Coverage Pointers - Volume XI, No. 13

Dear Coverage Pointer Subscribers:

 From our home to yours, we wish you all the most joyous of holiday seasons and the healthiest and most successful of new years.

With visions of sugarplums dancing in our heads, your Coverage Pointers staff is about to close up shop for 2009 and we present to you our year's final issue.

So you know, we'll be working next week, so if you're lonely or in need of some coverage banter, feel free to call. Also, you can always find us on the interactive version of Coverage Pointers, our LinkedIn New York Insurance Group, which we created and moderate.

Medicare Secondary Payer
We received so many positive responses on Scott "The Duke of Lead" Duquin's series on lead paint claims; we have been looking for another opportunity to present articles on a discreet and important topic.

 We are presenting a mini-series on Medicare Secondary Payer rules. With the arrival of the New Year comes the full implementation of the Medicare Secondary Payer rules for defendants and insurance companies. Mike "The Liening Tower of" Perley has traveled extensively this year speaking on this important topic. We will, periodically, include articles from Mike on the issues that you are now facing, the first of such articles will be found in the attached issue. Mike is available to train claims professionals on this evolving topic. Feel free to contact him at [email protected], to ask him about his latest presentation, "Tiptoeing Through the MSP Minefield."

The Year in Review and the Status of New York Bad Faith
In the past 10½ years, your compulsive Coverage Pointers staff has summarized every New York appellate decision involving insurance coverage. How many is that? We haven't counted back to the beginning, but in the past three calendar years, we have brought you some 1877 NY appellate reviews. This year, in addition, we have had 25 Earl's Pearls articles (from our prolific scribe, Earl Cantwell), and Scott Duquin's Lead Paint series, along with a couple of special editions.

 Putting the year 2009 in perspective:

  • In 2007, we reported on 651 New York appellate decisions involving insurance coverage. In only one of them, did an appellate court allow a bad faith case to proceed to trial. I summarized 276 opinions in my column, 226 "serious injury" threshold cases were reviewed and Audrey Seeley gave us angles on 123 No Fault decisions. Steve Peiper reviewed 26 first party and "potpourri" appeals.
  • In 2008, we summarized 679 appellate coverage decisions.  I had an easy year, with an even 200 summaries.  Margo Laugeras and her predecessor commented on reviewed 226 "serious injury" threshold cases.  Audrey was a mite busier with 176 appellate and arbitration awards covered in Audrey's Angles.  Steve about tripled his workload reviewing 77 in Peiper's Property and Potpourri column.  Not a single bad faith determination was affirmed by an appellate court.
  • In 2009, we had a slacker year. The economy must have impacted on appellate courts. We had a mere 557 appellate decisions to review, with 173 appearing in my column, 206 in Margo's, 93 in Audrey's, 81 in Steve's and four in Kathie Fijal's offering federal cases, which was added towards the end of the year. 

 However, again, there wasn't a single bad-faith case - either first or third party -- affirmed by an appellate court.

 We must point out that the year ended on a troubling note. In this week's issue, you will find that the First Department revisits Panasia Estates, the second half of the Bi-Economy doublet. You'll recall that those two decisions suggested that an insurer may be subject to an award of consequential damages for breach of contract. In this week's issue, the Court makes it somewhat clearer that there need be no finding of bad faith before these damages can be awarded.

 

One Hundred Years Ago, John Rockefeller Plays Scrooge:

ASKED GIFT OF ROCKEFELLER
Little Girl Promptly Taken to the Police
by the Butler and Jailed
New York Times
December 25, 1909, Page 1 

A nine-year-old girl who rang the bell at John D. Rockefeller's home, 4 West Fifty-Fourth Street yesterday to ask for alms was turned over to a policeman by the servant who answered the bell, and soon afterward, the child was taken to the Children's Society, a prisoner. The child said that she has traveled from Worcester, Mass, in the morning, having been sent by her father, who told her that Mr. Rockefeller would give her money for Christmas.


