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Dear Coverage Pointers Subscribers

 

What do $70.13 and $1.25 have in common?  The year's high and low stock price for the American International Group.  Hopefully AIG is being stabilized, the stock having closed at its day's high of $2.69 on Thursday. It's unfortunate that the stability does not come without government intervention.

 

It's All About Edu(ma)cation

 

Today, Friday, three of us are doing what we enjoy best, providing educational opportunity for insurance industry claim professionals.

 

Shawn Martin is in Albany teaching at the NYS Bar Association's Law School for Claims Professionals and providing an update on the law of liens and subrogation.  Steve Peiper is providing an update on bad faith and consequential damages at the Buffalo location in the same program and your faithful correspondent is presenting on his favorite topic, late notice issues, in Buffalo as well.  We'd be happy to provide programming at your shop, if you so desire.

 

We Continue to Blush

 

We just received word that six of our partners were selected for inclusion in the upcoming volume of Best Lawyers in America.  It's a nice thing:

 

Ann E. Evanko -- Corporate Law

Robert P. Fine -- Corporate Law, Trust and Estates

Lawrence C. Franco -- Trusts and Estates                            

Dan D. Kohane -- Insurance Law, Commercial Litigation

Harry F. Mooney -- Commercial Litigation, Civil Rights Law

Roger L. Ross -- Real Estate Law

 

Today's Highlight

 

Great case in today's issue on the separate and distinct duties of an additional insured to give notice of an accident to the carrier even where the carrier already has notice from its named insured.

100 Years Ago

One hundred years ago today, on September 19, 1908 the New York Times reported that Mark Twain's home at Redding, Connecticut known as "Innocents at Home," was visited by two professional burglars last night. The wakefulness of Miss Lyons, the humorist's private secretary, was the undoing of the bold crooks and they were captured after a fight on a New Haven train." The thieves stole the sterling silver cutlery

Mr. Clemens today posted this notice on the door of his house:

Notice: To the Next Burglar:

There is nothing but plated ware in this house, now and henceforth. You will find it in that brass thing in the dining room, over the corner by the basket of kittens. If you want the basket put the kittens in the brass thing. Do not make a noise - it disturbs the family. You will find rubbers in the front hall by that thing which has the umbrellas in it - chiffonier I think they call it, or pergola, or something like that. Please close the door. Yours truly,

S. L. CLEMENS.

The burglars were later arrested after a chase from a train and a police officer was shot in the melee. They were charged with burglary and assault, with intent to kill.

Audrey's Angles:

            From the undisputed Queen of No Fault, we offer you these words of introduction:

There is a great mix of cases yet again this edition.  One of my favorite reads is the arbitration decision from Arbitrator McCorry regarding a dispute that arose between counsel and an IME physician, Dr. Katzman.  It begins with the attorney accompanying his client to an IME.  It goes down hill when Dr. Katzman realizes that the attorney is tape recording the examination.  It then proceeds to subterranean depths when the EIP appeared with a nurse at the re-examination.  It is an interesting read but also should be a reminder that everyone should use some common sense judgment in an IME.  I had no issue with a nurse being present, as long as she or he was not disruptive to the exam, but certainly would be objecting to the tape recording of the physician.

 

I have received a lot of requests for the No-fault seminar/CLE brochure.  Again, the seminar is here in Buffalo on November 19th.  Please let me know if you need more information and also let me know if you plan to attend. 

 

Audrey

Audrey A. Seeley

[email protected]

 

Earl's Pearls

Earl Cantwell gives you an early preview of some Federal Rules of Evidence changes approved by Congress, and awaiting the President's signature which will impact civil practice going forward. 

A Salute to Jack Warhop

One hundred years ago today, Jack Warhop played in his first major league game, for the New York Highlanders (later the Yankees).  Warhop was the only player who debuted that day.  Do you have any idea what special distinction has made "Crab" Warhop the answer to a baseball trivia question?  He is not famous for leading the American League in hit batsmen in 1909 (26) and 1910 (18) which he did and he remains the Yankee team leader in that regard (114 in his career).  During the dead-ball era of baseball, he led the American League in home runs allowed in 1914 (8) and 1915 (7) but it was one of the 1915 home runs that keeps his name on the tongue of baseball afficieanados. 

Jack Warhop is known for giving up Babe Ruth's first career home run on May 6, 1915, while Ruth was a member of the Boston Red Sox. Jack Warhop won the game 4-3 while pitching for the New York Yankees. He also was one of the few pitchers in Major League history to ever steal home twice.

Mark Leaves His Mark

We're sad to report that this is Mark Starosielec's last column and we'll miss his regular contributions.  Mark has chosen to join the Social Security Administration and I'm certain they will benefit from his diligence and commitment to excellence. We wish him well.  We have not abandoned our commitment to you on "serious injury" and watch for a new editor of that column by our next issue. 

This Week's Issue:

This week's issue provides a nice variety of late summer pickings:

  • Notice of a Lawsuit Given by the Named Insured Does Not Satisfy the Obligation of an Adverse Additional Insured to Give Notice
  • Duty to Defend Additional Insured is Broad and Based on Complaint.  Good Discussion of Rules Relating to Interpreting Policy Language 

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

Mark Starosielec
[email protected]

 

  • Plaintiff's 90/180 Claim Dismissed Where Plaintiff Was Out of Work for Only 15 Days
  • Second Department Affirms Jury's Finding of Threshold
  • Plaintiff Fails, in Many Different Ways, to Reach the Serious Injury Threshold
  • Question of Fact as to a Fracture, Results in Denial of Defendant's SJ Motion
  • Degenerative Changes in Plaintiff's Spine are not Enough to Meet Threshold 

AUDREY'S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

 

Arbitration

  • Death Did Not Arise Out of Use and Operation of Motor Vehicle
  • Notarized Letter Insufficient to Demonstrate Medical Bill Mailed to Insurer Within 45 Days
  • Lost Wages Denied as Applicant Failed to Demonstrate Injuries Related to Accident
  • Seriously!  Use Common Sense!
  • Anticipatory Repudiation Does Not Apply - What's Anticipatory Repudiation?? 

Litigation

  • Leave to Serve Subpoena on Employee Outside of NYC Properly Denied
  • Sanctions for Failing to Provide Report Upon Written Request - I Think Not
  • Failure to Attend Scheduled EUO Established by Insurer
  • The Denials Were Not Vague or Misleading
  • Issue of Fact on Whether Company was Fraudulently Incorporated
  • Severance of Three Separate Accidents and Three Separate Insurance Policies Appropriate
  • Expert Reliance? 

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper

[email protected]

 

  • Third-Party Practice:  Lack of Contractual Privity can be Overcome Where Terms are Incorporated by Reference 

EARL'S PEARLS

Earl K. Cantwell, II
[email protected]

 

NEW FEDERAL RULE OF EVIDENCE OK'S LEGAL MULLIGANS

 

Well, that's it for this week's offering.  Keep that feedback coming in and see you in a couple of weeks.

