New Page 1

Dear Coverage Pointers Subscribers:

 

Coverage, Angles, Musings, Property, Potpourri and Pearls

It's a fun issue, for those who enjoy the wonderful tedium of insurance coverage. I offer you a couple of juicy late notice cases, a rescission case that shouldn't have been, an "other insurance" case, an interesting intervention attempt, another concluding that the insured is presumed to actually read the policy and be bound by its terms and a whole raft of No Fault policy interpretation and appeal cases for your perusal.  In addition, Audrey offers you her angles on No Fault, Margo serve up her second set of musings on Serious Injury, Steve pipes in with first party and potpourri and Earl demystifies metadata."

 

DRI Annual Meeting: French Quarter, Anyone?

We hope to see some of you at the DRI Annual Meeting in New Orleans, next week.  Please let me know if you're going to be in attendance because the Federation of Defense & Corporate Counsel is having a cocktail party and if (and only if) you enjoy that kind of thing, I'm sure I can wrangle you an invitation.

 

Litigation Colleges Announced
Speaking of the FDCC, that organization is pleased to announce the Fifteenth Annual Litigation Management College and the Sixth Annual Litigation Management College Graduate Program at the Emory University Conference Center in Atlanta, Georgia, from June 14-18, 2009.  Brochures outlining the details of the programs and containing applications for admission will be posted on the FDCC website this fall at www.thefederation.org .


A Jaunting We Will Go
 

Had a wonderful visit to northern New Jersey on Tuesday where we presented on NY Notice Issues under Liability Policies and Constructing the Disclaimer Letter. A very attentive and interactive audience was supplemented by especially delicious Danish. 

 

Thanks for Your Kindness
Margo Lagueras, the newest member of our coverage team, and the scribe of our Serious Injury column called Margo's Musings, received the nicest welcome notes from a number of you following her premier column last issue.  It's all about relationships.  Thanks for taking the time to write to her

 

It's All About Training, No? 

Again, our coverage team is at the ready (as are our teams) to visit your location and help empower your claims professionals.  Suggested topics include the following, but we can merge, mold, alter or add as you might need:

 

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

Women's Rights 

With Election Day right around the corner and Tina Fey or her double at near top of one of the tickets, it's good to reflect on where we were 100 years ago.  A century ago, today, this was an article on the front page of the Lowell (Massachusetts) Sun, about a Buffalo conclave:

 

BUFFALO. NY. Oct. 17, 1908 - That an unusual effort will be made this year to obtain from Congress some recognition of woman suffrage is certain.  The advisability of this course has been urged by many of the prominent speakers at the convention of the National American Women Suffrage Association held in Buffalo and today there was a round-table discussion of the subject: "Washington as a Center for Suffrage Work."  Aside from the regular session of the Association, prominent figures in women's education work today organized a branch to be known as the College Suffrage Association.

 

Editor's Note:  The National College Equal Suffrage League worked from 1908 to 1917 to spark political awareness and activism among collegiate woman according to the Historical Dictionary of Women's Education in the United States

 

From Audrey Seeley, the Queen of No Fault: 

This edition brings many decisions on issues we have seen time and again - sufficiency of plaintiff's and defendant's evidence on summary judgment.  One interesting decision from the Appellate Division, Second Department considers an appeal from a judgment in a de novo action.  The insurer lost in two proceedings in arbitration.  The insurer sought trial de novo and in a bench trial obtained a judgment that it was not obligated to pay medical and lost wage benefits to the eligible injured person.  Unfortunately, the Appellate Division reviewed the medical experts' testimony and held that the insurer's expert's opinion was speculative due to a limited review of records of the eligible injured person.  Ultimately, the insurer was only held responsible for expenses for a few days in the hospital but not for lost wages.

 

Remember it's not too late to sign up for the no-fault seminar presented by NBI on November 19th in Buffalo.  It is a pure no-fault, not serious injury threshold, seminar.  It was have Upstate counsel, plaintiff and defense counsel, addressing Upstate issues such as arbitration, litigation, claims handling, and recent case law developments.  I will speak on arbitration and the recent case law developments.  I think that many individuals who are located downstate but handle upstate files or cases will find it informative.  As many of you know the practices downstate and upstate vastly differ.  Plus you will get to meet and ask questions of plaintiff and defense counsel who routinely handle upstate files.  If you would like a brochure please let me know.

  

Audrey Seeley

[email protected]

 

NY Times Crime Report 

One hundred years ago today, we found this story on the front page of the New York Times, reporting on what might have been considered a major crime at the time:

 

ACQUITS WOMAN AUTOIST

Jury Preferred Her Speedometer to Constable's Word

 

PORT JERVIS - October 17.  Miss Hazel MacKenzie, daughter of the late James McKenzie, was acquitted of the charges of having violated the ten-mile an hour speed limit in Sparrowsburg, two miles from here, this afternoon.

 

The young woman was arrested by Constable Theodore Welse on her way to New York from MacKenzie summer home at Glen Spey, Sullivan County.  She was driving a touring car in which her {her sister and cousin were passengers.  At the jury trial before Justice of the Peace, William H Gregg this afternoon, there was a question of fact between the constable's stop watch which registered twenty miles per hour and the speedometer of the automobile which registered between nine and ten miles.

 

The young women also claimed that they had been warned that the state laws were being enforced at this point.  Local automobilists were present in numbers.

 

Editor's Note:  It appears that Hazel's father James was one of the three sons of George Ross MacKenzie, one of the founders and pioneers of the Singer Sewing Machine Company. 

 

We're so Sorry, Uncle Albert . 

Our friends up north, in Ontario, are among the nicest one can ever meet.  A concern has been raised, however, that Canadians have become fearful of apologizing after accidents as that apology may end up as proof against them in a subsequent lawsuit.  Accordingly, legislation has been proposed to adopt an Apology Act in Ontario, and this is from the press release announcing the proposal:

 

NEW LAW REDUCES LEGAL BARRIERS TO APOLOGIES

McGuinty Government Proposes Apology Act

 

Under current law, people and organizations can be reluctant to apologize for an accident or wrongdoing, out of fear that the apology will be used against them as evidence of liability in a civil court proceeding. This reluctance to apologize harms the relations between people and can lead to bitterness and increased litigation.

 

Being able to offer a sincere apology without legal consequences can help resolve disputes and reduce the number of lengthy, costly lawsuits. For a victim, a timely apology is often an important step in the healing process and a potential springboard to discussions to settle disputes.

 

Today the McGuinty government is introducing legislation [applicable to all civil litigation] that would allow people and organizations to apologize without fear of the apology being used against them. Being able to offer a sincere apology without legal consequences can take away hard feelings, help resolve disputes, and reduce the number of lengthy, costly lawsuits.

 

The Apology Act would, if passed:  

·        Allow individuals and organizations, such as hospitals and other public institutions, to apologize for an accident or wrongdoing, without it being used as evidence of liability in a civil legal proceeding under provincial law ;

·        Help victims by acknowledging that harm has been done to them - an apology is often key to the healing process

·        Promote accountability, transparency and patient safety by allowing open and frank discussions between patients and health care providers

·        Enhance the affordability and speed of the justice

 

This Week's Headlines and Highlights

 

In this week's issue, you'll find summaries of the following appellate decisions:

 

  • Timely Notice to Worker Compensation / Employers Liability Carrier of Accident Does not Satisfy Separate Obligation to Notify Insurer of Suit
  • Late Notice Defense Upheld.  Notice to Broker is Not Notice to Insurer
  • Perhaps Unaware of Past Case Law Prohibiting Rescission of Auto Liability Policies,  Court Stays SUM Arbitration Finding Liability Policy Fraudulently Obtained
  • When Does the 90-day Statute of Limitations for a Judicial Challenge of a Master Arbitration Decision Begin to Run?  It's the Date of Receipt, not the Date of Mailing
  • Failure to Mention Exclusion in Applicable Policy Not Excused by Mentioning it in Wrong Policy
  • No Contribution between Carrier Permitted if they Do Not Insure Same Risk at Same Time
  • Intervention by Liability Carrier with SIR in Policy Inappropriate when Insurer Can Protect Itself by Defending
  • Insured has Presumptive Conclusive Knowledge of Contents of Policy and Limitations of Coverage.  Coverage Lawsuit and E&O Claim Against Agent are Dismissed
  • Under Insurance Law Section 5106, de novo No Fault Law Permits New (de novo) Proceeding if Master Arbitrator Awards More than $5000

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

Margo M. Lagueras
[email protected]

 

  • Affirmed: Reports of Findings Not Contemporaneous With the Accident Are Insufficient to Prove Serious Injury Resulting From Such Accident
  • Objective Medical Evidence of Serious Injury Not Required to Oppose Summary Judgment Motion Which Only Asserts Causal Relationship
  • Reversed, On the Law: Failure to Acknowledge Two Other Accidents Resulting in Similar Injuries in a Medical Report Defeats That Report As Speculative
  • Objective Basis For Conclusion and Test Performed to Induce Spasm Are Necessary For Spasm to Constitute Evidence of Serious Injury
  • Inability to Afford Treatment Due to Cut-Off of No-Fault Benefits Adequately Explains Gap in Treatment
  • No Triable Issue of Fact Found Where No Opinion is Given as to Cause of Disc Bulges
  • Treating Neurologist's Affirmation is Sufficient to Raise Triable Issue of Fact and Defeat Summary Judgment
  • Defendants Fail to Meet Prima Facie Burden Due to Medical Report's Failure to Set Forth Objective Testing Performed
  • Physician's Affirmation Contradicting Recommendation in Contemporaneous Reports is Not Acceptable
  • Complaint Dismissed Where Plaintiff's Neurologist Contradicts His Own Tests
  • Dismissal Affirmed: Plaintiff Fails Under Both "Significant Limitation of Use" and "90/180" Categories
  • Future Pain and Suffering Award For Right Knee Injury Affirmed
  • Complaints Inconsistent With Non-Physiologic Findings Fall On Deaf Ears 

AUDREY'S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

 

Arbitration

  • One Year Rule Applied When Discovered EIP Had Three Subsequent Accidents.

Litigation

  • Insurer Granted Summary Judgment On Outstanding Verification In One of Three Items
  • Failure To Make Connection Between Employee Affidavit And Documents Being Business Records Fatal to Motion
  • Default Judgment Vacated When Insurer Never Received Complaint Until After Default Entered
  • De Novo Judgment In Insurer's Favor Upheld Except Medical Expenses
  • Inadmissible Chiropractor's Report Does Not Preclude Summary Judgment For Plaintiff
  • Insurer Prevails on Acupuncture Fee Schedule For 2001 Services 

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper

[email protected]

 

  • Anti-Subrogation Rule Bars Carrier from Recovery for Property Damage to a Loaner Vehicle
  • Insurance Law § 3420(d) of No Help to Insured in a Title Insurance Dispute
  • No Cause of Action for Bad Investments Despite Carrier's Shiny, New Marketing Materials
  • Health Insurer's  Motion to Intervene to Assert Subrogation Rights in a Medical Malpractice Action is Affirmed 

EARL'S PEARLS

Earl K. Cantwell, II
[email protected]

 

Metadata Demystified

 

All for now and we hope to see you in New Orleans.

 

Dan

New Page 2

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

Margo M. Lagueras

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

Jody E. Briandi
Steven E. Peiper

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

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

Index to Special Columns

 

Margo’s Musings on “Serious Injury”

 Audrey’s Angles on No Fault

Peiper on Property
Earl’s Pearls

Across Borders

 

10/16/08          Liberty Moving, et al  v. Westport Ins. and New York State Insurance Fund.
Appellate Division, Third Department
Timely Notice to Worker Compensation / Employers Liability Carrier of Accident Does not Satisfy Separate Obligation to Notify Insurer of Suit
The State Insurance Fund (SIF) received notice of the injured party’s accident within four day after it occurred.  However, in June 2005, the City of New York commenced a third-party action against Liberty Moving, the SIF insured, seeking contribution and alleging a grave injury was sustained (thus permitting the lawsuit to be filed).  While plaintiff notified its general liability carrier, defendant Westport Insurance Corporation, of the third-party action promptly (because there were also contractual liability claims), it did not notify the SIF.  About 11 months later, the SIF learned of the third-party action and one day after receiving the pleadings, disclaimed any duty to defend or indemnify based on late notice.

 

There was no excuse offered for the delay in notifying the SIF of the lawsuit, timely notice of which was required by the policy.  Liberty Moving argues that the SIF was not prejudiced by the delay but the court held, as it should have, that under current prejudice is not a consideration where the insured has breached a policy obligation requiring prompt notice.  Court refused to expand the SUM (underinsured motorist) case law requiring prejudice in certain circumstances to this fact situation.

Editor’s Note:  This case would be decided differently, if the policy had been issued after January 18, 2009, because of the legislative changes.  The SIF would have been required to demonstrate material prejudice impacting its ability to investigate or defend.

 

10/16/08          2130 Williamsbridge Corp. v. Interstate Indemnity Company

Appellate Division, First Department

Late Notice Defense Upheld.  Notice to Broker is Not Notice to Insurer

While insured sent notice of incident and lawsuit to its own broker immediately after learning about both (when lawsuit was commenced), the broker did not get around to sending the paperwork to the insurer for another seven months.  Late notice defense upheld and insured loses its coverage.  Attention broker:  suggest early notification to E&O carrier.

 

10/10/08          Matter of GEICO Ins. Co. v Battaglia

Appellate Division, Fourth Department
Perhaps Unaware of Past Case Law Prohibiting Rescission of Auto Liability Policies,  Court Stays SUM Arbitration Finding Liability Policy Fraudulently Obtained

GEICO commenced a proceeding seeking a permanent stay of underinsured motorist arbitration, commenced by Samuel Battaglia.  Sam was hurt in 2004 when the car he was in collided with on owned by O’Donnell and driven by Ramos.  Sam was insured with GEICO and had a SUM policy of $100,000.  The O’Donnell car was insured by New York Central Mutual (NYCM).

NYCM, in the course of its investigation, learned that O’Donnell had died in 1998 and thus denied coverage to Ramos. Battaglia and his wife then commenced an action against Ramos and O'Donnell, and NYCM reiterated its disclaimer of coverage. Battaglia thereafter requested SUM arbitration with petitioner, alleging that the O'Donnell vehicle was uninsured at the time of the accident.

NYCM established that the policy it issued was void, the court held, based on material misrepresentations with respect to O'Donnell's status, i.e., that O'Donnell was deceased.  NYCM established that it would not have renewed the policy covering the O'Donnell vehicle had it known that O'Donnell was deceased at that time. (see Insurance Law § 3105 [b]; Precision Auto Accessories, Inc. v Utica First Ins. Co., 52 AD3d 1198, 1200).

Editor’s Note:  Sorry, Fourth Department, we don’t buy this one.  Automobile policies cannot be rescinded retroactively for fraud and misrepresentation.  That’s been the rule since the late 50’s under the doctrine established in Teeter v Allstate Ins. Co., 9 AD2d 176, 182, affd 9 NY2d 655).  Policies providing mandatory liability coverage can be cancelled prospectively but NOT rescinded.  The rationale? To protect innocent third parties. Here’s a discussion in a case where INA tried to void an auto policy based on fraud:

INA relies on the general rule that a policy of insurance will be voided if the insured fraudulently concealed a material fact in applying for the insurance coverage (see, Sun Ins. Co. v Hercules Sec. Unlimited, 195 AD2d 24). However, it is well settled that Vehicle and Traffic Law § 313 "supplants an insurance carrier's common-law right to cancel a contract of insurance retroactively on the grounds of fraud or misrepresentation, and mandates that the cancellation of a contract pursuant to its provisions may only be effected prospectively" ….