The girl said that she was Mary Basanian, daughter of Henry Basanian, of 50 Laurel Street in Worcester. She said her father had given her money to come to New York and that she had left Worcester on the 9:30 AM train. Here, she asked different people in the streets until she was directed to the Rockefeller home. Nicholas Stanton, the butler, who responded to the bell, took the girl to the East Fifty-Fourth Street Station. He said that she asked for Mr. Rockefeller, saying that he was to give her money to buy Christmas presents, and that he detained her, after telling her that Mr. Rockefeller was not in the city, until he could get his coat and take her to the station. The girl was shabbily dressed, but she had a $5 gold piece and a quarter in her pocket. She will be in the Children's Court on Monday.
Editor's Note: We tried to find the Basanians to confirm the story, but alas, none live in the Worcester area. The New York Tribune carried the same story, but identified the child as Lillian Balagian rather than Mary Basanian and aged her to 12. We couldn't find the Balagian's either. The Syracuse Post Standard identified her as Lillian Bayagian.

 

From Audrey, the Queen of No Fault 

What a year!  There have been a number of important developments in the no-fault world from additional guidance on attorney's fee and interest accrual to the release of proposed amendments which would substantially change the no-fault practice. 

 This edition provides an interesting Christmas-time adventure for one poor insured and the timing of the decision could not have been better for him.  I also have part two of the proposed revisions to the no-fault regulations.

I hope that everyone has a great holiday and a prosperous New Year.  I will speak with you in 2010!

 Audrey
[email protected]

 

One Hundred Years Ago, Even the Anarchists were Celebrating:


CHRISTMAS CELEBRATION
HELD BY ANARCHISTS
Syracuse Post Standard
December 25, 1909, Page 1


NEW YORK. Dec. 24.-Even the Anarchists felt good this Christmas Eve. Burying their characteristic discontent with everything for the time being, they gathered 700 strong tonight in an East Side hall and danced just like any other men and women. There was not a murmur of any kind against presidents, kings, mayors or policemen. 

 Emma Goldman, "Queen of the Reds," was conspicuous, not as a fiery speaker, but as a hostess, pouring Russian tea and serving sandwiches. Alexander Berkman, her companion, appeared not in the role of an agitator, but as a gallant cavalier, rescuing anarchistic maidens from the embarrassment of wall flowerdom. 

 American flags fluttered, in the dense atmosphere of the hall, while an orchestra ground out patriotic airs and snatches of contemporary Broadway songs.

  In this Week's Issue, Attached: 

KOHANE'S COVERAGE CORNER
Dan D. Kohane
[email protected]

  • Lack of Prejudice in Late Reporting of Lawsuit where Timely Notice Given of Accident Results in Invalidation of Disclaimer
  • Where Underlying Policy Referenced Trade Contract Requirements to Determine Amount of Available Coverage, Follow Form Excess Policies Will Incorporate Trade Contracts as Well
  • Excellent Additional Insured and Priority of Coverage Analysis in Second Department Case
  • Waite Waite, Don't Tell Me: Only 20 Days to Move for Stay Following Demand for Arbitration of UM Claim, Where Reason for Stay Is Based on Policy Exclusion
  • Under North Carolina Law, An Insured Vehicle Was Considered Underinsured
  • Panasia Revisited - The Wrong Step Forward
  • Without Language Suggesting Otherwise, "Follow Form" Excess Policies Follow with Respect to Aggregation of Policy Limits.

 

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

  • Speculation Regarding What Expert "Would Have Noted" Is Just That - Speculation
  • 20 Degree Range-of-Motion Limitation on Flexion in Lumbosacral Spine Does Not Constitute Serious Injury
  • Chiropractor's Report, Not In Affidavit Form, Cannot Be Cured by Sur-reply
  • Maximum Medical Improvement Explains Gap in Treatment
  • Failure to Explain Gap in Treatment and Submit competent Medical Evidence Results in Dismissal
  • Causation Is Speculative If Opinion That Findings are Degenerative and Unrelated to Accident Is Not Addressed 

 

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

Arbitration

  • EIP's Alleged Injuries From Alleged Running Over of Foot Not Use and Operation of Auto

 Litigation

  • Sole Disqualified Member Precluded From Maintaining Action - Not Here.

