose of the settlement mechanism erected within the release and advance provisions of the SUM policy.
Moreover, the majority's position is, in my view, contrary to the stated purpose of Regulation 35-D (see 11 NYCRR 60-2.0 et seq.). Regulation 35-D was promulgated in response to preregulation SUM endorsements that provided for "different methods of claim settlement and arbitration" that would "create confusion in the process and, as a result, diminish the utility of SUM coverage" (11 NYCRR 60-2.0 [b] [emphasis added]). The regulation was enacted to establish "a standard form for SUM coverage, in order to eliminate ambiguity, minimize confusion and maximize its utility" (11 NYCRR 60-2.0 [c] [emphasis added]). If the majority's view accurately states the law of this state, it is difficult to imagine how, in situations involving multiple tortfeasors, SUM benefits could ever be effectively obtained and, as a result, such a view fails to comport with the regulation's stated purpose.
Finally, respondent should not, in my view, be penalized because she had the misfortune to be involved in an accident that involved more than one wrongdoer. Had she only brought suit against the primary tortfeasor and settled against him under precisely the same circumstances while forgoing her right to sue others that were involved in this accident, respondent would clearly have been entitled to make this claim under her SUM policy. As a result, I would reverse and deny petitioner's application to stay arbitration.
ORDERED that the order is affirmed, without costs.
Footnotes
Footnote 1: Contrary to petitioner's contention, we consider
respondent's arguments to be preserved for our review as they were raised before
Supreme Court by petitioner's own arguments as well as respondent's memorandum
of law in opposition to petitioner's motion (see e.g. Matter of Mount Sinai
Med. Ctr. v Empire Blue Cross & Blue Shield, 282 AD2d 965, 966 [2001], lv
denied 96 NY2d 719 [2001]).
Footnote 2: The paragraphs of petitioner's policy mirror the terms of
the SUM endorsement prescribed by 11 NYCRR 60-2.3 (f).
Footnote 1: While this matter was litigated prior to the promulgation
of Regulation 35-D (see 11 NYCRR 60-2.0 et seq.), the Court of Appeals,
by footnote, took "note that [R]egulation 60-2.3 (e) (prescribed Supplementary
Uninsured Motorist Endorsement, Conditions para [9]) provides that the condition
precedent to payment is satisfied when the limits of liability 'in regard to any
one person who may be legally liable for the bodily injury sustained by the
insured' . . . are exhausted" (S'Dao v National Grange Mut. Ins. Co., 87 NY2d at
854 n).
Greenman-Pedersen, Inc.,v. Zurich American Insurance Company
Melito & Adolfsen, P.C., New York, N.Y. (Ignatius John Melito
and Robert D. Ely of counsel), for appellant.
Sinnreich & Kosakoff LLP, Central Islip, N.Y. (Jarrett M. Behar
of counsel), for respondent.
DECISION & ORDER
In an action, inter alia, for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff in an underlying personal injury action entitled Byrne v Greenman-Pedersen, Inc., pending in the Supreme Court, New York County, under Index No. 124171/00, the defendant appeals from an order of the Supreme Court, Suffolk County (Spinner, J.), dated December 12, 2007, which denied its motion for a protective order limiting discovery in the action.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was for a protective order with regard to Item No. 7 of the "Plaintiff's Second Request for Discovery and Inspection" and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, the decision and order of this Court on a previous appeal in this matter (see Greenman-Pedersen, Inc. v Zurich Am. Ins. Co., 36 AD3d 664) did not expressly or impliedly limit the issues in this case solely to the question of the plaintiff's reasonable diligence in ascertaining the existence of insurance coverage under the defendant's policy (see generally Enden v Nationwide Mut. Ins. Co., 251 AD2d 283; Phillips v State Farm Fire & Cas. Co., 245 AD2d 359, 360; Ceravole v Giglio, 186 AD2d 170, 170-171). Accordingly, all of the issues in the case remain pending, and the majority of the plaintiff's discovery requests appropriately seek material which is relevant to them.
However, the Supreme Court should have granted a protective order with regard to Item No. 7 of the "Plaintiff's Second Request for Discovery and Inspection." That item, which seeks all documents pertaining to past and current litigation involving the interpretation of certain terms in policies issued by the defendant, is overly broad and would be unduly burdensome to comply with. Moreover, the documents it seeks would be of questionable relevance to the present case or would likely be privileged or confidential (see generally Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531; Amherst Synagogue v Schuele Paint Co., Inc., 30 AD3d 1055, 1056; Astudillo v St. Francis-Beacon Extended Care Facility, Inc.,12 AD3d 469, 470; EIFS, Inc. v Morie Co., 298 AD2d 548, 549).