 

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
[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

 

9/16/08            1700 Broadway Co. v. Greater New York Mutual Insurance Company

Appellate Division, First Department

Notice of a Lawsuit Given by the Named Insured Does Not Satisfy the Obligation of an Adverse Additional Insured to Give Notice

Under the terms of a CGL policy, the court found that the additional insured had an obligation to give notice to the carrier of a suit as soon as practicable. Here, it took eight months for the AI to give the GL carrier notice and no excuse was offered for the delay.

 

Notice given by the named insured is NOT considered notice by an additional insured where the named insured and additional insured are not aligned in interest, but in fact have adverse interests to one another. Here, the out-of-possession landlord of the premises where the accident in the underlying personal injury action took place, had an interest adverse to the primary insured, the tenant in the premises, from the moment the complaint was served naming them both as defendants. 

Plaintiff and the primary insured were simultaneously served with the summons and complaint, and their interests were adverse at the time the primary insured served defendant with notice of the lawsuit, even though plaintiff and the primary insured had not yet formally served cross claims against each other.

 

 

9/9/08              City of New York v. Philadelphia Indemnity Insurance Co.

Appellate Division, Second Department

Duty to Defend Additional Insured is Broad and Based on Complaint.  Good Discussion of Rules Relating to Interpreting Policy Language

The allegations in the complaint are broad enough to suggest that the City of New York is entitled to additional insures status.  Under the doctrine announced in BP Air Conditioning, the duty to defend an additional insured is based on the allegations in the complaint against it.  An insurer will be called upon to defend whenever the allegations suggest a reasonable possibility of coverage.  When that occurs, the insurer has the burden to establish that the absence of coverage. Policies are to be interpreted "according to the reasonable expectations and purposes of ordinary businesspeople when making ordinary business contracts" and when interpreting an insurance policy, the policy should be read as a whole.

 

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

Mark Starosielec
[email protected]

 

09/11/08          Camacho v. Dwelle

Appellate Division, Second Department

Plaintiff’s 90/180 Claim Dismissed Where Plaintiff Was Out of Work for Only 15 Days

The trial court’s denial of defendant’s threshold motion was reversed where it was established that an Independent Medical Examination of plaintiff revealed a “normal neurological evaluation.”  Further, plaintiff’s 90/180 claim was dismissed where plaintiff only missed 15 days from work.  Finally, the court noted that plaintiff’s treating physician’s report was unable to raise a question of fact where plaintiff was not examined until nearly three years after the incident.

 

09/09/08          Ayala v. Lindy’s Dispatching, Inc.

Appellate Division, Second Department

Second Department Affirms Jury’s Finding of Threshold

Defendant sought review of the trial court’s denial of defendant’s motion for a directed verdict on threshold.  In affirming the trial court’s denial, the Second Department referred to the jury’s verdict that plaintiff had sustained both a significant limitation of use of a body function or system, and had been unable to perform his usual and customary activities for at least 90 of the first 180 days after the incident.

 

09/09/08          Kuchero v. Tabachnikov

Appellate Division, Second Department

Plaintiff Fails, in Many Different Ways, to Reach the Serious Injury Threshold

Plaintiff sought to reverse the trial court’s grant of summary judgment in favor of defendant.  However, in affirming the trial court’s ruling, the Second Department noted that plaintiff failed to present competent medical evidence in admissible form, failed to qualify alleged restrictions on plaintiff’s loss of range of motion, and failed to offer evidence that the loss of range of motion was contemporaneous with the incident giving rise to the lawsuit.   In addition, the Court noted that plaintiff failed to explain the gap of nearly three years in treatment.  Finally, the Court noted that evidence of a herniation does not, standing alone, satisfy the threshold.

 

09/09/08          Ruffino v. Green

Appellate Division, Second Department

Question of Fact as to a Fracture, Results in Denial of Defendant’s SJ Motion

Defendant appealed the denial of his motion for summary judgment.  However, where defendant was unable to establish that plaintiff did not sustain a fracture in the incident giving rise the above-captioned matter, defendant’s motion was doomed.

 

09/09/08          Ciordia v. Luchian

Appellate Division, Second Department

Degenerative Changes in Plaintiff’s Spine are not Enough to Meet Threshold

Defendant’s motion for summary judgment was affirmed where physicians established that plaintiff’s spine had only sustained degenerative changes.  Likewise, plaintiffs’ 90/180 claims were also dismissed where plaintiffs failed to produce evidence that they were unable to perform “substantially all of their daily activities.”

 

AUDREY’S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

 

Arbitration

 

9/16/08            In the Matter of the Arbitration Between Applicant and Respondent

Arbitrator Veronica K. O’Connor (Erie County)

Death Did Not Arise Out of Use and Operation of Motor Vehicle

The Applicant, son and executor of the eligible injured person’s estate, sought reimbursement for ambulance, funeral expenses, the $2,000.00 death benefit under the insurance policy, plus travel costs and attorney’s fees incurred for an appearance at the hearing, when his mother died after exiting a motor vehicle.  The deceased mother was an 88 year old mother who was diagnosed with congestive heart failure and “given 2 months in 2005.”  On May 27, 2007, the decedent was a front seat passenger in a vehicle driven by her daughter.  The motor vehicle was parked in the driveway with the engine turned off and the key removed from the vehicle.  The daughter was also out of the vehicle.  The decedent was heard to have said “oh” or “oh dear.”  The daughter, who was speaking with a neighbor, walked around to the front passenger side of the vehicle and found the decedent face down on the ground.  The decedent was not in the vehicle or even partially in the vehicle at the time she was found.

 

The hospital records and the death certificate indicate that the immediate cause of death was a fractured neck and a significant condition contributing to the death was severe aortic stenosis, congestive heart failure.

 

The assignment arbitrator provided a well reasoned decision in favor of the insurer that the death did not arise out of the use and operation of a motor vehicle and that the decedent was not an eligible injured person.  Relying heavily upon the Walton, Ghoulson cases (if you would like the full cite send me an email at [email protected]) which are the seminal cases on use and operation in the no-fault context.

 

Here, the arbitrator held that the decedent’s death was not proximately caused by the use or operation of a motor vehicle.

 

9/15/08            In the Matter of the Arbitration Between Applicant and Respondent

Arbitrator Thomas J. McCorry (Erie County)

Notarized Letter Insufficient to Demonstrate Medical Bill Mailed to Insurer Within 45 Days

The Applicant, chiropractor, sought reimbursement for services rendered to an eligible injured person arising out of a motor vehicle accident.  The insurer denied the claim on the basis that the Applicant failed to submit the bills for services rendered within 45 days from the date of service.  The Applicant submitted a notarized letter from a woman who generally averred to the office practice of mailing a bill.  The arbitrator determined that this was insufficient because the letter failed to state what position the woman held in the Applicant’s office; whether she was the person who did the actual mailing of the bills; what her responsibility was with respect to mailing; and it was not in affidavit form.  Therefore, the insurer’s denial was upheld.