Vehicle and Traffic Law § 313 places the burden on the insurer to discover any fraud before issuing the policy, or as soon as possible thereafter, and protects innocent third parties who may be injured due to the insured's negligence.  Since INA never claimed that it cancelled the policy in compliance with Vehicle and Traffic Law § 313 prior to the accident, the policy remained in effect INA is responsible to any innocent third parties injured in the accident, despite the proof adduced at the hearing that Kaplun and Aldochkina obtained the policy by misrepresentations.

Insurance Co. of N. Am. v. Kaplun, 274 A.D.2d 293, 298 (2nd Dept 2000) reported in Coverage Pointers, Volume II, No. 7. September 29, 2000

We note that none of the cases cited by the Court discussed the “Teeter” line of cases.  It appears from the briefs that this issue was never raised.

10/10/08          Lowe v. Erie Insurance Company

Appellate Division, Fourth Department
When Does the 90-day Statute of Limitations for a Judicial Challenge of a Master Arbitration Decision Begin to Run?  It’s the Date of Receipt, not the Date of Mailing
The master arbitration award was mailed to the parties on June 13, 2007, and it is undisputed that petitioner's attorney received the decision on June 18, 2007. Ninety-one days after the award was mailed and 86 days after it was received by petitioner's attorney, petitioner commenced this CPLR article 75 proceeding seeking to vacate the master arbitration award. The carrier challenged the timeliness of the appeal by motion.

Article 75 of the CPLR governs review of arbitration proceedings and provides that an application to vacate or modify an arbitration award "may be made by a party within ninety days

After reviewing case law involving other arbitration proceedings, other than in the No Fault arena, the Court concludes that the ninety day period to appeal begins upon receipt and accordingly, the judicial challenge was considered timely.

 

10/7/08            Adames v. Nationwide Mutual Fire Insurance Company

Appellate Division, Second Department

Failure to Mention Exclusion in Applicable Policy Not Excused by Mentioning it in Wrong Policy
Adames was hurt when slipping on sidewalk in front of property owned by Bobrowsky.  The property owner had a homeowners insurance policy and a personal umbrella insurance policy issued by the defendant, Nationwide. Nationwide sent a disclaimer letter to Bobrowsky and Adames's attorney, denying coverage under both policies. The disclaimer letter relied upon the definition of "insured location" appearing in the homeowners policy, and the definition of "business property," as well as an exclusion applicable to "occurrence[s] arising out of the business pursuits or business property of an insured," appearing in the umbrella policy.  For reasons unknown, Nationwide did not mention the business pursuit exclusion in the homeowners policy, only the one in the umbrella policy.

Adames then started a lawsuit against Bobrowsky, and obtained a default judgment against him in the amount of $152,505.50. Following the direct action protocol set out in Insurance Law § 3420(a)(2), Bobrowsky sues Nationwide seeing to enforce the judgment against the carrier and Nationwide raises the same limitations and exclusions as it did in the original disclaimer letter..

The appellate court reminds the parties that a notice of disclaimer must promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated and an insurer's justification for denying coverage is strictly limited to the ground stated in the notice of disclaimer. 

In its disclaimer letter, Nationwide relied upon the homeowners policy's definition of "insured location," which was not a valid basis for denying coverage, since Adames's accident triggered the policy's liability coverage, which was not limited to any particular location.  The “insured location” language was limited to property coverage. .Nationwide further relied upon the umbrella policy's definition of, and exclusion relating to, "business property." The provisions of the umbrella policy are not relevant in the instant action, since the judgment Adames seeks to have satisfied does not exceed the liability limit of the homeowners policy, and thus the umbrella policy's excess liability coverage is not triggered. The homeowners policy's exclusions relating to business pursuits and rental property, upon which Nationwide now relies, were not mentioned in Nationwide's disclaimer letter, and thus have been waived.

10/7/08            Ace Fire Underwriter's Insurance Company. v. ITT Industries, Inc.,
Appellate Division, First Department

No Contribution between Carrier Permitted if they Do Not Insure Same Risk at Same Time

In silica dust coverage dispute (which has moved from NY to California and back), the Court finds that Ace cannot seek contribution for payments made or defense costs incurred from Liberty Mutual because Liberty did not insured ITT, Ace’s insured, for the risks for which Ace insured ITT or for the time period during which the policy was in place.

 

For a review of the lower court’s decision in this rather contentious litigation, see the discussion starting page 5 of Justice Cahn’s lower court decision: http://www.nycourts.gov/reporter/pdfs/2007/2007_32135.pdf.

 

10/3/08            Ferguson v. E.M. D. Enterprises, Inc.

Appellate Division, Fourth Department
Intervention by Liability Carrier with SIR in Policy Inappropriate when Insurer Can Protect Itself by Defending
Ferguson fell at a nightclub insured under a policy issued by Lexington.  The policy had a $25,000 self-insured retention (SIR) and Lexington had no duty to investigate or defend until the SIR was exhausted (although it was permitted to do so). After the named insureds failed to respond to inquiries from Lexington, Lexington moved pursuant to CPLR 1012 (a) (2) for permission to intervene in the action, to be added as a defendant.  The Appellate Division agreed with the lower court that intervention was not an appropriate solution here.  Although Lexington did not have a right to defend its insured, it could do so if it opted to do so and that was an appropriate method for Lexington to protect its own rights.

Editor’s Note:  We suppose the counseling point is that if you “care enough,” then defend.  Otherwise, sit back and wait until the SIR is exhausted.

 

10/3/08            Gui’s Lumber & Home Center, Inc. v. Penn. Lumbermen’s Mut. Ins. Co.

Appellate Division, Fourth Department

Insured has Presumptive Conclusive Knowledge of Contents of Policy and Limitations of Coverage.  Coverage Lawsuit and E&O Claim Against Agent are Dismissed

The plaintiff’s building collapsed in a snow storm. It claims that its property insurer, Pennsylvania Lumbermen’s Mutual (PLM)  and its insurance agent, Ulrich, knew that the policies secured by Ulrich from PLM did not insure all of the buildings at the plaintiff’s location.  The action against the agent, Ulrich, is thrown out because the plaintiff was sent a copy of the subject policy and is presumed to have read the policy and understood that PLM did not insure the collapsed building.  The court therefore refused to consider whether or not the insured made a specific request for that coverage or whether some special relationship existed between them to obligate Ulrich to secure it.

 

For the same reason, the action against PLM fails. Plaintiff had conclusive presumptive knowledge of the terms of the policy prior to the loss and took no action to close the gap in coverage."


10/3/08            Progressive Insurance Company v. Strough

Appellate Division, Fourth Department
Under Insurance Law Section 5106, de novo No Fault Law Permits New (de novo) Proceeding if Master Arbitrator Awards More than $5000
The carrier argued that it had no duty to pay the insured No Fault benefits because the insured failed to cooperate with the carrier.  The insured sought argued that a master arbitration decision that had ruled in her favor was binding and could not be relitigated.

 

The insurer had sought a de novo determination of the Master Arbitrator because the amount in dispute was in excess of $5000.  Naturally, the court held that a de novo proceeding means just that, the insurer has the right to relitigate, anew, the issues decided against it by the Master Arbitrator.  On the issue of cooperation, court held that question of fact precluded summary disposition.

 

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

Margo M. Lagueras
[email protected]

 

9/30/08            Sealy v. Riteway-1, Inc.

Appellate Division, Second Department

Affirmed: Reports of Findings Not Contemporaneous With the Accident Are Insufficient to Prove Serious Injury Resulting From Such Accident

The plaintiff’s treating chiropractor provided recent range-of-motion finding showing significant limitations in the lumbar and cervical regions but did not offer any competent medical evidence that was contemporaneous with the accident itself.  In addition, his radiologist’s affirmation only established that the plaintiff had herniated and bulging discs which, in of themselves, are not evidence of serious injury unless there is also evidence of the extent of the physical limitations resulting from those disc injuries and their duration. 

 

The plaintiff further failed to explain the year and a half gap in treatment or offer any proof to satisfy the 90/180 test.

 

10/3/08            Schader V. Woyciesjes

Appellate Division, Fourth Department

Objective Medical Evidence of Serious Injury Not Required to Oppose Summary Judgment Motion Which Only Asserts Causal Relationship

Here the complaint, as amplified through a bill of particulars detailing significant disfigurement, permanent consequential limitation and significant limitation of use, was reinstated.  The defendant met its burden showing that certain injuries did not qualify as serious injury, and that others were attributable to the plaintiff’s “intrinsic degenerative disc disease”.  The plaintiff, however, only addressed the issue of causation and, while failing to raise a triable issue of fact regarding some of the categories, did succeed, through the affirmation of her treating physician, in establishing that her symptoms and resulting surgery were causally related to the accident.  Because the defendant only contended that there was no causal relationship with respect to the categories of significant disfigurement, permanent consequential limitation of use of a body organ or member, and significant limitation of use of a body function or system, it was irrelevant that the plaintiff did not provide objective medical evidence with respect to those specific categories in opposition to the motion for summary judgment.

 

10/7/08            Donadio v. Doukhnych

Appellate Division, Second Department

Reversed, On the Law: Failure to Acknowledge Two Other Accidents Resulting in Similar Injuries in a Medical Report Defeats That Report As Speculative

The treating physician’s report, which was the plaintiff’s only proof, failed to acknowledge that the plaintiff had had two other accidents in which he similarly injured his neck, back and shoulders.  Due to this omission, the doctor’s conclusion, that the injuries and range-of-motion limitations were the sole result of the subject accident, was speculative.

 

10/7/08            Harris v. Ariel Transportation Corp.

Appellate Division, First Department

Objective Basis For Conclusion and Test Performed to Induce Spasm Are Necessary For Spasm to Constitute Evidence of Serious Injury

Here the defendant presented numerous detailed reports from a specialist in rehabilitative medicine, two neurologists and two orthopedic surgeons which all stated that the plaintiff’s injuries were resolved.  In opposition, the plaintiff’s chiropractor’s affidavit cited cervical muscle spasms resulting in decreased range-of-motion.  The affidavit did not, however, give any objective basis for the chiropractor’s conclusion that the plaintiff suffered from muscle spasms, nor did it cite the test that was performed to induce the spasm, nor did it identify the tests used to measure the limitation of motion.  The affirmation of the plaintiff’s neurologist also failed because it did not relate the limitation of motion to the accident and because the examination was not contemporaneous with the accident, having taken place two years later.

 

10/7/08            Jules v. Barbecho

Appellate Division, Second Department

Inability to Afford Treatment Due to Cut-Off of No-Fault Benefits Adequately Explains Gap in Treatment

The defendants appealed and lost.  The plaintiff submitted reports showing significant lumbar spine range-of-motion limitations based on objective tests that were done both contemporaneously and recently.  Also submitted was an affirmed MRI report showing a disc bulge and a herniation which the plaintiff’s neurologist concluded resulted from the accident. 

 

The court further determined that the plaintiff’s affidavit adequately explained that the gap in treatment of some five months occurred because her no-fault benefits were cut off and she could not afford to pay out-of-pocket.

 

10/7/08            Leeber v. Ward

Appellate Division, Second Department

No Triable Issue of Fact Found Where No Opinion is Given as to Cause of Disc Bulges

Here the defendants appeal and win, on the law.  Once again, the plaintiff’s failure to submit reports of examinations performed contemporaneously with the accident is her undoing.  Also contributing to the reversal are her radiologist’s report, which failed to give any opinion as to why numerous discs were bulging, her own “self-serving” affidavit, and her failure to set forth any competent medical evidence to satisfy the 90/180 test. 

 

10/7/08            Prescott v. Amadoujalloh

Appellate Division, Second Department

Treating Neurologist’s Affirmation is Sufficient to Raise Triable Issue of Fact and Defeat Summary Judgment

The plaintiff withstood both the summary judgment motion and the appeal.  The affirmation of Dr. Nyunt, his treating neurologist, was based on both contemporaneous and recent examinations, related the MRI findings to the accident and not to degenerative disease, and opined that the injuries constituted a permanent consequential limitation of use of the plaintiff’s spine.  This was sufficient to raise a triable issue of fact.  And just to wrap it up for the plaintiff’s team, Dr. Nyunt and the plaintiff also adequately explained any significant gap in the treatment history.

 

10/7/08            Stern v. Oceanside School District

Appellate Division, Second Department

Defendants Fail to Meet Prima Facie Burden Due to Medical Report’s Failure to Set Forth Objective Testing Performed

Another win for the plaintiff, this time reversing the lower court.  The defendants’ examining neurologist stated that the plaintiff had full range of motion in his cervical and lumbar spine but neglected to set forth the objective testing that he performed to reach that conclusion.  The defendants also included with their proofs several reports from the plaintiff’s own treating physicians, at least one of which reported significant limitations of motion in the lumbar and cervical spine.  Following these submissions, it was irrelevant whether the plaintiff’s papers raised a triable issue of fact or not.

 

10/9/08            DeSouza v. Hamilton

Appellate Division, First Department

Physician’s Affirmation Contradicting Recommendation in Contemporaneous Reports is Not Acceptable

The lower court’s decision is affirmed and the complaint is dismissed.  The plaintiff’s physician’s affirmation attached three examination reports, two of which were contemporaneous with the accident.  The report dated June 3, 2005 recommended the plaintiff continue physical therapy three times a week, but despite that recommendation the plaintiff ceased treating on that date.  The physician’s affirmation contradicted those examination notes stating that the plaintiff ceased treatment on that date because she had reached the maximum benefit and further treatment would only be palliative.  This was not a reasonable explanation for ceasing treatment and, as such, the plaintiff failed to raise an issue of fact as to permanence or significance.  Notably, the plaintiff also failed to substantiate her 90/180-day claim, or offer objective evidence as to serious injury to her right knee, or that a prior injury to her left shoulder had resolved before the accident.

 

10/14/08          Eichinger v. Jone Cab Corp.

Appellate Division, First Department

Complaint Dismissed Where Plaintiff’s Neurologist Contradicts His Own Tests

The defendants submitted examination reports of an orthopedic surgeon and a neurologist which found the plaintiff had full range-of-motion in her lumbar spine and that she was not disabled.  The plaintiff’s neurologist’s report showing minimal lumbar range-of motion deficits contradicted other tests he had performed, thus indicating no serious injury.  The fact that the plaintiff also had a 14-month gap in treatment further supported a lack of serious injury.

 

10/10/08          Dann v. Yeh

Appellate Division, Fourth Department

Dismissal Affirmed: Plaintiff Fails Under Both “Significant Limitation of Use” and “90/180” Categories

The plaintiff was a passenger in a vehicle that rear-ended another vehicle and in turn was rear-ended by still another.  As regards the significant limitation of use category, the defendants submitted the examination report of a chiropractor that concluded that the plaintiff’s range-of-motion and cervical orthopedic testing was all normal and that the mild cervical sprain sustained was resolved.  In opposition, the plaintiff submitted affirmations of the treating neurologist and physician, neither one of which specified the tests conducted or whether the tests were objective.  The neurologist also failed to set forth a numerical percentage of the range-of-motion loss or compare the limitations with normal function.  The physician’s affirmation failed because the conclusions expressed were based on a review of unsworn MRI and CT scan reports and the plaintiff’s subjective complaints which were contradicted by the physician’s treating notes that stated that the plaintiff had full range-of-motion and no objective evidence of back or neck injury. 