Leslie Elliot Krause, LLP, New York, N.Y. (Patricia Thornton of
counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Holly E. Peck 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, Kings County (Ambrosio, J.), dated June 18, 2007, 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 affirmed, with costs.
The defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957).
In opposition, the plaintiff failed to raise a triable issue of fact. Initially, the hospital records of the plaintiff, as well as the unaffirmed medical reports of Dr. Abraham Asmamaw, were without any probative value since they were unsworn (see Grasso v Angerami, 79 NY2d 813; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; Pagano v Kingsbury, 182 AD2d 268; see also Mejia v DeRose, 35 AD3d 407).
The submission of the affirmed magnetic resonance imaging reports of Dr. Ayoob Khodadadi merely evinced that as of June 20, 2003, the plaintiff had a herniated disc at C5-C6 and L3-L4, as well as tears in the supraspinatus tendon and anterior labrum of the left shoulder. The mere existence of a herniated disc, and even a tear in a tendon, is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration (see Cornelius v Cintas Corp., 50 AD3d 1085; Shvartsman v Vildman, 47 AD3d 700; Tobias v Chupenko, 41 AD3d 583). The self-serving affidavit of the plaintiff, as well as her deposition testimony, were also insufficient to raise a triable issue of fact (see Casas v Montero, 48 AD3d 728; Shvartsman v Vildman, 47 AD3d 700; Tobias v Chupenko, 41 AD3d 583).
Dr. Randolph Roserion, in his affirmation, failed to raise a triable issue of fact sufficient to defeat the defendant's establishment of entitlement to summary judgment. He relied upon unsworn medical reports in reaching his conclusions (see Malave v Basikov, 45 AD3d 539; Verette v Zia, 44 AD3d 747), and neither his affirmation nor his medical report showed range of motion limitations roughly contemporaneous with the subject accident (see D'Onofrio v Floton, Inc., 45 AD3d 525; Morales v Daves, 43 AD3d 1118; Rodriguez v Cesar, 40 AD3d 731).
Finally, none of the plaintiff's admissible submissions adequately explained a 3½ year gap between when she stopped her initial treatment and her most recent examination (see Pommells v Perez, 4 NY3d 566; Singh v DiSalvo, 48 AD3d 788; Waring v Guirguis, 39 AD3d 741).
The parties' remaining
contentions have been rendered academic.
SPOLZINO, J.P., RITTER, DILLON, BALKIN and LEVENTHAL, JJ., concur.
Mid-Valley Oil Company, Inc. v Hughes Network Systems, Inc.
Rivkin Radler LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F.
Korman, Harris J. Zakarin, and Todd Belous of counsel), for
intervenor plaintiff-appellant.
Cook, Netter, Cloonan, Kurtz & Murphy, P.C., Kingston, N.Y.
(William N. Cloonan of counsel), for defendant third-party plaintiff-respondent.
VoutÉ, Lohrfink, Magro & Collins, LLP, White Plains, N.Y.
(Ralph F. Schoene and Hal Roberts of
counsel), for third-party
defendant-respondent.
DECISION & ORDER
In an action, inter alia, for common-law and contractual indemnification, (1) the intervenor plaintiff appeals from so much of an order of the Supreme Court, Orange County (Owen, J.), dated December 22, 2006, as denied its motion for summary judgment on the supplemental complaint, granted that branch of the cross motion of the defendant third-party plaintiff which was for summary judgment dismissing the supplemental complaint insofar as asserted against it, and granted the motion of North Star Video, Inc., for summary judgment dismissing the supplemental complaint insofar as asserted against it, and (2) the plaintiff appeals, as limited by its brief, from so much of a judgment of the same court entered January 31, 2007, as, upon so much of the order dated December 22, 2006, as denied its motion for summary judgment on the complaint, and granted that branch of the cross motion of the defendant third-party plaintiff which was for summary judgment dismissing the complaint insofar as asserted against it, is in favor of the defendant third-party plaintiff and against it dismissing the complaint, and the intervenor plaintiff separately appeals, as limited by its brief, from so much of the same judgment as, upon the order dated December 22, 2006, is in favor of Hughes Network Systems, Inc., and North Star Video, Inc., and against it, dismissing the supplemental complaint.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to Hughes Network Systems, Inc., and North Star Video, Inc., payable by the appellants.