 

9/12/08            In the Matter of the Arbitration Between Applicant and Respondent

Arbitrator Thomas J. McCorry (Erie County)

Lost Wages Denied as Applicant Failed to Demonstrate Injuries Related to Accident

The Applicant, eligible injured person, was involved in a November 26, 2007, motor vehicle accident and claimed a closed head injury with occiput contusion.  Approximately two months after the accident the Applicant decided to take disability retirement from her employment as a nurse at the Veteran Administration Hospital.

 

The Applicant submitted disability notes from a physician supporting a claim through June 1, 2008.  However, the physician’s notes also indicated on December 12, 2007 that the Applicant returned to work on December 3, 2007 but had a hard time concentrating.  In February 2008, the physician noted that the Applicant had headaches, but not on a daily basis, and her concentration was improved.    The insurer had the Applicant examined by Dr. Hughes, a neurologist, who opined that the Applicant had achieved pre-motor vehicle accident status with the ability to work without restrictions.  The assigned arbitrator found this report persuasive and further noted that the Applicant’s treating physician’s notes never clearly indicated that her claimed continuing disability was due to a concussion sustained in the motor vehicle accident.

 

9/10/08            In the Matter of the Arbitration Between Applicant and Respondent

Arbitrator Thomas J. McCorry (Erie County)

Seriously!  Use Common Sense!

Here’s the Angle:      There are some applicant’s attorneys who grumble and complain about the out of town physicians examining their clients.  The war cry defense attorneys hear is that they are physicians in the insurer’s pocket with guaranteed predispositions to deny any one placed in front of them.  My response is that the retained physician is a licensed physician and the fact he did not reside locally makes no difference and certainly does not indicate what his or her opinion will be.  Also, it must be considered that certain specialties have few if any local physicians that will conduct an independent medical examination.  At any rate, this decision appears to be the result of this conflict boiling over during the IME itself.

 

The decision begins with a general discussion of the complaints from the plaintiff’s bar of the insurer’s retaining physicians from Queens to conduct examinations in Rochester and Buffalo.  The problem arises with long waits and the scheduling of Saturday examinations.  Also, there are complaints of delays in conducting the examinations due to delayed flights and the purported brevity of the exam due to the lack of time.

 

In the case before the arbitrator, the insurer denied the Applicant, eligible injured person, benefits based upon the failure to appear for one IME with Dr. Katzman and then for bringing an unauthorized individual into the second IME.  During the second IME, the applicant attending the examination with a nurse and was advised that this was not allowed.  A third IME was scheduled for which the Applicant failed to appear.

 

Interestingly, at the initial IME with Dr. Katzman, which Applicant attended with counsel, counsel was tape recording the examination.  It was not clear whether Dr. Katzman had been advised by counsel that he was being recorded prior to the examination.  When Dr. Katzman discovered it he advised counsel that recording was prohibited.  This incident was reported to the insurer who sent Applicant’s counsel a letter advising that recording of examinations were prohibited and in the future counsel could only attend the examination as an observer.  

 

It makes sense that the stage was set for what happened when the Applicant appeared at the next IME with a nurse.

 

The assigned arbitrator pointed out to both sides that this case is not a personal injury matter and that the insured is not to be treated as an adversary.  Yet, the assigned arbitrator appreciated and agreed with reluctance that an examination room is not a hearing room.  Further, if an Applicant chooses to attend with a family member, a nurse, or counsel that is not a basis to deny the claim “as long as they do not interfere with the conduct of the exam.”  Rather the parties should be guided by common sense and good will together with an understanding of the process.

 

9/8/08  In the Matter of the Arbitration Between Applicant and Respondent

Arbitrator Thomas J. McCorry (Erie County)

Anticipatory Repudiation Does Not Apply – What’s Anticipatory Repudiation??

I give credit to the Applicant’s counsel who attempted to use a creative way to get around the fact that the medical provider decided not to continue submitting bills to the insurer after a blanket denial.  Creativity still did not persuade the arbitrator.

 

The insurer issued a blanket denial for chiropractic care dated December 22, 2005.  The treating chiropractor upon receipt of the denial simply stopped submitting his bills to the insurer for payment.  The Applicant’s counsel argued that a no-fault action is fundamentally a breach of contract action and therefore ordinary contract principles apply to the case.  Thus, the doctrine of anticipatory repudiation applies and the bills should be paid. 

 

The doctrine of what???  Anticipatory repudiation.  No it is not that thought that goes through your mind when questioning whether you should have had that fourth drink on Friday night either.  The doctrine of anticipatory repudiation applies when a party to the contract, in advance, repudiates the contract in anticipating a breach.  The non-repudiating party, in this case the Applicant’s treating chiropractor, has the option to stop performing under the contract, in this case sending in bills, and sue for breach.  Yeah.  I’m still not seeing it here but let’s hear some more….

 

The insurer argued that this doctrine only applies to contracts of a special nature and in the insurance context repudiation was found when all liability was denied and there was a refusal to pay the loss.  In this case, the insurer only denied chiropractic care and not all liability. 

 

The assigned arbitrator relied upon the well known Insurance Department opinion that places a continuing obligation upon the applicant to submit bills after the denial is issued.  Since the Insurance Department’s interpretation of the insurance regulation is not irrational or unreasonable it will be upheld in deference to the Superintendent’s special competence and expertise in the insurance industry.

 

I note that this case involved an amount exceeding $5,000.00.  We will keep our eyes out for any appeals or trial de novo.

 

Litigation

 

9/10/08            Bronxborough Med., P.C. a/a/o Mohamad Nazir v. Travelers Ins. Co.

Appellate Term, Second Department

Leave to Serve Subpoena on Employee Outside of NYC Properly Denied

The plaintiff sought leave to serve a subpoena on the defendant outside of New York City

compelling an employee of defendant to testify at trial.  Plaintiff’s motion was denied for failure to present a valid reason.  The appellate term affirmed.  A subpoena cannot be served outside of NYC and the adjoining counties unless determined that the interests of justice would be served.  The plaintiff failed to establish this and also failed to set forth the proposed location at which plaintiff sought to serve the subpoena.

 

9/10/08            Careplus Med. Supply, Inc. v. New York Cent. Mut. Fire Ins. Co.

Appellate Term, Second Department

Sanctions for Failing to Provide Report Upon Written Request – I Think Not

In plaintiff’s summary judgment motion it alleged that its billing manager sent letters to the insurer requesting a copy of the peer review referenced in the denial.  Further, the insurer failed to timely comply with the request.  Therefore, the insurer must be precluded from asserting its lack of medical necessity defense.

 

The insurer never refuted the plaintiff’s allegation on the peer review report.