 

As regards the 90/180 category, here the defendants offered the plaintiff’s deposition testimony that established only 85 days of disability.  This was supported by the treating physician’s affirmation and treating notes that did not set forth any objective medical evidence that the accident caused any limitations on the plaintiff’s activities.  In the absence of a supporting physician’s affidavit, the plaintiff’s own self-serving affidavit could not save the complaint.

 

10/16/08          Cook v. Castillo Livery Corp.

Appellate Division, First Department

Future Pain and Suffering Award For Right Knee Injury Affirmed

The trial court awarded the plaintiff $190,000 in pre-structured damages for past pain and suffering, and $325,000 for future pain and suffering over 20 years, plus interest, costs and disbursements.  The defendants moved to set aside the verdict or, alternatively, the damages awards as excessive.  The appellate court determined both that the trial court’s finding of permanent consequential limitation of use of plaintiff’s right knee was supported by the evidence and that the damages awarded were not unreasonable.

 

10/16/08          Palmeri v. Zurn

Appellate Division, Third Department

Complaints Inconsistent With Non-Physiologic Findings Fall On Deaf Ears

The plaintiff here alleged serious injury under the significant limitation of use of a body function or system and the 90/180 categories, lost, appealed, and lost again.  The IME performed by an orthopedic surgeon found no objective abnormal results, but rather that the plaintiffs “multiple complaints” of pain in “multiple body areas” were inconsistent with his “non-physiological findings” and were subjective.  He also determined that there was no objective causal relationship between her physical complaints and the accident.  As to her alleged psychological injuries, a licensed clinical psychologist performed an independent psychological exam and determined that the plaintiff only suffered from a mild pain disorder and not posttraumatic stress disorder or major depression. 

 

In opposition, the plaintiff did not offer any objective medical findings and “no physician quantified any physical and/or psychological loss or limitation or provided a qualitative comparison of plaintiff’s condition to normal function”, as needed to establish the significant limitation category.  Similarly, the plaintiff did not offer any objective medical evidence to support her 90/180 claim.

 

AUDREY’S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

 

Arbitration

 

10/8/08            Applicant v. Allstate Ins. Co.

Arbitrator Mary Anne Theiss (Onondaga County)

One Year Rule Applied When Discovered EIP Had Three Subsequent Accidents.

The Applicant, eligible injured person (“EIP”), was involved in an August 19, 2001, motor vehicle accident.  On October 12, 2001, the EIP underwent treatment with Dr. Cambareri who referred the EIP for a left shoulder MRI.  The MRI was conducted on October 25, 2001, and was negative.  The EIP followed up with Dr. Cambareri on November 2, 2001 and February 4, 2002.

 

Seventeen months after the accident, the EIP began chiropractic treatment.  A January 16, 2003, letter from Dr. Cambareri indicated that the EIP was treating with him for an August 9, 2002, motor vehicle accident.

 

At the arbitration the EIP testified that he did not recall being involved in an August 9, 2002, motor vehicle accident.  Instead, the insurer produced records that indicated the EIP was involved in three subsequent accidents on July 29, 2002, August 19, 2002, and April 26, 2006 and was insured by GEICO.

 

The insurer denied medical treatment on the basis of the one year rule.  The assigned arbitrator upheld the insurer’s denial on the basis that the medical records revealed resolved injuries after the August 19, 2001, accident.  The EIP’s medical treatment did not begin again until after the August 19, 2002, which claims should have been presented to GEICO.

 

Litigation

 

10/9/08            Mary Immaculate Hosp. v. New York Central Mut. Fire Ins. Co.

Appellate Term, Second Department

Insurer Granted Summary Judgment On Outstanding Verification In One of Three Items

The insurer argued that its motion for summary judgment should have been granted and the plaintiff’s cross-motion denied as the plaintiff’s affidavits of billers employed by a third party failed to establish plaintiff’s prima facie case.  The court declined to hear this argument as the insurer failed to raise it below.

 

The insurer further argued that plaintiff’s claims was premature as there was outstanding verification.  The insurer claimed that plaintiff failed to provide an application for no-fault benefits for both assignors, hospital records, and an assignment of benefits for one of the assignors.  The court held that the request for an application for benefits was unwarranted as the insurer was provided with a hospital facility forms which can be submitted in lieu of an application for benefits.  Turning to the medical records, the court held that the plaintiff provided a certified mail receipt and a signed returned postcard bearing the number and notation to the medical records the insurer sought.  The plaintiff created the presumption that the verification was responded to which the insurer failed to rebut. 

 

Finally, the request for the assignment of benefit was timely requested by the insurer and remained outstanding.  The court rejected the plaintiff’s argument that the verification request failed to identify in writing the missing verification.  The court stated that if plaintiff was unclear as to what information the insurer sought in a follow up request then the plaintiff should have resolved the matter by contacting the insurer and not ignoring the request.  Therefore, the insurer was entitled to summary judgment on the second cause of action in plaintiff’s complaint.

 

10/9/08            Focus Radiology, P.C. a/a/o Jean Isaac v. Utica Mut. Ins. Co.

Appellate Division, Second Department

Failure To Make Connection Between Employee Affidavit And Documents Being Business Records Fatal to Motion

Plaintiff’s failure to have employee affidavit refer to the documents attached to plaintiff’s moving papers or refer to those documents as business records fatal to prima facie case.

 

10/7/08            Hospital for Joint Diseases a/a/o Martiza DeThomas v. Lincoln Gen. Ins. Co. Appellate Division,  Second Department

Default Judgment Vacated When Insurer Never Received Complaint Until After Default Entered

The plaintiff appealed from an order granting the insurer’s motion to vacate a default judgment.  The Court affirmed.  The insurer was served via the Superintendent of Insurance.  The claims manager for the insurer submitted sufficient evidence to demonstrate that the insurer did not receive actual notice of the summons and complaint until after the entry of the default judgment.  This was uncontroverted by the plaintiff.  The insurer also demonstrated that it had a meritorious defense.

 

10/7/08            State Farm Auto. Ins. Co. v. Stack

Appellate Division, Second Department

De Novo Judgment In Insurer’s Favor Upheld Except Medical Expenses

The defendant, eligible injured person, appealed from the judgment, after a bench trial, dismissing his claim for medical expenses and lost wages.  The judgment was affirmed except for its modification and remand for further proceeding on value of defendant’s medical expenses related to his hospitalization from April 10, 1997 through April 12, 1997.

 

The parties proceeded through an arbitration tribunal twice with the tribunal concluding both times that the defendant was entitled to no-fault benefits.  The insurer commenced the de novo action seeking a determination that the defendant’s medical expenses for hospitalization were for an unrelated condition to the accident and that the defendant failed to establish an entitlement to lost wages.

 

The Court held that its authority was as broad as the trial court, since there was no jury trial, and that the Court may render a judgment if found warranted by the facts.  A review of the record revealed that the evidence did not support a determination that the defendant’s medical condition was not causally related to the accident.

 

The Court held that the insurer’s testimony from an anesthesiologist and pain management specialist was speculative and of little probative value due to his opinion being based solely upon a hospital discharge summary and insurance claim form.  This is in contrast the defendant’s expert neurologist’s testimony which was based upon a review of the defendant’s medical records and his examination of the defendant.

 

10/7/08            OS Tigris Acupuncture, P.C.  v.  Liberty Mut. Ins. Co.

Appellate Term, First Department

Inadmissible Chiropractor’s Report Does Not Preclude Summary Judgment For Plaintiff

The insurer failed to raise an issue of fact precluding summary judgment as its unsworn chiropractor’s report was not in admissible form.  Further, the insurer failed to produce competent evidence in support of its defense of noncompliance with the fee schedule.

 

9/30/08            Forrest Chen Acupuncture Services, P.C. v.  GEICO Ins. Co.

Appellate Division, Second Department

Insurer Prevails on Acupuncture Fee Schedule For 2001 Services

The insurer’s cross-motion for summary judgment on ground that its payment was based upon the fee schedule and could be limited to a customary and reasonable fee was properly granted.  The defendant submitted evidence that no fee schedule for acupuncture reimbursement existed in 2001 and that the insurer properly limited payment to “charges permissible for similar procedures under schedules already adopted.”  The plaintiff failed to raise any evidence to the contrary.

 

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper

[email protected]


10/07/08         
Africk v. Young

Appellate Division, Second Department

Anti-Subrogation Rule Bars Carrier from Recovery for Property Damage to a Loaner Vehicle

 In this action, defendant was using a vehicle loaned to him by an auto dealership while defendant’s own car was undergoing service.  It was during this time that defendant damaged the loaner vehicle in a single car accident.  The dealership’s carrier paid for the repairs, but sought to recover those costs from defendant and/or defendant’s carrier.

 

Not so fast ruled the Second Department.  The court noted that defendant, as a permissive user at the time of the incident, was an insured under the policy issued to the dealership.  Accordingly, the carrier’s action sought recovery for the very risk it insured and was thus barred by the anti-subrogation rule.

 

 

09/30/08          Doyle v. Siddo

Appellate Division, Second Department

Insurance Law § 3420(d) of No Help to Insured in a Title Insurance Dispute

In this case, the insured sought coverage from carrier under a title insurance policy.  However, the claim fell squarely within an exclusion in the policy which removed coverage for liability arising from “rights of persons in possession of the subject premises.”  The insured’s challenge that carrier’s disclaimer was untimely under Insurance Law § 3420(d) was unavailing since the claim did not involve death or bodily injury. 

 

09/30/08          Flax v. Lincoln National Life Insurance Company

Appellate Division, Second Department

No Cause of Action for Bad Investments Despite Carrier’s Shiny, New Marketing Materials

Plaintiff/insured commenced this action against the defendant who was the issuer of a certain variable life insurance policy.  Plaintiff’s claims for breach of contract, fraud and negligent misrepresentation were based upon certain marketing materials which indicated that plaintiff’s investment would yield more than four times the sum contributed.  Of course, the materials also contained a provision which warned that “actual investment results may be greater or lesser than those shown.” 

 

Needless to say, plaintiff was disturbed when his investment yielded a return of only 50% of what he had initially invested (given the current state of the market, your author isn’t sure why plaintiff was complaining!!!), and the instant lawsuit followed shortly thereafter.  The Second Department quickly dismissed the fraud claims by reciting the disclaimer that there was no guarantee plaintiff’s investment would be successful.  Further, the Court ruled that plaintiff had failed to state a cause of action under General Business Law § 349 when plaintiff failed to allege that the acts of the defendant were directed toward the public in general as is required by the statute.    

 

10/03/08          Poblocki v. Todoro, M.D.

Appellate Division, Fourth Department

Health Insurer’s  Motion to Intervene to Assert Subrogation Rights in a Medical Malpractice Action is Affirmed

Plaintiff, on behalf of decedent’s estate, filed a medical malpractice action against defendant.  Over four years later, decedent’s health insurer filed a motion to intervene on the grounds that it was entitled to subrogate expenditures it incurred as a result of care and treatment provided to the decedent.  Defendant’s challenged the proposed intervention by arguing that the heath insurance carrier’s claims were barred by the relevant statute of limitations, by the collateral source rule found in CPLR § 4545(c), and as untimely (laches, presumably). 

 

In affirming the trial court’s grant of the carrier’s motion to intervene, the Fourth Department first noted that the “relation back” doctrine precluded the application of any statute of limitation defenses.  Further, the Court instructed that the “collateral source” rule did not stop a health insurer from seeking subrogation.  Finally, the Court noted that the defendant’s suffered no prejudice as a result of the intervention because there would be no additional discovery, and there would be no increase on the amount of damages sustained by the decedent’s estate.

 

EARL’S PEARLS

Earl K. Cantwell, II
[email protected]

 

Metadata Demystified

 

Metadata is information describing the history, tracking and management of an electronic document. Metadata can contain information about who created the document, when it was last saved, changes and edits among versions, user comments, and more.  In the electronic world, metadata is linked electronically with the original file/document. Files created by different programs have different associated metadata.  For example, documents created by Microsoft Office typically include the following metadata: the name of the author; the name of the author’s company or organization; the name of the author’s computer; non-visible portions of text embedded within the document; the names of people who edited the document; document revisions; and hidden text, comments, and the last time the document was printed and saved.

 

E-mail typically contains metadata indicating whether there were attachments to a message, as well as information about addressees, including “bcc” recipients, and when the message was sent. Any documents attached to an e-mail may then have their own encrypted metadata.

 

If there is a reasonable anticipation of litigation, a company and lawyer may have the obligation to foresee that metadata is likely to be relevant and consider what steps should be taken to preserve metadata.  They should also consider whether the burdens of doing so are warranted under the circumstances.

 

There are sophisticated techniques and tools to preserve metadata safely and reliably, but these processes generally require the use of experts.  What clients and lawyers need to know is that just opening, moving, or copying electronic documents can alter or destroy metadata and therefore raise potential issues about accuracy and spoliation.

 

Courts and rules are increasingly requiring the production of at least some metadata, either by court rule or case-specific discovery orders.  The new Uniform Rules of the Commercial Division of the Supreme Court of New York, amended in 2006, require the production of metadata. Attorneys should be mindful of other local rules that may address the consideration or actual production of metadata.

 

Ethically, with respect to metadata, the New York State Bar Association has taken the official position that it is unethical to use metadata to gain an advantage in litigation proceedings where the production of the metadata is inadvertent. See, Ethics Opinion Number 749, December 14, 2001.  However, the New York State Bar Association Committee on Professional Ethics has also opined, in Ethics Opinion Number 782, December 8, 2004, that attorneys must use reasonable care to avoid disclosure of metadata containing client confidences or secrets, but again stating that exploitation of metadata is an impermissible intrusion on the attorney-client relationship.  Contrary to the NYSBA, the American Bar Association and Maryland State Bar Association, for example, have taken the position that lawyers who receive electronic information can scan for and make free use of metadata.  The ethical opinions and court rules with respect to metadata are inconsistent, and it is therefore important for lawyers and clients to use good judgment and good document protocols to avoid inadvertent disclosure of metadata.

 

ACROSS BORDERS

 

10/10/08          Lane v. Celadon Trucking, Inc.

Eighth Circuit Court of Appeals
Workers Compensation, Subrogation, Made Whole Doctrine, Choice of Law, Tort, Contracts…It’s All Here

This case is a must read with multiple issues of interest to insurers, trucking companies and counsel. Detailed analysis of contract, tort and Work Comp law. Celadon Trucking, Inc. (“Celadon”) appeals the district court’s application of Indiana’s lien reduction statute to Celadon’s worker’s compensation subrogation lien on proceeds from a third-party settlement reached by its former employee, Bruce W. Lane (“Lane”). On cross-appeal, Lane challenges the district court’s decision to apply Indiana law rather than Arkansas’ made-whole doctrine. We affirm in part, reverse.