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 appeals from the judgment (CPLR 5501[a][1]).
This action, inter alia, for common-law and contractual indemnification arises from an underlying personal injury action in which a worker was injured while installing satellite equipment. The injured worker was employed by the third-party defendant, North Star Video, Inc. (hereinafter North Star), while working on property belonging to the plaintiff, Mid-Valley Oil Company, Inc. (hereinafter Mid-Valley). Under a contract between the defendant third-party plaintiff, Hughes Network Systems, Inc. (hereinafter Hughes), and North Star, North Star was hired to perform the installation work. In the underlying action, the injured worker obtained a judgment against Mid-Valley. In this action, Mid-Valley and the intervenor plaintiff, Westport Insurance Corporation, as subrogee of the plaintiff Mid-Valley Oil Company, Inc. (hereinafter Westport), seek, inter alia, common-law and contractual indemnification from Hughes. Hughes, in turn, impleaded North Star, seeking indemnification.
While an owner who establishes that its liability pursuant to Labor Law § 240(1) is purely statutory and vicarious may obtain common-law indemnification (see Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 684-685; Storms v Dominican Coll. of Blauvelt, 308 AD2d 575, 577; see generally Berenson v Jericho Water Dist., 33 AD3d 574), such owner must also prove that the proposed indemnitor was guilty of some negligence that caused or contributed to the accident or, in the absence of any negligence, that the proposed indemnitor had the authority to direct, supervise, and control the work giving rise to the injury (see Perri v Gilbert Johnson Enters., Ltd., 14 AD3d at 684-685). Hughes established its entitlement to judgment as a matter of law on that branch of its cross motion which was for summary judgment dismissing the causes of action for common-law indemnification asserted by Westport and Mid-Valley against it. Hughes demonstrated, prima facie, that it neither was negligent nor had the authority to direct, supervise, or control the work giving rise to the injury (see Benedetto v Carrera Realty Corp., 32 AD3d 874, 875-876; Perri v Gilbert Johnson Enters., Ltd., 14 AD3d at 684-685). In opposition to that branch of the cross motion, Westport and Mid-Valley failed to raise a triable issue of fact as to whether Hughes either was negligent or had the authority to direct, supervise, or control the work giving rise to the injury (see Benedetto v Carrera Realty Corp., 32 AD3d at 875-876; Perri v Gilbert Johnson Enters., Ltd., 14 [*3]AD3d at 684-685). Accordingly, the Supreme Court properly dismissed the claims for common-law indemnification against Hughes that were asserted by Westport and Mid-Valley.
Mid-Valley's claim for contractual indemnification against Hughes also was properly dismissed. Mid-Valley failed to demonstrate that it was a third-party beneficiary of a certain contract (hereinafter the Mobil/Hughes contract) between Hughes and Mobil Oil Corporation. Hughes established, prima facie, that its obligations under the Mobil/Hughes contract for indemnification and to procure liability insurance did not inure to the benefit of Mid-Valley (see generally Mendel v Henry Phipps Plaza W., Inc., 6 NY3d 783, 786; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 336; Walls v City of New York, 48 AD3d 792). In opposition, Mid-Valley failed to raise a triable issue of fact (see generally Mendel v Henry Phipps Plaza W., Inc., 6 NY3d at 786; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d at 336; Walls v City of New York, 48 AD3d 792).
Westport's claim for
contractual indemnification against North Star also was properly dismissed.
Westport failed to demonstrate that it was a third-party beneficiary of a
certain contract between Hughes and NorthStar (hereinafter the Hughes/NS
contract). North Star established, prima facie, that the Hughes/NS contract
expressly provided that there were no third-party beneficiaries thereunder (see
generally Mendel v Henry Phipps Plaza W., Inc., 6 NY3d at 786; Burns
Jackson Miller Summit & Spitzer v Lindner, 59 NY2d at 336;
Walls v City of New York, 48 AD3d 792). In opposition to North Star's
prima facie showing on this claim, Westport failed to raise a triable issue of
fact (see generally Mendel v Henry Phipps Plaza W., Inc., 6 NY3d at 786;
Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d at 336;
Walls v City of New York, 48 AD3d 792).
The parties' remaining contentions either are without merit or need not be
reached in light of our determination.
SKELOS, J.P., SANTUCCI, BALKIN and CHAMBERS, JJ., concur.