 

The plaintiff’s motion was denied and on appeal the plaintiff argued that the insurer must be sanctioned for failing to timely comply with its request for the peer review report.  The court noted that the insurer is not required, but can, attach a copy of the peer review report to its denial when based upon lack of medical necessity.  Further, the insurance regulations provide for no sanction against an insurer for failing to comply with a written request for the peer review.  The court declined to impose such a sanction explaining that to do so would impose a whole new statutory timeframe, which does not exist, upon an insurer to provide a report.  Moreover, the court pointed out that the plaintiff could have requested the peer review in discovery or could have filed a complaint with the Insurance Department.

 

9/10/08            Eagle Surgical Supply, Inc. v. Progressive Cas. Ins. Co.

Appellate Term, Second Department

Failure to Attend Scheduled EUO Established by Insurer

In opposition and cross-motion to plaintiff’s summary judgment motion the defendant argued that the plaintiff’s assignor failed to appear for a scheduled EUO.  The defendant’s cross-motion was granted and the plaintiff’s motion denied.  On appeal, the plaintiff argued that the defendant failed to comply with the EUO scheduling timeframe for verification when it failed to schedule the EUO within 30 days of the defendant’s receipt of plaintiff’s claim.

 

The defendant received the claim on May 18, 2005 and denied the claim on September 7, 2005, for failure to attend an EUO.  The defendant demonstrated that it mailed scheduling letters on May 25, 2005 and July 5, 2005, by setting forth standard office practices or procedures used to ensure that the items are properly addressed and mailed.  The court held that the date set for the initial EUO, June 27, 2005, was not unreasonable.  The defendant further established that the assignor failed to appear for the EUOs as scheduled.  Accordingly, defendant’s cross-motion was properly granted.

 

9/10/08            Delta Diagnostic Radiology, P.C. v. Progressive Cas. Ins. Co.

Appellate Term, Second Department

The Denials Were Not Vague or Misleading

Plaintiff’s argument on summary judgment that the defendant’s NF-10s were vague and misleading was rejected.  The court held that the NF-10s stated that the defendant was not paying the bill and the entire sum remained in dispute.  Further, Box 33 unequivocally stated that each claim was denied based upon a peer review report which was attached to the NF-10.

 

9/9/08              One Beacon Ins. Group, LLC v. Midland Med. Care, P.C.

Appellate Division, Second Department

Issue of Fact on Whether Company was Fraudulently Incorporated

The insurer’s summary judgment motion was properly denied with respect to the causes of action alleging fraudulent incorporation.  The plaintiff’s submitted sufficient evidence to raise an issue of fact whether Proscan Imaging was actually controlled by a management company owned by unlicensed individuals in violation of the Business Corporation Law.

 

9/2/08              Astoria Quality Med. Supply v. State Farm Mut. Auto. Ins. Co.

Appellate Term, Second Department

Severance of Three Separate Accidents and Three Separate Insurance Policies Appropriate

The decision to grant severance was appropriate in light of the claims arising out of three separate accident and three separate insurance policies.  The court properly determined that a single trial involving three separate accidents with different injuries would pose a danger of being unwieldy and confusing.

 

9/2/08              Supple Mind Acupuncture, P.C. a/a/o Ruth Gaston v. State Farm Ins. Co.

Appellate Term, Second Department

Expert Reliance?

The sole issue at trial was whether plaintiff’s assignor’s alleged injuries were causally related to the accident.  The sole witness for the defendant was an expert who testified, without objection, that the force of the impact was minimal.  Therefore, the injuries could not be causally related.  The expert’s opinion was based upon his review of the MV-104A report, the statement from the drivers of the vehicles, vehicle photographs, and a repair estimate.  The court entered a judgment for the plaintiff on the ground that the expert’s testimony and report rely almost exclusively on hearsay documents and statements.  The court affirmed the judgment and held that while an expert may rely upon out of court material he can do so if it is of a kind accepted in the profession as reliable in forming a professional opinion.  In this case, the expert did not provide any testimony to meet this standard and therefore his testimony and report were inadmissible.

 

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper

[email protected]


09/09/08         
Vargas  v New York City Transit Authority

Appellate Division, Second Department

Third-Party Practice:  Lack of Contractual Privity can be Overcome Where Terms are Incorporated by Reference

Plaintiff commenced this action under Labor Law § 200, Labor Law § 240(1) and Labor Law § 241(6) seeking recovery for personal injuries he sustained when he fell while in the course of his employment with Miller Proctor.  Plaintiff’s Labor Law § 200 claims were dismissed, and the Labor Law § 240(1) and Labor Law § 241(6) claims were permitted to stand on a question of fact.  However, the third-party practice issues are what made this matter noteworthy.

 

As is usually the case in actions similar to this one, at the time summary judgment motions were made against plaintiff, all defendants moved on their respective contractual indemnification claims.  In this instance, owner’s grant of contractual indemnification against the general contractor, Granite, was affirmed.  Likewise, Granite’s order of indemnification against the first subcontractor, Grand Mechanical, was also affirmed.  However, Granite’s claim for contractual indemnification against the second subcontractor and employer of the injured party, Miller Proctor, was denied where Granite and Miller Proctor were neither in contractual privity, nor was Granite a third-party beneficiary to the Grand Mechanical/Miller Proctor purchase order. 

 

Notably, the owner’s claims against Grand Mechanical were deemed to be appropriate even though the owner was not in privity with Grand Mechanical.  This is because the terms of the contract between the Granite and Grand Mechanical specifically incorporated the terms of the owner’s contract with the Granite.  As such, the terms of the owner/Granite contract were also applied to the contract the Granite entered into with Grand Mechanical.  Thus, owner had a right to assert claims directly against Grand Mechanical.   

 

Finally, Grand Mechanical’s attempts to avoid indemnity obligations on the basis that plaintiff’s injury did not arise from Grand Mechanical’s work were struck by the Court when it was established that Grand Mechanical arranged for plaintiff’s employer (and therefore plaintiff) to be on-site at the time of the injury.   

 

EARL’S PEARLS

Earl K. Cantwell, II
[email protected]

 

NEW FEDERAL RULE OF EVIDENCE OK’S LEGAL MULLIGANS

 

            A new amendment to the Federal Rules of Evidence (Rule 502) attempts to bring some regularity into the treatment of privileged records and court rulings on inadvertent waiver. The stated (or assumed) goals are to speed up and reduce the cost of discovery and give protection to clients and lawyers who inadvertently produce privileged or restricted documents in discovery.

 

PERCEIVED BENEFITS OF NEW EVIDENCE RULE 502

REDUCE COSTS OF PRIVILEGE REVIEW.

 

Proposed Evidence Rule 502 may help reduce the cost of discovery in litigation that results from the need to conduct exhaustive privilege reviews before producing information. Congress has adopted Proposed Evidence Rule 502 and it is being sent to the President for consideration

 

Rule Provides Important Protections Against Privilege Waiver.  Proposed Rule 502 provides standards for determining the consequences of disclosing privileged information.