Submitted by: Joseph M. Fasi II (Gonzalez Saggio & Harlan LLP)

 

10/09/08          Pulda v. State Farm Mutual Automobile Ins. Co,

Wisconsin Court of Appeals, District IV
Under Wisconsin Law, Insurer Not Required to Pay Interest on Untimely Paid Claims If Claimant Not Due A "Sum Certain"

Marvin Pies caused an automobile accident resulting in his death and the deaths of Darrin and Katrina Pulda, and their child, Maya Pulda. Pies was intoxicated at the time of the accident and liability was not disputed. Darrin's estranged father filed a joint claim with the estates of Darrin, Katrina and Maya for $1,500,000, the maximum coverage that State Farm provided to Pies. When their claim was not resolved, the joint claimants filed suit against State Farm and Pies' estate. State Farm ultimately settled Gordon's claim by paying $350,000, the maximum award available for loss of consortium under Wisconsin Statute. Thereafter, Gordon filed suit against State Farm for interest pursuant to Wisconsin Statute section 628.46. Under this section, insurers are required to pay a claim within thirty days of receiving written notice, unless the insurer has "reasonable proof" that it is not liable. An insurer's failure to timely pay a claim under this section renders it liable for interest at the rate of 12% per year, from the date the claim was due until the date it was paid, where the insurer has clear liability and the claimant is due a "sum certain." The trial court concluded that here, liability was not in dispute and one would expect a jury to award at least $350,000. Thus, State Farm was required to pay interest in the amount of $94,000. State Farm appealed that decision, pointing out that Gordon may not have received the full statutory amount because he and his son were estranged for over a year preceding the accident, dating back to a bar fight between the two. The Court of Appeals held that the evidence of estrangement provided a reasonably debatable defense to a claim for maximum damages, thus Gordon did not establish his entitlement to a "sum certain" and the interest award was reversed.

Submitted by: Bruce D. Celebrezze and Courtney O. Schreiber (Sedgwick, Detert, Moran & Arnold LLP)

 

REPORTED DECISIONS

 

Ferguson v. E.M. D. Enterprises, Inc.



Appeal from an order of the Supreme Court, Onondaga County (Brian F. DeJoseph, J.), entered October 16, 2007 in a personal injury action. The order, insofar as appealed from, denied the motion of Lexington Insurance Company for permission to intervene.

WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, WHITE PLAINS (PHILLIP A. TUMBARELLO OF COUNSEL), FOR APPELLANT.

 

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when she fell while at a nightclub insured under a policy issued by appellant, Lexington Insurance Company (Lexington). The policy provided coverage only in excess of a Self-Insured Retention in the amount of $25,000 for each claim (hereafter, Retained Limit). Although Lexington had no duty to investigate or defend a claim or suit unless and until the Retained Limit had been exhausted, it had the discretion to do so at any time. After the named insureds failed to respond to inquiries from Lexington, Lexington moved pursuant to CPLR 1012 (a) (2) for permission to intervene in the action, to be added as a defendant. We reject the contention of Lexington that Supreme Court erred in denying its motion. Although Lexington was not required to defend its insureds before the Retained Limit was exhausted, it had both the right and the opportunity to do so (see generally Buckeridge v Ludlow Motor Co., Inc., 276 App Div 511, 512-513, lv dismissed 301 NY 609). There is thus no need for intervention, inasmuch as Lexington may as of right protect its own interests by defending its insureds in the action (see generally Siegel, NY Prac § 183, at 313 [4th ed]).

Gui’s Lumber & Home Center, Inc. v. Pennsylvania Lumbermen’s Mut. Ins. Co,


Appeal from an order of the Supreme Court, Niagara County (Frank Caruso, J.), entered April 10, 2007. The order granted defendants' motions for summary judgment dismissing the complaint.

 

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages arising from the collapse of a building on its property during a snowstorm. According to plaintiff, defendant Pennsylvania Lumbermens Mutual Insurance Company (PLM), its commercial property insurance carrier, and defendant Ulrich & Company, Inc. (Ulrich), the agent that obtained commercial property coverage from PLM for plaintiff, were negligent because defendants "knew or should have known that [the] commercial lines policy [procured by Ulrich from PLM] did not insure all of the buildings owned by plaintiff" at the location in question. Supreme Court properly granted defendants' respective motions for summary judgment dismissing the complaint.

We note at the outset that plaintiff improperly included in the record on appeal papers offered in connection with its motion to settle the record. The court denied plaintiff's motion, and no appeal was taken from the order denying plaintiff's motion to settle the record to include the additional papers. We thus do not consider those papers, inasmuch as the record on appeal is properly limited to those papers that were before the court in deciding the motions for summary judgment dismissing the complaint (see CPLR 5526; Simandale v Miller Equip. Corp. [appeal No. 2], 193 AD2d 1101).

Turning to the merits, we conclude that the action against Ulrich is barred by plaintiff's receipt of the PLM policy, which was procured for plaintiff by Ulrich from PLM prior to the collapse of the building. The express terms of that policy provide that PLM did not insure the collapsed building at the time of the loss, and "[p]laintiff is charged with conclusive presumptive knowledge of the terms and limits of [the policy], thus defeating [its action for negligence against Ulrich] as a matter of law" (Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 19 AD3d 1056, 1057-1058, affd on other grounds 7 NY3d 152 [internal quotation marks omitted]). In light of our determination with respect to Ulrich, we need not address the contentions of plaintiff that it made a specific request to Ulrich for coverage with respect to the collapsed building, or that there was a special relationship between Ulrich and plaintiff obligating Ulrich to procure coverage for plaintiff for that structure.

We likewise conclude that plaintiff's receipt of the PLM policy bars the action against PLM, inasmuch as "[p]laintiff had conclusive presumptive knowledge of the terms of the policy prior to the loss and took no action to close the gap in coverage" (Nicholas J. Masterpol, Inc. v Travelers Ins. Cos., 273 AD2d 817, 818). Plaintiff's contention that the PLM policy should be reformed to provide coverage for the collapsed building is raised for the first time on appeal and is therefore not properly before us (see Ciesinski v Town of Aurora, 202 AD2d 984, 985).

Progressive Insurance Company v. Strough


Appeal and cross appeal from a judgment (denominated order) of the Supreme Court, Erie County (Penny M. Wolfgang, J.), entered December 19, 2006 in a declaratory judgment action. The judgment, among other things, denied defendant's motion for summary judgment.

HURWITZ & FINE, P.C., BUFFALO (STEVEN E. PEIPER OF COUNSEL), FOR PLAINTIFF-APPELLANT-RESPONDENT.
HOGAN WILLIG, PLLC, AMHERST (JOHN B. LICATA OF COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action alleging that defendant failed to cooperate with plaintiff, as required by her insurance policy, when she was injured in a motor vehicle accident and that, based on that failure, plaintiff is entitled to a declaration that it has no duty to indemnify defendant or to pay her no-fault insurance benefits with respect to those injuries.

We conclude that Supreme Court properly denied defendant's motion seeking summary judgment dismissing the complaint and confirming the award of the master arbitrator and properly granted that part of the cross motion of plaintiff seeking a de novo determination of its claim that it has no duty to indemnify defendant for claims arising from the motor vehicle accident, including claims for no-fault benefits. Contrary to the contention of defendant, the action is not barred by the doctrine of res judicata. Although the doctrine of res judicata generally applies with respect to a final arbitration award (see Rembrandt Indus. v Hodges Intl., 46 AD2d 623, 623-624, affd 38 NY2d 502), Insurance Law § 5106 (c) and 11 NYCRR 65-4.10 (h) (1) (ii) expressly provide that either party to a matter submitted to arbitration has the right to a de novo determination of the dispute in the event that the master arbitrator's award is $5,000 or greater, exclusive of interest and attorney's fees, and that is the case here (see Matter of Greenberg [Ryder Truck Rental], 70 NY2d 573, 576-577; Matter of Capuano v Allstate Ins. Co., 122 AD2d 138, 139).

We further conclude that the court properly denied that part of plaintiff's cross motion for summary judgment declaring that plaintiff has no duty to indemnify defendant for claims arising from the motor vehicle accident in question, including claims for no-fault benefits. Plaintiff failed to support its motion with evidence provided by an individual with personal knowledge of the facts (see Chiarini v County of Ulster, 9 AD3d 769, 769-770), and the documents provided by plaintiff in support of the cross motion do not establish that defendant failed to cooperate with plaintiff, as alleged in the complaint. Thus, plaintiff failed to meet its burden of establishing its entitlement to judgment as a matter of law (see generally Zuckerman v City of New York, 49 NY2d 557, 562; New York Cas. Ins. Co. v Kushner, 309 AD2d 1235).

Sealy v. Riteway-1, Inc.


Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., and
Haenoon Kim of counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Holly E. Peck of counsel), for
respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated August 8, 2007, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants met their prima facie burden by showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957; see also Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456). In opposition, the plaintiff failed to raise a triable issue of fact. Dr. Scott Leist, the plaintiff's treating chiropractor, concluded in his affidavit that the plaintiff sustained a permanent disability. However, while Dr. Leist provided recent range-of-motion findings which showed that the plaintiff had significant range-of-motion limitations in the lumbar and cervical regions of his spine, neither he nor the plaintiff proffered competent objective medical evidence that showed range of motion limitations in those regions of his spine that were roughly contemporaneous with the subject accident (see Silla v Mohammad, 52 AD3d 681; Perdomo v Scott, 50 AD3d 1115; Scotto v Suh, 50 AD3d 1012; Ferraro v Ridge Car Serv., 49 AD3d 498; D'Onofrio v Floton, Inc., 45 AD3d 525; Morales v Daves, 43 AD3d 1118; Rodriguez v Cesar, 40 AD3d 731, 733; Borgella v D & L Taxi Corp., 38 AD3d 701, 702). The affirmations of Dr. Richard J. Rizzuti, the plaintiff's treating radiologist, merely established that as of July 10, 2003, 1½ months after the subject accident, the plaintiff had evidence of herniated discs at L4-5 and L5-S1, and bulging discs at C5-6 and C6-7. The mere existence of herniated or bulging discs is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration (see Kilakos v Mascera, 53 AD3d 527; Cerisier v Thibiu, 29 AD3d 507; Bravo v Rehman, 28 AD3d 694; Kearse v New York City Tr. Auth., 16 AD3d 45). The self-serving affidavit of the plaintiff was insufficient to meet this requirement (see Hargrove v New York City Tr. Auth., 49 AD3d 692; Shvartsman v Vildman, 47 AD3d 700; Tobias v Chupenko, 41 AD3d 583).

The plaintiff failed to explain the lengthy gap between when he stopped treatment in June 2005 and his most recent examination by Dr. Leist in January 2007 (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 also failed to proffer competent medical evidence showing that he was unable to perform substantially all of his daily activities for not less than 90 of the first 180 days subsequent to the subject accident (see Ramirez v Parache, 31 AD3d 415; Sainte-Aime v Ho, 274 AD2d 569).
SPOLZINO, J.P., SANTUCCI, MILLER, DICKERSON and ENG, JJ., concur.

Schader v. Woyciesjes


Appeal from an order of the Supreme Court, Onondaga County (Donald A. Greenwood, J.), entered May 25, 2007 in a personal injury action. The order granted the motion of defendant for summary judgment and dismissed the complaint.

ALEXANDER & CATALANO, LLC, SYRACUSE (BENJAMIN C. RABIN OF COUNSEL), FOR PLAINTIFF-APPELLANT.
JAMES F. GAUL, SYRACUSE, FOR DEFENDANT-RESPONDENT.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in part and reinstating the complaint, as amplified by the bill of particulars, with respect to the significant disfigurement, permanent consequential limitation of use of a body organ or member and significant limitation of use of a body function or system categories of serious injury within the meaning of Insurance Law § 5102 (d) and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action to recover damages for injuries she sustained when the vehicle she was driving was rear-ended by a vehicle driven by defendant. In her bill of particulars, plaintiff alleged that she sustained a serious injury under all of the categories set forth in Insurance Law § 5102 (d) with the exception of death, dismemberment and loss of a fetus. Supreme Court granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of any of the categories alleged by plaintiff. We agree with plaintiff that the court erred in granting the motion with respect to the significant disfigurement, permanent consequential limitation of use and significant limitation of use categories of serious injury, and we therefore modify the order accordingly.

Defendant met his initial burden on the motion with respect to the fracture, permanent loss of use and 90/180 categories of serious injury by submitting plaintiff's medical records, plaintiff's deposition testimony, and the affidavit and affirmed report of the physician who examined plaintiff on defendant's behalf. Defendant thereby established that the injuries allegedly sustained by plaintiff did not qualify as serious injuries under those categories (see Gaddy v Eyler, 79 NY2d 955, 956-957; see generally Zuckerman v City of New York, 49 NY2d 557, 562). Defendant also met his initial burden with respect to the three remaining categories inasmuch as defendant's examining physician stated in his affidavit and affirmed report that the alleged injuries under those three categories, which ultimately resulted in surgical intervention and a scar, were not causally related to the accident but instead were attributable to plaintiff's "intrinsic degenerative disc disease" (see Fryar v First Student, Inc., 21 AD3d 525, 526; Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456).

In opposition, plaintiff solely addressed the causation issue and therefore failed to raise an issue of fact with respect to the fracture, permanent loss of use and 90/180 categories of serious injury (see generally Zuckerman, 49 NY2d at 562). With respect to the remaining three categories, however, we conclude that plaintiff raised an issue of fact concerning causation by submitting the affirmation of her treating physician. According to that physician, plaintiff's symptoms and resulting surgery were in fact causally related to the accident (see generally Coleman v Wilson, 28 AD3d 1198, 1198-1199; Millick v Whatman, 253 AD2d 996, 996-997). Inasmuch as defendant contended only that there was no causation with respect to those three categories of serious injury, under the circumstances of this case it is of no moment that plaintiff did not provide objective medical evidence with respect to those categories in opposition to the motion (see generally Snow v Harrington, 40 AD3d 1237, 1238-1239).

Ace Fire Underwriter's Insurance Company, etc., et al. v. ITT Industries, Inc.,


Siegal & Park, Mt. Laurel, NJ (Melvin R. Shuster, of the Bar
of the State of Pennsylvania, admitted pro hac vice, of counsel),
for appellants.
Twomey, Hoppe & Gallanty, LLP, New York (Michael A.
Twomey of counsel), for respondent.

Order, Supreme Court, New York County (Herman Cahn, J.), entered July 17, 2007, which, insofar as appealed from in this declaratory judgment action seeking a judicial determination as to insurance coverage, granted defendant Liberty Mutual Insurance Company's motion to dismiss the complaint as against it, and directed entry of judgment in its favor, unanimously affirmed, with costs.

The motion court, after examining the submitted documentary evidence, appropriately concluded that plaintiffs could not, as a matter of law, maintain a claim for contribution as against Liberty Mutual (see Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1999], affd 94 NY2d 659 [2000]; CPLR 3211[a][7]). The evidence establishes that plaintiffs and Liberty Mutual were not co-insurers of the same risk during the same period of time (see Pennsylvania Manufacturers' Assn. Ins. Co. v Liberty Mut. Ins. Co., 39 AD3d 1161 [2007], lv denied, 9 NY3d 810 [2007]; HRH Constr. Corp. v Commercial Underwriters Ins. Co., 11 AD3d 321, 323 [2004], lv denied 5 NY3d 705 [2005]).

Adames v. Nationwide Mutual Fire Insurance Company


Michael D. Ribowsky, Richmond Hill, N.Y., for appellant.
Epstein, Harms & McDonald, New York, N.Y. (Michael P.
O'Brien of counsel), for respondent.

DECISION & ORDER

In an action pursuant to Insurance Law § 3420(a)(2) to recover an unsatisfied judgment against the defendant's insured, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Schneier, J.), dated February 1, 2008, as denied her motion for summary judgment on the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the plaintiff's motion for summary judgment on the complaint is granted, and the matter is remitted to the Supreme Court, Kings County, for the entry of judgment in favor of the plaintiff and against the defendant in the principal sum of $152,505.50.