 

Current Law on Waiver is Inconsistent, Uncertain, and Risky. Current law on inadvertent production of documents containing privileged information is varying and uncertain. Under current law, if a single document containing privileged or protected information is produced, the producing party risks waiving the privilege not only as to what was produced but as to all information dealing with the same subject matter.

 

Parties Risk Waiver Even if Conduct is Reasonable. Waiver may be found even if the producing party took reasonable steps to avoid disclosure.  Discovery of electronic information has made privilege review even more expensive and burdensome.

 

No Subject-Matter Waiver: Rule 502, Subdivision (a) provides that if a waiver is found, it applies only to the information disclosed, unless a broader waiver is made necessary by intentional or misleading use of privileged information.

 

Protections Against Inadvertent Disclosure: 502(b) provides that (consistent with the

practice of most federal courts) an inadvertent disclosure of privileged information does not operate as a waiver if the holder took reasonable steps to prevent disclosure and then retrieve

mistakenly disclosed information.

 

Effect on State Proceedings: Subdivision (c) provides that: (1) if there is a disclosure of privileged information at the federal level, then state courts must honor Rule 502 in subsequent state proceedings; and (2) if there is a disclosure of privileged information in a state proceeding, then admissibility in a subsequent federal proceeding is determined by which law is most strongly non-waiver.

 

Orders Protecting Privileged Information Binding on Nonparties: 502 (d) provides that if a federal court orders that disclosure of privileged information does not constitute a waiver, that order is enforceable in federal or state proceedings.

 

Agreements Protecting Privileged Information Binding on Parties: Subdivision (e) provides that parties in a federal proceeding can enter into an agreement providing for mutual protection against waiver. Such agreements bind the signatories without a court order, and bind nonparties if incorporated into a court order.

 

The new rule is yet to be signed into law (soon) and tested (eventually). The desire to speed up and reduce cost of discovery is admirable, but privileged and embarrassing documents just should not be disclosed, whether the disclosure is ultimately deemed a legal waiver or not.

 

 

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.


9/12/08            National Union Fire v. Travelers Indemnity

Seventh Circuit Court of Appeals

Excess Carrier’s Assumption of Primary Insurer’s Defense Obligates it to Pay for Post Judgment Interest under Policy

An excess insurer refused to pay a post-judgment interest order causing primary carrier to initiate action for indemnification. The court held that an excess-insurer assumes a defense when they have selected, paid for, and supervised the attorney who controlled the case on appeal, thereby making them liable for any post-judgment interest.

Submitted by: Amanda R. Goral and David W. Zizik (Zizik, Powers, O'Connell, Spaulding & Lamontagne, P.C.)

 

9/12/08            American Special Risk Management Corp. v. Cahow

Kansas Supreme Court

Adopting Combined "Subjective-Objective Standard" in Evaluating Disclosure of Pre-Existing Situations Potentially Giving Rise to Claim Under E&O Endorsement to Insurance Policy
Where insurer asked applicant to identify facts, circumstances or situations reasonably expected to give rise to a claim, and the policy excluded claims arising from an undisclosed risk, the insurer had to establish that the applicant failed to disclose known information that an objective person would reasonably perceive as a potential risk.

Submitted by: Hilary High, (Hill, Ward & Henderson)

 

9/09/08            RLI Ins. Co. v. Conesco, Inc.

Seventh Circuit Court of Appeals
No Further Insurer Obligations Following Settlement with Insured
The Seventh Circuit affirmed summary judgment in favor of insurer, finding that the insurer was released from any obligation to defend its insured under a liability insurance policy, where the parties had entered into a supplemental settlement agreement. The court rejected the insured’s argument that the supplemental agreement should be interpreted in conjunction with the original settlement agreement. The court held that the supplemental agreement unambiguously superseded the parties’ original agreement and released the insurer from its duty to defend.

Submitted by: Sedgwick, Detert, Moran & Arnold LLP (Bruce D. Celebrezze & Michelle Y. McIsaac)

 

REPORTED DECISIONS

 

City of New York v. Philadelphia Indemnity Insurance Co.


Marshall, Conway, Wright & Bradley, P.C., New York, N.Y.
(Christopher T. Bradley and Christopher J. McGuire of counsel), for
appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y.
(Edward F.X. Hart, William H. Miller,
and Jane L. Gordon of counsel), for
respondent.


DECISION & ORDER

In an action, inter alia, for a judgment declaring that the defendant is obligated to defend the plaintiff as an additional insured in an underlying action entitled Vega v Fox, pending in the United States District Court for the Southern District of New York, under Index No. 05 CV 2286, the defendant appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Solomon, J.), dated January 25, 2007, which, among other things, granted the plaintiff's motion for summary judgment and declared that it is obligated to defend the plaintiff in the underlying action.

ORDERED that the order and judgment is affirmed, with costs.

In this action, inter alia, for a judgment declaring that the defendant is obligated to defend the plaintiff as an additional insured in the underlying action, the plaintiff established its prima facie entitlement to judgment as a matter of law by tendering evidence sufficient to demonstrate, as a matter of law, that it is an additional insured as this term is defined by the subject policy, and that the allegations in the underlying complaint fall within the scope of coverage (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562). The burden then shifted to the defendant to establish the absence of coverage (see Matter of Allstate Ins. Co. v Berger, 47 AD3d 708, 710), which it failed to do.

An insurer's duty to defend its insured is "exceedingly broad" (Colon v Aetna Life & Cas. Ins. Co., 66 NY2d 6, 8) and an insurer will be called upon to provide a defense whenever the allegations of the complaint suggest a reasonable possibility of coverage (see BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d 708, 714). Insurance contracts are read in light of "common speech" (Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390, 398; see Pepsico, Inc. v Winterthur Intl. Am. Ins. Co., 13 AD3d 599, 600) and are to be interpreted "according to the reasonable expectations and purposes of ordinary businesspeople when making ordinary business contracts" (City of New York v Evanston Ins. Co., 39 AD3d 153, 156). In interpreting an insurance policy, the policy should be read as a whole (see MDW Enters., Inc. v CNA Ins. Co., 4 AD3d 338, 341).

Here, the interpretation favored by the defendant reflects "extremely narrow coverage" (City of New York v Evanston Ins. Co., 39 AD3d 153, 157). Such an interpretation would rewrite the policy without regard to the plaintiff's reasonable expectations as expressed in the contract between it and the named insured, and provide a windfall for the defendant (see BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d 708, 716).

Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment and declared that the defendant is obligated to defend the plaintiff as an additional insured in the underlying action (see Borden Leasing v Atlantic Mut. Ins. Co., 22 AD3d 621; Bedford Cent. School Dist. v Commercial Union Ins. Co., 295 AD2d 295; American Bridge Co. v Acceptance Ins. Co., 293 AD2d 634, 636).

1700 Broadway Co. v. Greater New York Mutual Insurance Company


Conway, Farrell, Curtin & Kelly, P.C., New York (Darrel John
of counsel), for appellant.
Thomas D. Hughes, New York (Richard C. Rubinstein of
counsel), respondent.

Order and judgment (one paper), Supreme Court, New York County (Emily Jane Goodman, J.), entered February 19, 2008, which granted defendant's motion to dismiss the complaint and declared it was not required to defend or indemnify plaintiff in an underlying personal injury action, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered May 15, 2008, which denied plaintiff's motion for reargument, unanimously dismissed, without costs, as taken from a nonappealable paper.

Under the terms of a commercial general liability policy issued by defendant, plaintiff, named as an additional insured, was required to give defendant notice of a claim or suit as soon as practicable. Absent a valid excuse, the failure to satisfy this notice requirement, which is a condition precedent to coverage, vitiates the policy (Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 440 [1972]).

It is undisputed that plaintiff did not serve defendant with notice of the underlying personal injury action until eight months after plaintiff was served with the summons and complaint naming it as a defendant therein. Plaintiff has offered no excuse for this delay. Such delay without explanation constituted late notice as a matter of law. Defendant was not required to demonstrate prejudice by reason of the delay in order to disclaim coverage. New York has generally adhered to a no-prejudice rule, which allows a personal injury insurer in commercial general liability cases to disclaim coverage due to late notice of claim regardless of whether or not the insurer suffered any harm by reason of the delay (see Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332 [2005]).[FN1]

The named insured cannot be deemed to have provided timely notice of the lawsuit to defendant on behalf of plaintiff since the notice requirement in the policy applies equally to both primary and additional insureds, and notice provided by one insured in accordance with the policy terms will not be imputed to another (Travelers Ins. Co. v Volmar Constr. Co., 300 AD2d 40, 44 [2002]). An exception might exist where two claimants are similarly situated, i.e., where their interests are not adverse to each other, in which case notice by one may also be deemed applicable to a claim by another (see e.g. Motor Vehicle Acc. Indem. Corp. v United States Liab. Ins. Co., 33 AD2d 902 [1970]). Here, plaintiff, an out-of-possession landlord of the premises where the accident in the underlying personal injury action took place, had an interest adverse to the primary insured, the tenant in the premises, from the moment the complaint was served naming them both as defendants. This adversity was confirmed when plaintiff and the primary insured filed cross claims against each other. Under these circumstances, notice of suit by the primary insured cannot be deemed timely notice by plaintiff.

In New York Tel. Co. v Travelers Cas. & Sur. Co. of Am. (280 AD2d 268 [2001]), cited by plaintiff, the focus was on the time the primary insured forwarded the complaint to the insurer. There the primary and additional insureds' interests were not adverse when the former was initially served with the summons and complaint in the underlying action. Here, plaintiff and the primary insured were simultaneously served with the summons and complaint, and their interests were adverse at the time the primary insured served defendant with notice of the lawsuit, even though plaintiff and the primary insured had not yet formally served cross claims against each other.

Kuchero, v Tabachnikov

 


Barry Richard Feldman, LLC, Brooklyn, N.Y., for appellant.
James G. Bilello, Westbury, N.Y. (Ahmed Elzoghby of
counsel), for respondents Steven
Tabachnikov and Alexander Freyman.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Holly E. Peck of counsel), for
respondents Mario Duplessis and Riteway 1,
Inc.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated December 22, 2006, which granted the motion of the defendants Steven Tabachnikov and Alexander Freyman, and the separate motion of the defendants Mario Duplessis and Riteway 1, Inc., for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with one bill of costs.

The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact. The affirmed medical report of Dr. Sergey Lugina, one of the plaintiff's treating physicians, noted that the plaintiff was examined in his office on February 4, 2003, and found to have restricted range of motion in the cervical and lumbar regions of the spine. However, Dr. Lugina failed to adequately quantify those restrictions (see Duke v Saurelis, 41 AD3d 770; Desamour v New York City Tr. Auth., 8 AD3d 326).

The affirmation of Dr. Viktor Gribenko, another of the plaintiff's treating physicians, failed to raise a triable issue of fact. While Dr. Gribenko noted significant limitations in the plaintiff's range of motion in the cervical region of the spine as of December 13, 2006, neither he nor the plaintiff proffered competent medical evidence showing any cervical range of motion limitations that were even 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; Borgella v D & L Taxi Corp., 38 AD3d 701). Without admissible evidence of roughly contemporaneous range of motion limitations, the plaintiff could not have established the duration of the injuries required to raise a triable issue of fact as to whether he sustained a serious injury under the permanent consequential limitation or significant limitation of use categories of the no-fault statute (see Ferraro v Ridge Car Serv., 49 AD3d 498).

The medical report of Dr. Robert Solomon, the plaintiff's treating radiologist, merely revealed that as of February 7, 2003, the plaintiff had a herniated disc at C5-6. The mere existence of a herniated 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 injury and its duration (see Cornelius v Cintas Corp., 50 AD3d 1085; Shvartsman v Vildman, 47 AD3d 700).

Contrary to the plaintiff's assertion, neither he nor his experts reasonably explained the lengthy gap in his treatment between the time he stopped treatment in April 2003 and his most recent examination by Dr. Gribenko in December 2006 (see Pommells v Perez, 4 NY3d 566; Cornelius v Cintas Corp., 50 AD3d 1085; Berktas v McMillian, 40 AD3d 563; Waring v Guirguis, 39 AD3d 741; Phillips v Zilinsky, 39 AD3d 728).

The plaintiff failed to set forth any competent medical evidence to establish that he sustained a medically-determined injury of a nonpermanent nature which prevented him from performing his usual and customary activities for 90 of the 180 days following the subject accident (see Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Sainte-Aime v Ho, 274 AD2d 569).
RIVERA, J.P., LIFSON, MILLER, CARNI and ENG, JJ., concur.

ENTER:

James Edward Pelzer

Camacho v Dwelle




Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y.
[Marshall D. Sweetbaum], of counsel), for appellant John H.
Dwelle 3rd.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for
appellants Elmer Rivas and Norman Castro.
William Pager, Brooklyn, N.Y., for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Elmer Rivas and Norman Castro appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated October 25, 2007, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and the defendant John H. Dwelle 3rd separately appeals, as limited by his brief, from so much of the same order as denied his separate motion for the same relief.

ORDERED that the order is reversed, on the law, with one bill of costs payable to the defendants appearing separately and filing separate briefs, and the defendants' motions for summary judgment dismissing the complaint are granted.

The plaintiff was involved in a motor vehicle accident in November 2004 on the Brooklyn-Queens Expressway in Brooklyn. He subsequently instituted this action to recover damages for the resulting personal injuries.