The plaintiff, Junya Adames, allegedly was injured when she fell after slipping on ice on a sidewalk in front of a commercial building owned by Charles Bobrowsky. At the time of the accident, Bobrowsky was covered under a homeowners insurance policy and a personal umbrella insurance policy issued by the defendant, Nationwide Mutual Fire Insurance Company (hereinafter Nationwide). The homeowners policy, which had a personal liability limit of $300,000 per occurrence, provided both property coverage for Bobrowsky's residence and personal liability coverage, while the umbrella policy provided excess liability coverage. Nationwide sent a disclaimer letter to Bobrowsky and Adames's attorney, denying coverage under both policies. The disclaimer letter relied upon the definition of "insured location" appearing in the homeowners policy, and the definition of "business property," as well as an exclusion applicable to "occurrence[s] arising out of the business pursuits or business property of an insured," appearing in the umbrella policy.

Adames commenced a personal injury action against Bobrowsky, and obtained a default judgment against him in the amount of $152,505.50. Adames served the judgment upon Bobrowsky and Nationwide, and when the judgment remained unsatisfied for more than 30 days, Adames commenced this action, pursuant to Insurance Law § 3420(a)(2), to recover the amount of the judgment from Nationwide. In opposition to Adames's motion for summary judgment on the complaint, Nationwide cited two exclusions appearing in the homeowners policy, one relating to injuries "arising out of business pursuits of an insured," and the other relating to injuries "arising out of the rental or holding for rental of any part of any premises by an insured." Adames now appeals from so much of an order of the Supreme Court as denied her motion for summary judgment. On appeal, Nationwide relies exclusively upon the two exclusions appearing in the homeowners policy.

A notice of disclaimer "must promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated" (General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864; see Insurance Law § 3420[d]), and "[a]n insurer's justification for denying coverage is strictly limited to the ground stated in the notice of disclaimer" (Shell v Fireman's Fund Ins. Co., 17 AD3d 444, 446; see Pawley Interior Contr., Inc. v Harleysville Ins. Cos., 11 AD3d 595; Prus v Glencott Realty Corp., 10 AD3d 390). Thus, an insurer waives any ground for denying coverage that is not specifically asserted in its notice of disclaimer, even if that ground would otherwise have merit (see General Acc. Ins. Group v Cirucci, 46 NY2d at 864; Vacca v State Farm Ins. Co., 15 AD3d 473; Pawley Interior Contr., Inc. v Harleysville Ins. Cos., 11 AD3d at 596).

In its disclaimer letter, Nationwide relied upon the homeowners policy's definition of "insured location," which was not a valid basis for denying coverage, since Adames's accident triggered the policy's liability coverage, which was not limited to any particular location, not its property coverage. Nationwide further relied upon the umbrella policy's definition of, and exclusion relating to, "business property." The provisions of the umbrella policy are not relevant in the instant action, since the judgment Adames seeks to have satisfied does not exceed the liability limit of the homeowners policy, and thus the umbrella policy's excess liability coverage is not triggered. The homeowners policy's exclusions relating to business pursuits and rental property, upon which Nationwide now relies, were not mentioned in Nationwide's disclaimer letter, and thus have been waived. The disclaimer letter cited a different exclusion, which rested on a different definition and appeared in a different insurance policy.

Accordingly, since Nationwide had no valid basis upon which to deny coverage, Adames was entitled to summary judgment on the complaint.

Donadio v. Doukhnych


Leahey & Johnson, P.C., New York, N.Y. (Peter James Johnson,
Jr., of counsel), for appellant.
Kerner & Kerner, New York, N.Y. (Kenneth T. Kerner of
counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant Stephan Doukhnych appeals from so much of an order of the Supreme Court, Richmond County (Maltese, J.), entered August 20, 2007, as denied his cross motion for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff John Donadio did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the cross motion of the defendant Stephan Doukhnych for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff John Donadio did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is granted.

In support of his cross motion, the defendant Stephan Doukhnych met his prima facie burden of showing that the plaintiff John Donadio (hereinafter the injured 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 plaintiffs failed to raise a triable issue of fact. The plaintiffs relied solely on the affirmed medical report of the injured plaintiff's treating physician. That report failed to acknowledge that the injured plaintiff had been involved in two other accidents in which he injured his neck, back, and shoulders. In light of this omission, the treating physician's conclusion that the injuries and range of motion limitations to the injured plaintiff's neck, back, and shoulders observed during his examinations were the sole result of the subject accident was speculative (see Seck v Minigreen Hacking Corp., 53 AD3d 608; Silla v Mohammad, 52 AD3d 681; Munoz v Koyfman, 44 AD3d 914; Mooney v Edwards, 12 AD3d 424).
SPOLZINO, J.P., SANTUCCI, MILLER, DICKERSON and ENG, JJ., concur.

Harris v. Ariel Transportation Corp.


Popick, Rutman & Jaw, LLP, New York (Rick J. Rutman of
counsel), for appellant.
DeBrosse & Studley, LLP, Jamaica Estates (Mitchell J. Studley
of counsel), for Ariel Transportation Corp. and Fallou Diop,
respondents.
O'Connor Redd, LLP, White Plains (Alak Shah of counsel), for
Paul Bardolf, respondent.

Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered August 1, 2007, which granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Based on specifically detailed reports from a specialist in rehabilitative medicine, two neurologists and two orthopedic surgeons, diagnosing plaintiff with resolved cervical sprain/strain and full cervical and lumbar ranges of motion, defendants met their initial burden of demonstrating, prima facie, that plaintiff had not sustained a serious injury within the meaning of Insurance Law § 5102(d). Plaintiff did not meet her consequent burden because her medical submissions did not satisfy the requirement that there be some objective basis for  finding a significant injury or impairment (see Scheer v Koubek, 70 NY2d 678, 679 [1987]). The affidavit of her chiropractor cited cervical muscle spasms resulting in a decreased range of motion of the cervical spine, and chronic neck pain and stiffness. Medical testimony concerning observations of a spasm may constitute objective evidence in support of a serious injury; however, the spasm must be objectively ascertained (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 357 [2002]). The affidavit did not cite any objective basis for the chiropractor's conclusion that plaintiff suffered from muscle spasms or the test performed that induced the spasm. It also did not identify the objective tests utilized in deriving the measurements of the limitations of motion. The affirmation of plaintiff's neurologist was insufficient to raise a triable issue of fact in that it did not explain the factual basis for the conclusion that the limitations of motion were causally related to the accident, where the examination took place two years after the accident.

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

Jules v. Barbecho


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Colin F. Morrissey of counsel), for appellant.
Harmon, Linder & Rogowsky, New York, N.Y. (Mitchell
Dranow of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Ambrosio, J.), dated December 17, 2007, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendant met his prima facie burden by showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957).

In opposition, the plaintiff raised a triable issue of fact. As to the plaintiff's lumbar spine, the submissions of Aric Hausknecht, the plaintiff's treating neurologist, and Eddy Rodriguez, one of the plaintiff's treating physicians, established significant lumbar spine range-of-motion limitations therein which were based on objective range-of-motion tests done during both contemporaneous and recent examinations. In his submissions, Hausknecht noted the findings contained in the affirmed magnetic resonance imaging report of the plaintiff's lumbar spine which showed, inter alia, a disc bulge at L4-5 and a disc herniation at L5-S1. Hausknecht further concluded in his submissions that the injuries to the plaintiff's lumbar spine were the result of the subject accident and amounted to a significant restriction of mobility of the plaintiff's lumbar spine. He further deemed the injuries a permanent consequential limitation of use of her lumbar spine. The submissions of Hausknecht and Rodriguez were sufficient to raise at least a triable issue of fact as to whether the plaintiff sustained a serious injury under the significant limitation of use or the permanent consequential limitation of use category of Insurance Law § 5102(d) to her lumbar spine as a result of the subject accident (see Altreche v Gilmar Masonry Corp., 49 AD3d 479; Lim v Tiburzi, 36 AD3d 671; Shpakovskaya v Etienne, 23 AD3d 368; Clervoix v Edwards, 10 AD3d 626; Acosta v Rubin, 2 AD3d 657; Rosado v Martinez, 289 AD2d 386; Vitale v Lev Express Cab Corp., 273 AD2d 225; see also Djetoumani v Transit, Inc., 50 AD3d 944).

The plaintiff adequately explained the significant gap in her treatment history by stating in her affidavit that she stopped treatment about four to five months after the subject accident because her no-fault insurance was cut off and she could not afford to personally pay for further treatment (see Francovig v Senekis Cab Corp., 41 AD3d 643; Black v Robinson, 305 AD2d 438).
SKELOS, J.P., RITTER, DILLON, CARNI and LEVENTHAL, JJ., concur.

Leeber v. Ward


Richard T. Lau, Jericho, N.Y. (Gene W. Wiggins of counsel), for
appellant.
Tinari, O'Connell, Osborn & Kaufman, LLP, Central Islip, N.Y.
(Frank A. Tinari of counsel), for
respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated March 3, 2008, which denied her motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

The defendant met her prima facie burden by showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact. While the affidavit of the plaintiff's treating chiropractor set forth significant range-of-motion limitations in the plaintiff's cervical and lumbar spine based on a recent examination, neither he nor the plaintiff proffered objective medical evidence that revealed the existence of limitations in her spine that were contemporaneous with the subject accident (see Budhram v Ogunmoyin, 53 AD3d 640; Ferraro v Ridge Car Serv., 49 AD3d 498; Shvartsman v Vildman, 47 AD3d 700; D'Onofrio v Floton, Inc., 45 AD3d 525; Borgella v D & L Taxi Corp., 38 AD3d 701, 702).

The reports of the plaintiff's treating radiologist, Dr. Russell Weinstein, concerning the plaintiff's November 2004 cervical spine and lumbar spine magnetic resonance imaging films, failed to raise a triable issue of fact. Those reports merely noted that disc bulges were observed at C3-4, C5-6, C6-7, as well as at L4-5 and L5-S1. Dr. Weinstein did not, in his reports or his affirmations, offer his opinion on the cause of those findings (see Collins v Stone, 8 AD3d 321, 322).

The self-serving affidavit of the plaintiff was also insufficient to raise a triable issue of fact as to whether she sustained a serious injury under the no-fault statute (see Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Fisher v Williams, 289 AD2d 288, 289).

The plaintiff also failed to set forth any competent medical evidence to establish that she sustained a medically-determined injury of a nonpermanent nature which prevented her from performing her usual and customary activities for 90 of the 180 days following the subject accident (see Roman v Fast Lane Car Serv., Inc., 46 AD3d 585; Sainte-Aime v Ho, 274 AD2d 569). The plaintiff's own deposition testimony established that she missed, at most, a month of full-time work as a result of the subject accident.

Prescott v. Amadoujalloh


Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina
and Andrea M. Alonso of counsel), for appellant.
Alexander Bespechny, Brooklyn, N.Y. (Louis A. Badolato of
counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Winston Christopher Ward appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated October 3, 2007, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

The defendant Winston Christopher Ward (hereinafter the appellant) met his prima facie burden on his motion by showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition to the appellant's prima facie showing, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury to his cervical and/or lumbar spine under the significant limitation and/or permanent consequential limitation of use categories of Insurance Law § 5102(d). As part of his opposition, the plaintiff principally relied upon the affirmation of Dr. Soe Nyunt, his treating neurologist. Dr. Nyunt's affirmation revealed significant range-of-motion limitations in the plaintiff's lumbar and cervical spine based on objective range-of-motion testing which was based on both contemporaneous and recent examinations. Moreover, in his affirmation, Dr. Nyunt properly noted the findings contained in the plaintiff's magnetic resonance imaging report concerning the plaintiff's lumbar spine which revealed, inter alia, a disc herniation at L5-S1. Dr. Nyunt concluded, in his affirmation, that the injuries to the plaintiff's cervical and lumbar spine were the result of the subject accident and not degeneration, and amounted to a significant restriction of mobility of the plaintiff's spine. Dr. Nyunt opined that the injuries to the plaintiff constituted a permanent consequential limitation of use of his spine. Dr. Nyunt's affirmation was sufficient to raise a triable issue of fact as to whether the plaintiff sustained a significant limitation of use and/or a permanent consequential limitation of use of his cervical and/or lumbar spine as a result of the subject accident (see Altreche v Gilmar Masonry Corp., 49 AD3d 479; Lim v Tiburzi, 36 AD3d 671; Shpakovskaya v Etienne, 23 AD3d 368; Clervoix v Edwards, 10 AD3d 626; Acosta v Rubin, 2 AD3d 657; Rosado v Martinez, 289 AD2d 386; Vitale v Lev Express Cab Corp., 273 AD2d 225).

The plaintiff, as well as Dr. Nyunt, adequately explained any significant gap in the plaintiff's treatment history (see Pommells v Perez, 4 NY3d 566, 577).
RIVERA, J.P., FLORIO, ANGIOLILLO, McCARTHY and CHAMBERS, JJ., concur.

Stern v. Oceanside School District


O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Michael
T. Reagan of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff Lee Boodoo appeals from an order of the Supreme Court, Nassau County (Adams, J.), entered July 26, 2007, which granted the defendants' motion for summary judgment dismissing the complaint insofar as asserted by him on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Lee Boodoo is denied.

Contrary to the Supreme Court's conclusion, the defendants did not establish their entitlement to judgment as a matter of law with respect to the claims asserted by the plaintiff Lee Boodoo (hereinafter the plaintiff) by submitting evidence that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. In the report of the defendants' examining neurologist, that physician concluded that the plaintiff had "full" range of motion in his cervical and lumbar spine, yet he failed to set forth the objective testing he performed in arriving at those conclusions (see Cedillo v Rivera, 39 AD3d 453; McLaughlin v Rizzo, 38 AD3d 856; Geba v Obermeyer, 38 AD3d 597; Larrieut v Gutterman, 37 AD3d 424; Schacker v County of Orange, 33 AD3d 903; Ilardo v New York City Tr. Auth., 28 AD3d 610; Kelly v Rehfeld, 26 AD3d 469; Nembhard v Delatorre, 16 AD3d 390; Black v Robinson, 305 AD2d 438). Moreover, the defendants included, with their submissions, various reports of the plaintiff's treating physicians, at least one of which noted significant limitations of motion in the plaintiff's lumbar and cervical spine (see Colacino v Andrews, 50 AD3d 615; Jenkins v Miled Hacking Corp., 43 AD3d 393).

Since the defendants did not meet their prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiff in opposition to the motion were sufficient to raise a triable issue of fact (see Colacino v Andrews, 50 AD3d 615; Cedillo v Rivera, 39 AD3d 453; Coscia v 938 Trading Corp., 283 AD2d 538).

Matter of Geico Ins. Co. v Battaglia

Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 75 seeking, inter alia, a permanent stay of arbitration of a claim by respondent Samuel Battaglia for supplemental uninsured motorist (SUM) coverage. Battaglia was injured in January 2004 when the vehicle he was driving collided with a vehicle registered to James P. O'Donnell and operated by Jeffrey R. Ramos. At that time, Battaglia was insured by petitioner with SUM coverage of $100,000 per person, and O'Donnell purportedly was insured by respondent New York Central Mutual Fire Insurance Company (NYCM). In the course of its investigation of the accident, NYCM learned in August 2004 that O'Donnell had died in 1998 and thus disclaimed coverage for Ramos. Battaglia and his wife then commenced an action against Ramos and O'Donnell, and NYCM reiterated its disclaimer of coverage. Battaglia thereafter requested SUM arbitration with petitioner, alleging that the O'Donnell vehicle was uninsured at the time of the accident. Petitioner appeals from an order denying that part of the petition seeking a permanent stay of arbitration and granting the cross motion of NYCM seeking, inter alia, to dismiss the petition and all claims against it. We affirm.