After issue was joined, the defendants Elmer Rivas and Norman Castro moved for summary judgment, contending that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and the defendant John H. Dwelle 3rd separately moved for the same relief, in reliance on the same medical evidence submitted by Rivas and Castro. The movants established, prima facie, that the plaintiff's injuries were not serious through the affirmed medical report of a physician who examined him and concluded that he had a normal neurological evaluation (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). Contrary to the plaintiff's contention, since he did not allege in his complaint or bill of particulars that he injured his right shoulder in the subject motor vehicle accident, and did not move for leave to amend the bill of particulars to assert such an allegation, the defendants' physician was not required to examine that part of the plaintiff's body (see Sharma v Diaz, 48 AD3d 442). Furthermore, by submitting the plaintiff's deposition testimony that he missed only 15 days of work as a result of the accident, the defendants demonstrated that the plaintiff was able to perform "substantially all" of the material acts constituting his customary daily activities for more than 90 days of the first 180 days subsequent to the accident (Insurance Law § 5102[d]; see Bartley v Trans Car & Limo, 41 AD3d 624).

The only admissible medical evidence that the plaintiff submitted in opposition to the separate motions, an affirmed report prepared by Dr. Mark Kostin, failed to raise a triable issue of fact (see CPLR 3212[b]). As Dr. Kostin did not examine the plaintiff until almost three years after the accident, neither he nor the plaintiff proffered competent medical evidence of initial range-of- motion restrictions contemporaneous with the accident (see Lea v Cucuzza, 43 AD3d 882). In addition, the plaintiff could not rely upon the unsworn, unaffirmed medical reports cited by Dr. Kostin in his affirmed report (see Friedman v U-Haul Truck Rental, 216 AD2d 266).

Accordingly, the Supreme Court should have granted the defendants' motions for summary judgment dismissing the complaint.
FLORIO, J.P., ANGIOLILLO, McCARTHY and DICKERSON, JJ., concur.

Ayala v Lindy's Dispatching, Inc.,


Scott Baron & Associates, P.C., Howard Beach, N.Y. (Stephen D.
Chakwin, Jr., and Andrea R. Palmer of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from a judgment of the Supreme Court, Queens County (Agate, J.), entered June 13, 2007, which, inter alia, upon the denial of their motion pursuant to CPLR 4401 for judgment as a matter of law made at the close of the plaintiff's case, upon a jury verdict finding that the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) and awarding the plaintiff damages in the principal sums of $200,000 for past pain and suffering and $17,000 for future pain and suffering, and upon so much of an order of the same court entered May 16, 2007, as denied that branch of their motion pursuant to CPLR 4404(a) which was to set aside the verdict and for judgment as a matter of law, is in favor of the plaintiff and against them in the principal sum of $217,000.

ORDERED that the judgment is affirmed, with costs.

Contrary to the plaintiff's contention, the appeal from the judgment brings up for review both the denial of the defendants' motion pursuant to CPLR 4401 and the subsequent order entered May 16, 2007, denying that branch of the defendants' motion pursuant to CPLR 4404(a) which was to set aside the verdict and for judgment as a matter of law (see CPLR 5501[a][1]).

After the trial on damages, the jury returned a verdict finding that, as a result of the subject motor vehicle accident, the plaintiff suffered a significant limitation of use of a body function or system and also sustained a medically-determined injury of a nonpermanent nature which prevented him, for 90 of the 180 days following the subject accident, from performing his usual and customary activities. We find that there was a valid line of reasoning and permissible inferences which could lead rational persons to the conclusions reached by the jury upon the evidence presented at trial (see Szczerbiak v Pilat, 90 NY2d 553, 556; Tapia v Dattco, Inc., 32 AD3d 842, 843-844). Accordingly, we affirm the judgment.
SKELOS, J.P., COVELLO, LEVENTHAL and BELEN, JJ., concur.

 

Ruffino v Green


Herzfeld & Rubin, P.C., New York, N.Y. (David B. Hamm and
Linda M. Brown of counsel), for appellants.
Daniel P. Buttafuoco & Associates, PLLC, Woodbury, N.Y.
(Ellen Buchholz of counsel), for
respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Richard D. Green and DMGT Telecommunications, Inc., appeal from an order of the Supreme Court, Nassau County (Woodard, J.), dated May 30, 2007, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The appellants failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY 345; Gaddy v Eyler, 79 NY2d 955, 956-957; Newberger v Hirsch, 49 AD3d 700; Page v Belmonte, 45 AD3d 825; Tchjevskaia v Chase, 15 AD3d 389). The report prepared by Dr. Adam Silvers regarding a magnetic resonance imaging of the plaintiff's lumbar spine taken approximately one month after the accident, which the appellants submitted in support of their motion, raised a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324) as to whether the plaintiff sustained a fracture in the subject motor vehicle accident (see Insurance Law § 5102[d]). Under these circumstances, it is unnecessary to consider the sufficiency of the plaintiff's opposition papers (see Tchjevskaia v Chase, 15 AD3d at 389).
RIVERA, J.P., LIFSON, COVELLO and BALKIN, JJ., concur.

Ciordia v Luchian


Cheven Keely Hatzis, New York, N.Y. (Mayu Miyashita of
counsel), for appellant Sabir Brdarevic.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Holly E. Peck of counsel), for
appellants Daniela Luchian and Kazi
Asaduzzaman.
Russo, Darnell & Lodato, LLP, East Meadow, N.Y. (Adam W.
Weiss of counsel), for respondents.


DECISION & ORDER

In action to recover damages for personal injuries, the defendants Daniela Luchian and Kazi Asaduzzaman appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated October 26, 2007, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d), and the defendant Sabir Brdarevic separately appeals, as limited by his brief, from so much of the same order as denied his separate motion for the same relief.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable to the appellants appearing separately and filing separate briefs, and the defendants' separate motions for summary judgment dismissing the complaint are granted.

The defendants made a prima facie showing that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident in June 2005 (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiffs failed to raise a triable issue of fact (see D'Alba v Yong-Ae Choi, 33 AD3d 650). Crucially, the affirmed reports of the plaintiffs' examining physicians failed to address the findings of the defendants' examining radiologist, which attributed the condition of the plaintiffs' lumbosacral spines to degenerative processes (id. at 651). The plaintiffs also failed to proffer competent medical evidence that they were unable to perform substantially all of their daily activities for not less than 90 of the first 180 days subsequent to the accident (see Letellier v Walker, 222 AD2d 658).
MASTRO, J.P., FLORIO, DICKERSON and BELEN, JJ., concur.

ENTER:

 

 

Vargas  v New York City Transit Authority



Smith Mazure Director Wilkins Young & Yagerman, P.C.,
New York (Kisha Augustin of counsel), for New York City
Transit Authority, respondent-appellant/respondent-appellant.
Alexander J. Wulwick, New York, for Ramon Vargas,
respondent.
Mound Cotton Wollan & Greengrass, New York (Todd A.
Bakal of counsel), for Granite Halmar Construction Company,
Inc., appellant-respondent/appellant-respondent.
Cerussi & Spring, PC, White Plains (Peter Riggs of counsel),
for Atlantic Rolling Steel Door Corp., respondent-appellant.
Barry, McTiernan & Moore, New York (Laurel A. Wedinger
of counsel), for Grand Mechanical Corp., respondent.
Rende Ryan & Downes, LLP, White Plains (Roland T. Koke of
counsel), for Miller Proctor Nickolas, Inc., respondent.