We conclude on the record before us that NYCM established as a matter of law that its policy, as renewed, was void ab initio based on the material misrepresentation with respect to O'Donnell's status, i.e., that O'Donnell was deceased (see generally Matter of Mercury Ins. Group v Ocana, 46 AD3d 561). NYCM established that it would not have renewed the policy covering the O'Donnell vehicle had it known that O'Donnell was deceased at that time (see Insurance Law § 3105 [b]; Precision Auto Accessories, Inc. v Utica First Ins. Co., 52 AD3d 1198, 1200).

Lowe v. Erie Insurance Company


Appeal from an order of the Supreme Court, Chautauqua County (Timothy J. Walker, J.), entered November 21, 2007 in a proceeding pursuant to CPLR article 75. The order, insofar as appealed from, granted respondent's motion in part and dismissed the petition.

FESSENDEN, LAUMER & DE ANGELO, JAMESTOWN (MARY B. SCHILLER OF COUNSEL), FOR PETITIONER-APPELLANT.
MURA & STORM, PLLC, BUFFALO (BRIAN C. CLARK OF COUNSEL), FOR RESPONDENT-RESPONDENT.

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is denied in its entirety and the petition is reinstated.

Opinion by Centra, J.:

I.

The straightforward but apparent issue of first impression in an appellate court in New York is whether the 90-day statute of limitations set forth in CPLR 7511 (a) begins to run on the date on which the arbitrator's decision was mailed to petitioner or the date on which it was received by petitioner or his or her agent. We conclude that the operative measuring date is the date on which the decision was received by the petitioner or his or her agent, and we therefore conclude that this proceeding was timely commenced.

II.

The undisputed facts establish that petitioner pursued no-fault arbitration to recover personal injury protection benefits for injuries she sustained in a motor vehicle accident on September 26, 2001. The arbitrator issued a decision denying the claim and, upon petitioner's appeal from that decision, a no-fault master arbitrator affirmed the arbitrator's decision. The master arbitration award was mailed to the parties on June 13, 2007, and it is undisputed that petitioner's attorney received the decision on June 18, 2007. Ninety-one days after the award was mailed and 86 days after it was received by petitioner's attorney, petitioner commenced this CPLR article 75 proceeding seeking to vacate the master arbitration award. In lieu of an answer, respondent moved to dismiss the petition and for costs, contending, inter alia, that the proceeding was time-barred. Supreme Court granted the motion in part and dismissed the petition, holding that delivery under CPLR 7511 (a) must be construed as the date of mailing rather than the date of receipt of the award. For the reasons that follow, we conclude that the order should be reversed insofar as appealed from.

III.

Article 75 of the CPLR governs review of arbitration proceedings and provides that an application to vacate or modify an arbitration award "may be made by a party within ninety days after its delivery to him [or her]" (CPLR 7511 [a]). The statute does not define "delivery," but CPLR 7507 provides that the arbitrator "shall deliver a copy of the award to each party in the manner provided in the agreement, or, if no provision is so made, personally or by registered or certified mail, return receipt requested." An Insurance Department Regulation concerning master arbitration procedures provides that "[t]he parties shall accept as delivery of the award the placing of the award or a true copy thereof in the mail, addressed to the parties or their designated representatives at their last known addresses, or by any other form of service permitted by law" (11 NYCRR 65-4.10 [e] [3]).

Petitioner contends that "delivery" under CPLR 7511 (a) must be construed as the actual receipt of the award and that the Insurance Department Regulations governing master arbitration proceedings do not apply to CPLR article 75 proceedings. Respondent, however, contends that Insurance Department Regulation (11 NYCRR) § 65-4.10 (e) (3) specifies that delivery of the master arbitration award is the date on which the award is mailed to the parties, and that the regulation does not conflict with CPLR article 75. We agree with petitioner.

Were we to determine that "delivery" means the actual receipt of the award, then this proceeding must be deemed timely because petitioner's attorney commenced it 86 days after receiving the award. On the other hand, were we to determine that "delivery" must be deemed the date on which the award was mailed to petitioner's attorney, then we would agree with the court that this proceeding is time-barred because petitioner's attorney commenced it 91 days after the award was mailed to him.

IV.

Although, as noted, this appears to be an issue of first impression, we conclude that case law supports the interpretation that delivery must be construed as the date on which the award was received. For example, in Matter of Case v Monroe Community Coll. (89 NY2d 438, 439-440, rearg denied 89 NY2d 1087), the issue before the Court of Appeals was whether service of an arbitration award upon the petitioner's union representative constituted service upon the petitioner for purposes of measuring the timeliness of an appeal from the award. In determining that the petitioner was indeed in effect thereby served, the Court explained that " once counsel has appeared in a matter a Statute of Limitations or time requirement cannot begin to run unless that counsel is served with the determination or the order or judgment sought to be reviewed' " (id. at 441, quoting Matter of Bianca v Frank, 43 NY2d 168, 173). The Court noted that there was no dispute that the arbitrator served the award in accordance with applicable rules, i.e., those of the American Arbitration Association, and the Court concluded that, because the union representative was the designated agent for the petitioner to accept service of the award, the petitioner was deemed to have been served with the award regardless of whether the union representative was an attorney (Case, 89 NY2d at 442). Although not expressly discussing the issue before us, the Court took note of both the date of mailing and the date of receipt, but thereafter relied upon the date of receipt in determining that the petition was not filed within 90 days after service of the award (id. at 443).

In further support of our decision, we note that several cases have explicitly used the terms "receipt" and "received" in discussing the 90-day period set forth in CPLR 7511 (a) (Matter of McRae v New York City Tr. Auth., 39 AD3d 861, 861, lv dismissed 9 NY3d 945 ["A proceeding to vacate an arbitration award must be commenced within 90 days of receipt of the arbitrators' determination"]; Matter of Pender v New York State Off. of Mental Retardation & Dev. Disabilities, 27 AD3d 756, 756, lv denied 9 NY3d 805, rearg denied 9 NY3d 977 ["(T)he petitioner's counsel received a copy of the arbitrator's determination, at the latest, on September 30, 2002, the operative date from which to measure the 90-day statute of limitations"]; Matter of Lumbermens Mut. Cas. Co. v City of New York, 5 AD3d 684, 685 ["(T)he documentary evidence . . . established that the petitioner received the arbitrator's decision no later than November 9, 2001 (and, because) this proceeding was commenced more than 90 days thereafter, the Supreme Court properly dismissed it as untimely"]; Werner Enters. Co. v New York City Law Dept., 281 AD2d 253, lv denied 97 NY2d 601 ["Vacatur of the subject awards was properly denied, since the proceeding was commenced more than 90 days after the awards were delivered to petitioner, as evidenced by the letter of petitioner's counsel to the arbitration forum acknowledging receipt of the award"]).

Less recent cases have used language that essentially is analogous to the terms "receipt" or "received" (Lopez v Coughlin, 220 AD2d 349, 350 ["Petitioner's application challenging the arbitration award was properly dismissed for failure to bring it within 90 days after service of the award on petitioner's attorneys"]; Matter of Malatestinic v Board of Educ. of City of N.Y., 132 AD2d 661, 662 ["(The) statute began to run on . . . the date upon which the petitioner was originally notified of the denial of her request"]; Matter of Levy [Allstate Ins. Co.], 63 AD2d 982, 983 ["(The operative date was date on which the arbitration) award . . . was transmitted to the parties"]). We acknowledge that, in Robinson v City of New York (237 AD2d 127, 128, lv denied 90 NY2d 801), the First Department held that the "[p]etitioner was properly deemed served with the arbitration award upon its mailing to the attorney who represented her at the arbitration hearing." The issue in that case, however, was whether the attorney's delay in forwarding the award to the petitioner served to extend the petitioner's 90 days under CPLR 7511 (a) to move to vacate the award, not whether delivery of the award was the date on which it was mailed to the attorney.

In attempting to distinguish the cases that use the word "received," respondent contends that those cases involved labor arbitration awards rather than no-fault master arbitration awards and thus are not governed by Insurance Department Regulation (11 NYCRR) § 65-4.10. We reject that contention, for two reasons. First, 11 NYCRR 65-4.10 (e) (3) simply sets forth the method of the delivery of the award to the parties. It does not define "delivery" as it is used in CPLR 7511 (a). Second, we agree with petitioner that, once a party commences a proceeding pursuant to CPLR article 75, the procedures set forth in that article control over those set forth in the Insurance Department Regulations. Thus, even if 11 NYCRR 65-4.10 (e) (3) constitutes an attempt to define "delivery" under CPLR 7511 (a), such an attempt would be improper. Were we to accept respondent's contention, the 90-day statute of limitations under CPLR 7511 (a) would have different measuring dates, depending on what type of arbitration was sought to be reviewed, and that would be an untenable distinction.

V.

Accordingly, we conclude that the order insofar as appealed from should be reversed, respondent's motion denied in its entirety and the petition reinstated.

DeSouza v. Hamilton

 

Leonard Silverman, New York, for appellant.
Fiedelman & McGaw, Jericho (Andrew Zajac of counsel), for
Eugene M. Hamilton, respondent.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Holly E. Peck of counsel), for Djeli Diallo, respondent.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered June 19, 2007, which granted defendants' motion for summary judgment dismissing the complaint for lack of a serious injury as required by Insurance Law § 5102(d), unanimously affirmed, without costs.

No issue of fact as to permanence or significance is raised by plaintiff's physician's March 27, 2007 affirmation in opposition discussing and attaching contemporaneous reports of his examinations of plaintiff on February 1, 2005, three days after the accident, June 3, 2005, and March 2, 2007. Although the affirmation states that plaintiff ceased treatment on June 3, 2005, after four months of physical therapy, by which time plaintiff "had reached the maximum benefit of therapeutic treatment for her [disc] injuries," such that any further treatment would have been merely "palliative," the June 3, 2005 contemporaneous report recommended that plaintiff continue physical therapy three times a week. "[A] plaintiff who terminates therapeutic measures following the accident . . . must offer some reasonable explanation for having done so" (Pommells v Perez, 4 NY3d 566, 574 [2005]). Here, the explanation offered contradicts the earlier recommendation to continue physical therapy, and can not be accepted under the circumstances presented (see Gonzalez v A.V. Managing, Inc., 37 AD3d 175 [2007]). In addition, there is no medical evidence substantiating plaintiff's claim that a prior injury to her left shoulder had resolved by the time of the accident (see Brewster v FTM Servo, Corp., 44 AD3d 351, 352 [2007]), and no objective medical evidence whatsoever of a serious injury to plaintiff's right knee. Plaintiff's 90/180 day claim lacks medical substantiation of her claim that her injuries were such as to require her confinement to home for some four months following the accident (see Nelson v Distant, 308 AD2d 338, 340 [2003]).

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

Eichinger v. Jone Cab Corp.


Baker, McEvoy, Morrissey & Moskovitz, P.C., New York
(Stacy R. Seldin of counsel), for appellants-respondents.
Law Offices of Stephen H. Frankel, Mineola (Nicholas E.
Tzaneteas of counsel), for respondent-appellant.

Order, Supreme Court, Bronx County (Alan Saks, J.), entered on or about March 17, 2008, which denied so much of defendants' motion for summary judgment dismissing the complaint as to the allegation of serious injury regarding lumbar spine bulges at
L4-L5, and granted the motion with respect to all other allegations, unanimously modified, on the law, without costs, the motion granted in its entirety, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

Defendants made a prima facie showing, based on the quantified findings in the examination reports of their orthopedic surgeon and neurologist, that plaintiff had a full range of motion in her lumbar spine (see e.g. Style v Joseph, 32 AD3d 212, 214 [2006]). Related tests by these experts revealed no motor or gait deficiencies, leading to the conclusion that plaintiff was not disabled. In opposition, plaintiff's proof failed to raise a triable issue as to serious injury of the lumbar spine. The minimal lumbar range-of-motion deficits noted by plaintiff's neurologist, Dr. Hausknecht, contradicted by the results of other tests he conducted (including a negative result on a seated straight-leg-raising test), indicated no serious injury to the lumbar spine.

The 14-month gap in treatment underscores the lack of evidence of serious injury to plaintiff's lumbar spine (see generally Pommells v Perez, 4 NY3d 566, 574 [2005]). Dr. Hausknecht's conclusory opinion that plaintiff had received "an adequate course of rehabilitation" and attained "maximal medical improvement" was insufficient, under the circumstances, to explain this gap.

Plaintiff's experts failed to address the opinion of defendants' radiologist that the cervical condition was degenerative in origin due to dessication of the discs, thus negating any triable issue of fact as to serious injury regarding the cervical complaint (id. at 579-580). Plaintiff's evidence also failed to establish a medically substantiated, nonpermanent impairment satisfying the 90-out-of-180-day aspect of the claim (see Insurance Law § 5102[d]; Johnson v Marriott Mgt. Servs. Corp., 44 AD3d 450 [2007], lv denied 10 NY3d 716 [2008]).

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

Dann v. Yeh


Appeal from an order of the Supreme Court, Monroe County (Evelyn Frazee, J.), entered May 14, 2007 in a personal injury action. The order granted the motions of defendants for, inter alia, summary judgment dismissing the complaint.

CELLINO & BARNES, P.C., ROCHESTER (JAMES E. MASLYN OF COUNSEL), FOR PLAINTIFF-APPELLANT.
CHAMBERLAIN, D'AMANDA, OPPENHEIMER & GREENFIELD, LLP, ROCHESTER (HENRY R. IPPOLITO OF COUNSEL), FOR DEFENDANT-RESPONDENT NOELLE M. YEH.
BURKE, ALBRIGHT, HARTER & REDDY, LLP, ROCHESTER (ALEXI G. VACKICEV OF COUNSEL), FOR DEFENDANT-RESPONDENT CHRISTOPHER E. DANN.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedly sustained while he was a passenger in a motor vehicle operated by defendant Christopher E. Dann. Christopher Dann's vehicle rear-ended a vehicle and was then rear-ended by a vehicle operated by defendant Noelle M. Yeh. Supreme Court properly granted defendants' respective motions for, inter alia, summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of the significant limitation of use and 90/180 categories set forth in Insurance Law § 5102 (d).

With respect to the significant limitation of use category, defendants submitted the report of a chiropractor who examined plaintiff and concluded that plaintiff's cervical and lumbar range of motion was within normal limits, that all cervical orthopedic testing was negative, and that plaintiff had sustained a cervical sprain/strain as a result of the accident, which had been resolved. "Defendant[s] thereby established that plaintiff sustained only a mild injury as a result of the accident and that there was no objective medical evidence that plaintiff sustained a significant . . . injury" (Beaton v Jones, 50 AD3d 1500, 1501; see Licari v Elliott, 57 NY2d 230, 236; Clark v Perry, 21 AD3d 1378; Dingeldey v Kuebler, 15 AD3d 961). In opposition, plaintiff failed to raise a triable issue of fact with respect to that category. The affirmations of plaintiff's treating neurologist and treating physician are insufficient to raise a triable issue of fact because they fail to set forth the tests conducted to support the conclusions in the affirmations and whether those tests were objective in nature (see Burke v Carney, 37 AD3d 1107; Calucci v Baker, 299 AD2d 897, 898). Further, plaintiff's neurologist failed to "provide either a numeric percentage of . . . plaintiff's loss of range of motion' or a qualitative assessment of . . . plaintiff's condition' " (Parkhill v Cleary, 305 AD2d 1088, 1089, quoting Toure v Avis Rent A Car Sys., 98 NY2d 345, 350; see Robinson v Polasky, 32 AD3d 1215, 1216), nor did plaintiff's neurologist
" compare[] the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system' " (Parkhill, 305 AD2d at 1089, quoting Toure, 98 NY2d at 350; see Jaromin v Northrup, 39 AD3d 1264, 1265).

In addition, we agree with defendants that the conclusions of plaintiff's treating physician appear to have been based upon her review of unsworn MRI and CT scan reports, upon which plaintiff cannot rely (see Goldin v Lee, 275 AD2d 341, 342; Merisca v Alford, 243 AD2d 613, 614). The physician also appears to rely on plaintiff's subjective complaints of pain, because the physician's own notes attached to the affirmation and incorporated therein are replete with statements that plaintiff exhibited full range of motion with no objective evidence of neck or back injury (see Toure, 98 NY2d at 350; Jaromin, 39 AD3d at 1265; Cullen v Treen, 30 AD3d 1086, 1087; Howard v Rogalski, 291 AD2d 909). Finally, with respect to the significant limitation of use category, the affidavit of plaintiff's attorney lacks evidentiary value (see Zuckerman v City of New York, 49 NY2d 557, 563), and the unsworn medical reports attached thereto "fail to raise an issue of fact because they are not in admissible form" (Butera v Woodhouse, 267 AD2d 1039; see Grasso v Angerami, 79 NY2d 813, 814).

Defendants also met their initial burden of establishing as a matter of law that plaintiff did not sustain a serious injury under the 90/180 category by submitting the deposition testimony of plaintiff establishing that she was disabled for only 85 days out of the 180 days following the accident (see Moore v Gawel, 37 AD3d 1158, 1159). Plaintiff's submissions in opposition to the motions fail to raise a triable issue of fact with respect to that category of serious injury. We note in particular that the affirmation and office notes of plaintiff's treating physician fail to identify any objective medical evidence establishing that the accident caused the alleged limitations on plaintiff's activities (see Beaton, 50 AD3d at 1502; Calucci, 299 AD2d at 898). Further, the self-serving affidavit of plaintiff stating that he was unable to return to work and could no longer participate in many recreational activities as a result of his injuries is insufficient to raise a triable issue of fact, in the absence of "a physician's affidavit substantiating the existence of a medically determined injury which caused the alleged limitation of [his] activities" (Jackson v New York City Tr. Auth., 273 AD2d 200, 201; see Kauderer v Penta, 261 AD2d 365, 366).

2130 Williamsbridge Corp. v. Interstate Indemnity Company


Carl F. Lodes, Carmel, for appellant.
Rivkin Radler LLP, Uniondale (Merril S. Biscone of counsel),
for respondent.

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered July 6, 2007, which granted defendant's motion for summary judgment dismissing the complaint and declaring it had no duty to defend or indemnify plaintiff in an underlying personal injury action, unanimously affirmed, with costs.

A tenant of the residential building owned by plaintiff allegedly tripped and fell in the lobby on December 28, 2004, suffering personal injury. The tenant's attorneys notified plaintiff of the accident by letter dated March 8, 2005. Plaintiff seeks a declaration and adjudication that its insurance carrier was obligated to insure, defend and indemnify it, and reimburse its expenses in the action brought by the tenant.

The affidavit of plaintiff's president stated that he immediately forwarded the letter from the tenant's attorney to plaintiff's insurance broker, and when the summons and complaint were served, he personally delivered them to the broker as well. However, the broker did not forward the letter or the summons and complaint to defendant's agent until October 24, 2005, more than seven months after receiving notification of the accident.

An affirmative defense cited plaintiff's failure to comply with a condition precedent in the policy requiring timely notice to defendant of an occurrence, claim or suit. Plaintiff claimed it was unaware that its notice to the broker was insufficient.

Where a policy of insurance requires that notice of an occurrence be given "as soon as practicable," that means within a reasonable period of time (Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742 [2005]). An insured's failure to comply with this condition precedent vitiates the contract. The carrier need not show prejudice before disclaimer based on the lack of timely notice. Even relatively short periods of unexcused delay are unreasonable as a matter of law (see Power Auth. of State of N.Y. v Westinghouse Elec. Corp., 117 AD2d 336 [1986]).

The insured bears the burden of establishing reasonableness of the proffered excuse. That the insured in such circumstances was unaware that notice provided to its broker was insufficient is no excuse (see Gershow Recycling Corp. v Transcontinental Ins. Co., 22 AD3d 460, 462 [2005]). Moreover, the policy contained an "Important Notice" listing a telephone number for reporting claims, and noting that all other correspondence should be sent to the broker. Plaintiff had only to read the policy to determine how to fulfill the condition precedent.

Liberty Moving , et al  v. Westport Ins. Corp. and New York State Insurance Fund.


Calendar Date: September 8, 2008
Before: Mercure, J.P., Spain, Carpinello, Malone Jr. and Stein, JJ.

Hancock & Estabrook, L.L.P., Syracuse (Alan J.
Pierce of counsel), for appellant.
Gregory J. Allen, State Insurance Fund, Melville (Fred
J. Hutchison of Donohue, Sabo, Varley & Huttner, Albany, of
counsel), for respondent.

MEMORANDUM AND ORDER

Carpinello, J.

Appeal from a judgment of the Supreme Court (Egan Jr., J.), entered September 7, 2007 in Albany County, which, among other things, granted a cross motion by defendant New York State Insurance Fund for summary judgment dismissing the complaint against it.

The genesis of this action is an April 5, 2001 injury sustained by Christopher Tambini in the course of his employment with plaintiff. On that day, Tambini was moving a voting booth into a New York City polling place when the booth became stuck on a section of a cement ramp in disrepair causing injury to his back. Four days later, the incident was reported to plaintiff's workers' compensation carrier, defendant New York State Insurance Fund (hereinafter Fund), by way of a C-2 claim form [FN1]. Indeed, workers' compensation benefits were thereafter provided for two slipped disks. In 2002, Tambini and his wife commenced a premises liability action against the City of New York.

In June 2005, the City of New York commenced a third-party action against plaintiff seeking contribution and indemnification pursuant to an agreement between them and under common law. While plaintiff notified its general liability carrier, defendant Westport Insurance Corporation, of the third-party action in July 2005, it did not so notify the Fund. Rather, it was not until June 2, 2006 that the Fund first learned of the third-party action. After obtaining a copy of the pleadings on June 6, 2006, one day later the Fund disclaimed any duty to defend or indemnify. While three separate grounds were asserted for the disclaimer, the propriety of only two remain at issue here, namely, that plaintiff failed to provide prompt notice of the third-party action and that Tambini did not suffer a grave injury. This declaratory judgment action seeking to compel the Fund to defend and indemnify plaintiff in the Tambini action ensued [FN2]. Plaintiff now appeals from a judgment of Supreme Court granting summary judgment to the Fund.

The failure to comply with a notice requirement of a liability insurance contract vitiates the contract and, under such circumstances, the carrier is not required to demonstrate actual prejudice from the delay in order to successfully disclaim coverage (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]; Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339 [2005]; American Home Assur. Co. v International Ins. Co., 90 NY2d 433, 441-443 [1997]). Here, the subject workers' compensation policy requires plaintiff, in relevant part, to report any injury "at once" and to "[p]romptly give [the Fund] all notices, demands and legal papers related to the injury, claim, proceeding or suit." Sworn evidence submitted by the Fund, which plaintiff failed to adequately refute, established that plaintiff did not provide notice of the third-party action until June 2, 2006, nearly 11 months after having been served [FN3]. No explanation or excuse for this delay has been asserted. Supreme Court ruled that this delay was unreasonable as a matter of law and plaintiff does not take issue with this specific finding on appeal. Rather, plaintiff argues that, because the Fund has neither pleaded nor proved prejudice for any delay in forwarding the pleadings in the third-party action (and the Tambini action), the Fund is obligated to defend it in the Tambini action.

While the Fund received notice of Tambini's accident four days after it occurred by way of the C-2 claim form seeking workers' compensation benefits, this notice did not satisfy plaintiff's separate obligation to provide prompt notice of the third-party lawsuit that had been commenced against it (see T & S Masonry v State Ins. Fund, 290 AD2d 308, 310 [2002]; Thomson v Power Auth. of State of N.Y., 217 AD2d 495, 496 [1995]; 57th St. Mgt. Corp. v Zurich Ins. Co., 208 AD2d 801, 802 [1994]; see generally Sorbara Constr. Corp. v AIU Ins. Co., 41 AD3d 245, 246 [2007]). Moreover, we find that the Fund was not required to demonstrate prejudice in order to successfully disclaim coverage (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., supra; Argo Corp. v Greater N.Y. Mut. Ins. Co., supra; see also Thomson v Power Auth. of State of N.Y., 217 AD2d at 495; 57th St. Mgt. Corp. v Zurich Ins. Co., 208 AD2d at 801). We are unpersuaded that recent departures from the general "no prejudice" rule in the context of supplemental uninsured and underinsured motorists coverage under automobile insurance policies (see e.g. Rekemeyer v State Farm Mut. Auto Ins. Co., 4 NY3d 468 [2005]; Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491 [2002]; Matter of Nationwide Mut. Ins. Co. [Mackey], 25 AD3d 905 [2006]) should be extended to the facts of this case.

Mercure, J.P., Spain, Malone Jr. and Stein, JJ., concur.

ORDERED that the judgment is affirmed, with costs.

Footnotes

 

Footnote 1: The policy issued by the Fund was a workers' compensation and employers' liability policy.

Footnote 2: While Westport initially disclaimed coverage and was also named as a party in this declaratory judgment action, the dispute between plaintiff and Westport has been settled and is therefore not before us.

Footnote 3: Since the undisputed proof establishes that the Fund issued a written disclaimer five days after first learning of the third-party action and one day after receiving requested pleadings, no question of fact has been raised concerning the timeliness of the Fund's disclaimer. In other words, the undisputed facts demonstrate that the Fund disclaimed within, at most, five days which, as a matter of law, cannot be deemed unreasonable (see First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64, 68-69 [2003]; Matter of Temple Constr. Corp. v Sirius Am. Ins. Co., 40 AD3d 1109, 1112 [2007]). Accordingly, we need not tarry over the disputed issue of whether Insurance Law § 3420 (d), which requires insurers to provide written notice of any disclaimer of liability or denial of coverage as soon as is reasonably possible, applies to the Fund (see Insurance Law § 1108 [c]).

 

Cook v. Castillo Livery Corp.


Rivkin Radler, LLP, Uniondale (Cheryl F. Korman of counsel),
for appellant.
Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac
of counsel), for Wanda Cook, respondent.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for Castillo Livery Corp. and
Victor Castillo, respondents.

Judgment, Supreme Court, Bronx County (Patricia Anne Williams, J., and a jury), entered January 31, 2008, in an action arising out of a motor vehicle accident, inter alia, awarding plaintiff pre-structured damages in the principal amounts of $190,000 for past pain and suffering and $325,000 for future pain and suffering over 20 years, plus interest, costs and disbursements, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about October 10, 2007, which denied defendant-appellant's post-trial motion to set aside the verdict on the issue of serious injury, or, in the alternative, to set aside the damages awards as excessive, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

A fair interpretation of the evidence supports the jury's finding that plaintiff sustained a permanent consequential limitation of use of her right knee (Insurance Law § 5102[d]; see McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 206 [2004]). The damages awarded do not deviate materially from what would be reasonable compensation (CPLR 5501[c]; cf. Schultz v Turner Constr. Co., 278 AD2d 76 [2000]; Garcia v Queens Surface Corp., 271 AD2d 277 [2000]; Cruz v Manhattan & Bronx Surface Tr. Operating Auth., 259 AD2d 432 [1999]).

Palmeri v. Zurn


Calendar Date: September 5, 2008
Before: Cardona, P.J., Mercure, Peters, Carpinello and Kavanagh, JJ.

Law Office of Daniel Persing, Albany (Daniel J.
Persing of counsel), for appellants.
Hanson & Fishbein, Albany (Paul G. Hanson of
counsel), for respondents.

MEMORANDUM AND ORDER

Carpinello, J.

Appeal from an order of the Supreme Court (McNamara, J.), entered September 27, 2007 in Albany County, which granted defendants' motion for summary judgment dismissing the complaint.

Plaintiffs commenced this action seeking damages for physical and psychological injuries to plaintiff Charlotte Palmeri (hereinafter plaintiff) as a result of a December 28, 2002 motor vehicle accident. At issue is an order of Supreme Court granting defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Upon our review of the record, we find that the motion was properly granted. We therefore affirm.

The categories of serious injury alleged before Supreme Court were limited to significant limitation of use of a body function or system and a medically determined nonpermanent injury which prevented her from performing substantially all of her customary daily activities for at least 90 of the first 180 days immediately following the accident [FN1]. She specifically alleges that she suffers from "legamintos and muscular strain" of her lower back, right shoulder and neck, as well as posttraumatic stress disorder. According to plaintiff, despite physical therapy, chiropractic treatments, pain management treatments and medication, she has been unable to get relief from all pain, particularly in her back. She further alleges that she has been restricted in her vocation as a musician, in the performance of certain daily chores and in her enjoyment of certain recreational activities. She further alleges problems with sleep and depression.

As to plaintiff's alleged physical injuries, defendants, in support of summary judgment, submitted the sworn report of an orthopedic surgeon who performed an independent physical examination of her, as well as reviewed certain pleadings and medical records. This physician's examination of plaintiff detected no objective abnormal findings. For example, his report reveals normal findings upon cervical and lumbosacral spine examinations (with no tenderness or evidence of spasms in either region or sacroiliac pain with palpation), no swelling, redness or tenderness to either shoulder and normal range of motion tests. He specifically notes that there was no evidence of a ligament or muscle strain in plaintiff's lower back or on the right side of her shoulder, neck, pelvis or buttocks.

To the extent that plaintiff made "multiple complaints" of pain in "multiple body areas" during the examination, this physician found such complaints were inconsistent with his "non physiologic findings." Indeed, he found "no objective causal relationship" between her physical complaints and the accident, finding instead that her complaints were subjective. He specifically opined that no objective medical evidence existed to support the claim of significant limitation of any body function or system or a medically determined injury of a nonpermanent nature which prevented her from performing substantially all of her usual daily activities for not less than 90 days during the 180 days immediately following the accident. With respect to plaintiff's alleged psychological injuries, defendants submitted an affidavit of a licensed clinical psychologist who performed an independent psychological examination of her and also reviewed her medical records. This psychologist opined that plaintiff suffers only from a "mild pain disorder" and does not suffer from either posttraumatic stress disorder or major depression (compare Brandt-Miller v McArdle, 21 AD3d 1152, 1154 [2005]). In our view, defendants' submissions were sufficient to make a prima facie showing that plaintiff did not sustain a serious injury (see e.g. Alteri v Benson, 50 AD3d 1274 [2008]; compare Brandt-Miller v McArdle, supra).