Orders, Supreme Court, Bronx County (Janice Bowman, J.; Barry Salman, J.), entered June 12, 2007 and February 19, 2008, which, to the extent appealed from, granted motions for summary judgment dismissing the complaint only to the extent of dismissing the cause of action under Labor Law § 200 while denying such motions insofar as addressed to the causes of action under Labor Law § 240(1) and § 241(6) and common-law negligence, denied the motion by defendant/third-party plaintiff-respondent-appellant New York City Transit Authority (NYCTA) for summary judgment on its third-party claim for contractual defense and indemnification against third-party defendant/second third-party plaintiff-appellant-respondent Granite Construction Northeast, Inc. f/k/a Granite Halmar Construction Company, Inc. f/k/a Halmar Builders of New York, Inc. (Granite), denied Granite's motion for summary judgment on its third-party claims for contractual defense and indemnification against second third-party defendant-respondents Grand Mechanical Corp. (Grand Mechanical) and Miller Proctor Nickolas, Inc. (Miller Proctor), denied the motion by second third-party defendant-respondent-appellant Atlantic Rolling Steel Door Corp. (Atlantic) for summary judgment dismissing Granite's third-party claim and all cross claims against it, and granted Grand Mechanical's and Miller Proctor's respective cross motions for summary judgment dismissing Granite's third party claims and all cross claims against them, unanimously modified, on the law, to dismiss the cause of action for common-law negligence, to grant NYCTA summary judgment as to liability on its third party claim against Granite for contractual defense and indemnification, to grant Granite summary judgment as to liability on its third party claim for contractual defense and indemnification against Grand Mechanical, to grant Atlantic summary judgment dismissing Granite's third-party claim and all cross claims against it, and to deny Grand Mechanical's cross motion to the extent it sought dismissal of Granite's third party claim for contractual defense and indemnity against it and dismissal of NYCTA's cross claims against it for contractual defense and indemnity and breach of contract, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of Miller Proctor and Atlantic dismissing the second third-party complaint and all cross claims as against them.

The subject incident occurred in the course of the construction of a bus maintenance facility owned by NYCTA. Granite, the project's general contractor, hired Grand Mechanical as the HVAC subcontractor. Grand Mechanical hired Miller Proctor to commission, or start up, the facility's boilers. In March 2001, after the boilers had been commissioned, Grand Mechanical called Miller Proctor to address a leak in one of them. Plaintiff, the Miller Proctor employee sent to respond to the call, alleges that, because his employer did not provide him with a ladder, and no others were available at the site, he borrowed one from employees of Atlantic, the project's rolling door subcontractor. Plaintiff further alleges that, because the
A-frame ladder provided by Atlantic, when opened, was not tall enough to enable him to reach the top of the boiler, he climbed the ladder while it was closed and leaning on the spherical boiler. Plaintiff was injured when the ladder collapsed while he was climbing it in this fashion.

As plaintiff does not challenge the dismissal of his cause of action under Labor Law § 200, and as section 200 is merely a codification of the common-law duty imposed on owners and general contractors to maintain a safe construction site (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]), we modify to dismiss plaintiff's causes of action against the owner and general contractor for common-law negligence. However, the motions to dismiss the causes of action under Labor Law § 240(1) and
§ 241(6) were correctly denied. The record does not establish, as a matter of law, that plaintiff's acts were the sole proximate cause of the accident, given the evidence that the unsecured ladder on which he was standing collapsed and that no other safety devices were provided (see Vega v Rotner Mgt. Corp., 40 AD3d 473 [2007], citing Velasco v Green-Wood Cemetery, 8 AD3d 88, 89 [2004]), although there was also countervailing evidence. Contrary to the arguments of NYCTA and the third-party defendants, Labor Law § 240(1) expressly covers "repairing" a building or structure. As to Labor Law § 241(6), Industrial Code (12 NYCRR) § 23-1.21(b)(4)(iv) is both applicable and sufficiently specific to support a claim under the statute (see Montalvo v J. Petrocelli Constr., Inc., 8 AD3d 173, 176 [2004]).

Regarding the third-party claims, the record establishes that NYCTA is entitled to contractual indemnification and defense from Granite, and that Granite is entitled to contractual indemnification and defense from Grand Mechanical, in each case pursuant to the plain terms of the applicable written agreement between the two parties. Since the record contains no evidence that plaintiff's injuries resulted from negligence on the part of either NYCTA or Granite, there is no statutory bar to enforcement of these indemnity agreements. We note, however, that Granite's claim for indemnity and breach of contract against Miller Proctor was correctly dismissed, since Granite and Miller Proctor were not in contractual privity with each other, and the purchase orders constituting the agreements between Grand Mechanical and Miller Proctor do not make Granite a third-party beneficiary thereof, nor do such agreements incorporate by reference the terms of the subcontract between Granite and Grand Mechanical. We reject Grand Mechanical's argument that plaintiff's injuries did not arise from Grand Mechanical's work for the project, since the record establishes that Miller Proctor sent plaintiff to the work site at Grand Mechanical's request, pursuant to the purchase orders between Grand Mechanical and Miller Proctor. Since Grand Mechanical has not taken an appeal, we are without power to grant its request that its cross claim against Miller Proctor be reinstated in the event we reinstate Granite's third-party claim against Grand Mechanical (see Hecht v City of New York, 60 NY2d 57 [1983]). We note that no argument has been advanced in favor of the viability of a claim for common-law indemnity or contribution against Miller Proctor, which appears to be immunized from such liability by Workers' Compensation Law § 11, given that plaintiff does not allege a "grave injury" under that statute.

After Grand Mechanical was impleaded into the action, NYCTA asserted cross claims against it for contractual defense and indemnity and for breach of contract, the latter based on Grand Mechanical's alleged failure to procure contractually required insurance coverage for NYCTA. We agree with NYCTA's argument that Supreme Court erred in dismissing these cross claims against Grand Mechanical. The subcontract between Granite and Grand Mechanical expressly incorporated by reference the terms of the prime contract between NYCTA and Granite and made Granite's obligations under the prime contract binding on Grand Mechanical. Accordingly, such cross claims by NYCTA against Grand Mechanical are reinstated.

Finally, Atlantic was entitled to dismissal of all claims against it. The record establishes that Atlantic, the rolling door subcontractor, was not in contractual privity with plaintiff's employer, that it had no supervision, direction or control over plaintiff's work, and that it had no [*4]duty to provide him with equipment adequate for the performance of his work. Accordingly, plaintiff's injuries did not arise from Atlantic's work, and were not caused by any fault attributable to Atlantic.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 9, 2008