Plaintiffs, in turn, failed in their shifted burden of raising a triable issue of fact by coming forward with competent medical evidence based upon objective medical findings and tests (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). To establish the significant limitation category of serious injury, "the medical evidence must provide either a quantitative or qualitative assessment to differentiate serious injuries from mild or moderate ones" (Scott v Aponte, 49 AD3d 1131, 1134 [2008] [internal quotation marks and citation omitted]). Here, plaintiffs' proof fell short of demonstrating that any injury physical or psychological — constituted a significant limitation. In particular, no physician quantified any alleged physical and/or psychological loss or limitation or provided a qualitative comparison of plaintiff's condition to normal function (see Toure v Avis Rent A Car Sys., 98 NY2d at 350-351; see e.g. Pianka v Pereira, 24 AD3d 1084, 1085-1086 [2005]; Brandt-Miller v McArdle, 21 AD3d at 1155; Clements v Lasher, 15 AD3d 712, 713 [2005]; Burford v Fabrizio, 8 AD3d 784, 785 [2004]; Kristel v Mitchell, 270 AD2d 598, 599 [2000]). Likewise, with respect to the 90/180-day category, we are satisfied that plaintiffs failed "to establish, through objective medical evidence, a nonpermanent, medically-determined injury which prevented [plaintiff] from performing substantially all of her usual and customary daily activities for 90 of the first 180 days following the accident" (Dongelewic v Marcus, 6 AD3d 943, 944 [2004]; see Clements v Lasher, 15 AD3d at 713-714; Burford v Fabrizio, 8 AD3d at 786). This being the case, summary judgment in defendants' favor was in all respects appropriate.

Cardona, P.J., Mercure, Peters and Kavanagh, JJ., concur.

ORDERED that the order is affirmed, with costs.

Footnotes


Footnote 1: To the extent that plaintiffs argue on appeal that the record supports the permanent consequential limitation category of serious injury, their failure to assert this claim before Supreme Court precludes our consideration of it (see Mrozinski v St. John, 304 AD2d 950, 951 [2003]).

 

Africk v Young



Serpe, Andress & Kaufmann, Huntington, N.Y. (Jonathan J.
Kaufman of counsel), for respondent.

DECISION & ORDER

In a subrogation action to recover amounts paid by the plaintiff to its insured for injury to property, the plaintiff appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Westchester County (Smith, J.), dated January 18, 2008, as, upon an order of the same court dated November 2, 2007, in effect, granting that branch of the defendant's motion which was pursuant to CPLR 4404(b) to set aside so much of a decision of the same court dated August 30, 2007, and amended September 20, 2007, made after a nonjury trial, as determined that the defendant was liable to it in the sum of $5,870.35, is in favor of the defendant and against it dismissing the complaint.

ORDERED that on the Court's own motion, the notice of appeal from the order dated November 2, 2007, is deemed a premature notice of appeal from the judgment (see CPLR 5520[c]); and it is further,

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

Arroway Chevrolet, Inc. (hereinafter Arroway), loaned a vehicle to the defendant while it was servicing his vehicle. The defendant subsequently damaged the loaned vehicle in a one-car collision. Arroway's insurer, the plaintiff Motors Insurance Corp. (hereinafter the insurer), paid Arroway's claim for the damage under its comprehensive and collision policy and commenced this subrogation action against the defendant to recover the amount it had paid Arroway.

An insurer has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered (see North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281, 294; Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 471; Lodovichetti v Baez, 31 AD3d 718, 719; Blanco v CVS Corp., 18 AD3d 685, 686). For the purposes of the antisubrogation rule, a permissive user of an insured vehicle is treated no differently than a named insured (see Jefferson Ins. Co. of N.Y. v Travelers Indem. Co., 92 NY2d 363, 374-375).

Here, the insurer does not dispute that the Supreme Court properly found that Arroway's loan of the vehicle to the defendant made him a permissive user (see Matter of Liberty Mut. Ins. Co. v Clench, 180 AD2d 684). Moreover, under the terms of the relevant policy, the insurer agreed to indemnify Arroway for "loss to a covered auto caused by . . . collision with another object," and for "loss to a covered auto caused by the failure of a person in lawful possession of a covered auto under a lease, rental or loaner agreement to return it to a dealer in accordance with the terms of the agreement." Thus, the insurer is seeking recovery from a permissive user, authorized by its insured, for a claim arising from the very risk for which the insured was covered, an outcome barred by the antisubrogation rule (see Jefferson Ins. Co. of N.Y. v Travelers Indem. Co., 92 NY2d at 374-375; North Star Reins. Corp. v Continental Ins. Co., 82 NY2d at 294).

The insurer's remaining contentions are without merit.

Flax v Lincoln National Life Insurance Company


L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y.
(Monte E. Sokol and David Maunz of counsel), for appellants
Lincoln National Life Insurance Company and Aetna Life Insurance and
Annuity Company.
Winget, Spadafora & Schwartzberg, LLP, New York, N.Y.
(Matthew Tracy of counsel), for
appellants Estate of Timothy Henry
Shoecraft, Graydon Garner, Colburn
International, Inc. and Independent Financial
Group, Inc.
Ackerman, Levine, Cullen, Brickman & Limmer, LLP, Great
Neck, N.Y. (John M. Brickman and
Kira L. Polner of counsel), for
respondents.

DECISION & ORDER

In an action to recover damages for breach of contract, fraud, and negligent misrepresentation, the defendants Lincoln National Life Insurance Company and Aetna Life Insurance and Annuity Company appeal, and the defendants Estate of Timothy Henry Shoecraft, Graydon Garner, Colburn International, Inc., and Independent Financial Group, Inc., separately appeal, as limited by their respective notices of appeal and briefs, from so much of an order of the Supreme Court, Nassau County (Spinola, J.), entered May 21, 2007, as, upon granting those branches of their separate motions which were to dismiss the causes of action to recover damages for breach of contract, fraud, and negligent misrepresentation, determined that the complaint stated a cause of action to recover damages for violation of General Business Law § 349.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the plaintiffs to the defendants appearing separately and filing separate briefs, and the motion to dismiss the complaint is granted in its entirety. 

In 1999, insurance agents Timothy Shoecraft and Graydon Garner marketed a flexible premium variable life insurance policy to the plaintiff Dr. Herschel Flax. This insurance policy contained an investment component allowing the policyholder to control how the premiums were to be invested. Dr. Flax alleges that the insurance agents marketed the policy as an estate planning device, representing that an initial investment of $1 million in premiums would yield at least $4.5 million in death benefits, which would not be subject to estate taxes because the policy would actually be owned by a life insurance trust created for that purpose. An illustration which the agents prepared for Dr. Flax assumed that the mutual funds in which the premiums were to be invested would yield an annual return of 10%, which would support the projected death benefits. However, the illustration also expressly provided that it should not be considered a representation of future investment results because "[a]ctual investment results may be greater or lesser than those shown and will depend upon a number of factors, including the investment choices and allocations made by the owner of the policy and the different rates of return earned by those investments." Dr. Flax asserts that he did not need or want additional life insurance when he agreed to purchase the policy, and that the illustrated investment returns were the main selling point of the policy as marketed. The policy never realized the 10% percent annual return projected by the insurance agents' illustration, and by December 2004 the death benefits payable under the policy had decreased to $1,659,3333, and the cash value of the policy had declined to $300,000.

In December 2005 the plaintiffs commenced this action against the insurance agents who had marketed the policy to Dr. Flax, and the insurance companies that had issued the policy, seeking damages for breach of contract, fraud, and negligent misrepresentation. The plaintiffs alleged that the insurance company defendants had breached the insurance contract because the policy failed to perform as illustrated, and the total cost of insurance provided ultimately amounted to almost 50% of the policy's premiums. The plaintiffs further claimed that the insurance agent defendants, inter alia, had fraudulently represented that life insurance was only an incidental benefit of the policy, and had concealed the fact that life insurance constituted the major portion of the cost of the policy. The insurance company defendants and the insurance agent defendants separately moved to dismiss the complaint for failure to state a cause of action. The Supreme Court granted those branches of the defendants' motions which were to dismiss the breach of contract, fraud, and negligent misrepresentation claims, noting, among other things, that disclaimers contained in the policy and the promotional materials provided to Dr. Flax were sufficient to absolve the defendants of fraud. However, although no cause of action was asserted pursuant to General Business Law § 349, the court concluded that the complaint stated a cause of action to recover damages for a deceptive act or business practice in violation of that statute.

On a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must accept all of the facts alleged in the pleading to be true, and accord the plaintiff the benefit of every possible favorable inference in determining whether the allegations fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83; Smith v Meridian Technologies, Inc., 52 AD3d 685; Mancuso v Rubin, 52 AD3d 580). Applying these principles here, the factual allegations set forth in the complaint fail to set forth a viable claim to recover damages for a violation of General Business Law § 349. General Business Law § 349 is a broad consumer protection statue which declares "deceptive acts or practices in the conduct of any business, trade or commerce" to be unlawful (see Stutman v Chemical Bank, 95 NY2d 24, 28). "As a threshold matter, in order to satisfy General Business Law § 349 plaintiffs' claims must be predicated on a deceptive act or practice that is consumer oriented'" (Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330; 344, quoting Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 24-25). Deceptive acts or practices may be considered "consumer oriented" when they have a broad impact on consumers at large (see Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25). In contrast, private contract disputes which are unique to the parties do not fall within the ambit of the statute (id. at 25). Here, the plaintiffs do not allege that the defendants engaged in deceptive business practices directed at members of the public generally who purchased flexible premium life insurance policies (cf. Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330; Shebar v Metropolitan Life Ins. Co., 25 AD3d 858, 859; Monter v Massachusetts Mut. Life Ins.Co., 12 AD3d 651). Rather, the plaintiffs' claim is predicated upon allegations that the insurance agents marketed the policy to Dr. Flax by making misleading oral representations regarding the nature of the policy, and projecting the death benefits the policy would provide based upon an estimate that the investments selected by Dr. Flax would yield a 10% rate of return. These marketing practices are unique to Dr. Flax, and do not have an impact on the public at large. Accordingly, the factual allegations set forth in the complaint are insufficient to show that the defendants engaged in consumer oriented conduct, and do not state a cause of action for violation of General Business Law § 349 (see Brooks v Key Trust Co. N.A, 26 AD3d 628; Berardino v Ochlan, 2 AD3d 556, 557).

The plaintiffs' request for leave to amend the complaint is improperly made for the first time on appeal (see Dimovich v Onbank & Trust Co., 242 AD2d 922, 923; Butler v Gibbons, 173 AD2d 352, 353.

In view of our determination, we do not reach the defendants' remaining contentions.
LIFSON, J.P., FLORIO, ENG and BELEN, JJ., concur.

Doyle v Siddo



Law Offices of Steve C. Okenwa, P.C., Brooklyn, N.Y., for
defendant third-party plaintiff-appellant.
Alison R. Lam, New York, N.Y., for third-party
defendant-respondent.

DECISION & ORDER

In an action, inter alia, to impose a constructive trust upon certain real property, the defendant third-party plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated September 27, 2007, as granted that branch of the motion of the third-party defendant Chicago Title Insurance Company which was for summary judgment dismissing the third-party complaint insofar as asserted against it and denied that branch of his cross motion which was for summary judgment on the third-party complaint insofar as asserted against Chicago Title Insurance Company.

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

Contrary to the contention of the appellant, Roland Tibert, the policy of title insurance at issue in this case clearly and unambiguously excepted from coverage all liability he incurred by reason of the rights of persons in possession of the subject premises (see generally Herbil Holding Co. v Commonwealth Land Tit. Ins. Co., 183 AD2d 219, 224). Since the claim submitted by Tibert fell squarely within this exception from coverage, the Supreme Court properly granted that branch of the motion of the respondent, Chicago Title Insurance Company (hereinafter Chicago Title), which was for summary judgment dismissing the third-party complaint insofar as asserted against it and denied that branch of Tibert's cross motion which was for summary judgment on the third-party complaint insofar as asserted against Chicago Title. In this regard, Tibert's contention that Chicago Title failed to promptly disclaim coverage, which is premised on case law discussing the prompt disclaimer requirement of Insurance Law § 3420(d), is without merit. The requirements of Insurance Law § 3420(d) are expressly limited to claims for bodily injury or death arising out of accidents (see e.g. Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185; American Ref-Fuel Co. v Employers Ins. Co. of Wausau, 265 AD2d 49) and have no application to other claims such as the title dispute in this case (see e.g. Merchants Mut. Ins. Co. v Allcity Ins. Co., 245 AD2d 590, 592; Interested Underwriters at Lloyd's v H.D.I. III Assoc., 213 AD2d 246, 247).

Tibert's remaining contentions either are without merit or need not be reached in view of our decision.
MASTRO, J.P., SKELOS, COVELLO and LEVENTHAL, JJ., concur.

Poblocki v. Tororo, M.D.


Appeals from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered July 2, 2007 in a medical malpractice action. The order granted the motion of HealthNow New York, Inc. for permission to intervene.

BROWN & TARANTINO, LLC, BUFFALO (ANN M. CAMPBELL OF COUNSEL), AND HEIDELL, PITTONI, MURPHY & BACH, NEW YORK CITY, FOR DEFENDANTS-APPELLANTS.
WEBSTER SZANYI LLP, BUFFALO (DONALL O'CARROLL OF COUNSEL), FOR INTERVENOR-RESPONDENT.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff, individually and as administrator of the estate of his wife (decedent), commenced this action seeking damages for the alleged medical malpractice of defendants in their diagnosis and treatment of decedent. We conclude that Supreme Court properly granted the motion of HealthNow New York, Inc. (HealthNow) seeking permission to intervene in the action pursuant to CPLR 1012 and 1013. HealthNow, decedent's insurer, moved to intervene on the ground that it had a contractual right of subrogation for the expenditures that it made for the medical care provided to decedent. Contrary to the contention of defendants Carmen Todoro, M.D. and/or Carmen Todoro, M.D., P.C. and OB-GYN Associates of Western New York, P.C. (collectively, Todoro defendants), the fact that HealthNow is barred from commencing its own action against them based on the statute of limitations does not preclude intervention inasmuch as HealthNow's claims relate back to the filing of plaintiff's complaint (see CPLR 203 [f]; Omiatek v Marine Midland Bank, N.A., 9 AD3d 831, appeal dismissed 3 NY3d 738; Kaczmarski v Suddaby, 9 AD3d 847, appeal dismissed 3 NY3d 738). Contrary to the further contention of the Todoro defendants, CPLR 4545 (c) does not preclude a health insurer from seeking subrogation (see Omiatek, 9 AD3d at 832; Kaczmarski, 9 AD3d 847). 

We reject the contention of the Todoro defendants that HealthNow's motion was untimely and that they are unduly prejudiced by the delay. Although HealthNow did not seek to intervene until over four years from the time that it became aware of plaintiff's potential malpractice claims, we conclude that the court neither abused nor improvidently exercised its discretion in granting HealthNow's motion where, as here, the Todoro defendants will suffer no prejudice from the delay (cf. Oparaji v Weston, 293 AD2d 592, 593; Rectory Realty Assoc. v Town of Southampton, 151 AD2d 737, 737-738). HealthNow demands no additional discovery, and the Todoro defendants have already conducted discovery on the various medical expenses paid on behalf of decedent. Contrary to the final contention of the Todoro defendants, the intervention of HealthNow does not increase their liability inasmuch as the complaint sought unspecified damages for all "losses and damages as a result of the defendant[s'] negligence and malpractice."