 Office of General Counsel Opinion

  • 11/30/09 OGC Op. No. 09-11-05 - Limitations on No-Fault Attorney Fees


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

Of Property

  • Exclusion for Disputes Arising from Fence Placement Precludes Coverage

 And Potpourri

  • Failure to Establish Privity, as well as Incorrect Information, is Fatal to Plaintiff's Claim against Broker/Agent
  • Where Premises is Not Repaired, Plaintiff has the Burden of Establishing ACV
  • Force of Gravity which Pulls a Worker into Another Object Falls Within the Scope of Protection Afforded Under Labor Law § 240(1)

 

THE LIENING TOWER OF PERLEY
Michael F. Perley
[email protected]
LIEN CUISINE

There is a Medicare (Set Aside) in Your Future 

EARL'S PEARLS
Earl K. Cantwell
[email protected]
Seeing the Way Though Blind Mediation

 That does it. Merry Christmas, Happy Chanukah, Happy New Year and we'll see you next year.

Dan

Hurwitz & Fine, P.C. is a full-service law firm
providing legal services throughout the State of
New York
NEWSLETTER EDITOR
Dan D. Kohane
[email protected]

INSURANCE COVERAGE TEAM
Dan D. Kohane, Team Leader
[email protected]
Michael F. Perley
Katherine A. Fijal
Audrey A. Seeley
Steven E. Peiper
Margo M. Lagueras

FIRE, FIRST-PARTY AND SUBROGATION TEAM
Andrea Schillaci, Team Leader
[email protected]
Jody E. Briandi
Steven E. Peiper

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

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

Index to Special Columns

Kohane’s Coverage Corner
Margo’s Musings on “Serious Injury”
 Audrey’s Angles on No Fault
Peiper on Property and Potpourri
Fijal’s Federal Focus
The Liening Tower of Perley
Earl’s Pearls
Across Borders

KOHANE’S COVERAGE CORNER

Dan D. Kohane
[email protected]

12/22/09         American Transit Insurance Company, v. Hashim
Appellate Division, First Department
Lack of Prejudice in Late Reporting of Lawsuit where Timely Notice Given of Accident Results in Invalidation of Disclaimer

Hashim claims permanent injuries in a collision in October 2005 with another motor vehicle driven by Cuzco.  On November 3, 2005, counsel for Hashim notified American Transit, in writing, of the personal injuries.  Hashim commenced the underlying action against Cuzco, and moved, in May 2006, for default judgment when Cuzco failed to answer.
American Transit wrote to Hashim’s lawyer in mid-June advising that as the default application was its first notification of legal action against its insured, it was accordingly disclaiming coverage under the policy. A default judgment was entered and after a hearing was conducted, a substantial judgment was entered against Cuzco.
The Court holds that, having received timely notice of claim, plaintiff insurer was not entitled to disclaim coverage based on untimely notice of the claimant's commencement of litigation unless it was prejudiced by the late notice, citing to a 2007 decision in American. Tr. Ins. Co v. B.O. Astra (see comment below).  A dissenting judge found no prejudice and suggested that the underlying plaintiff’s counsel may have made it particularly difficult for the carrier to do anything other than it did.
Editor’s Note:  The court relied on a 2007 decision in Astra which we suggest was wrongly decided then and wrongly decided now, and has only been cited twice since for the proposition that prejudice need be shown before a disclaimer can be issued, if timely notice of the accident was received.  In our May 4, 2007 issue of Coverage Pointers (Vol. VIII, No. 22), we took issue with Astra:
4/26/07 American Transit Insurance Company v. B.O. Astra Management Corp.
Appellate Division, First Department
Here’s an Awful Decision:  Ignoring Years of Precedent, First Department Decides that a Liability Carrier that Receives Timely Notice of The Occurrence Must Demonstrate Prejudice Before Denying Coverage if It Does Not Receive Timely Notice of The Lawsuit
Citing Rekemeyer and Matter of Brandon, two uninsured/underinsured (SUM) cases, the First Department had taken a strange and we would suggest, unprecedented position with respect to late notice of a lawsuit.  Here, the insured gave prompt notice of the claim but late notice of the lawsuit.  The court held that having received timely notice of claim, plaintiff insurer was not entitled to disclaim coverage based on untimely notice of the claimant's commencement of litigation unless it was prejudiced by the late notice.  The court held, without explanation, that in enacting Insurance Law § 3420, the Legislature has made it clear that the right of a claimant to seek recovery of insurance proceeds is not defeated by the insured's failure to perform its claim-related obligations.
Editor’s note:  I’ve read that statute perhaps 1,000 times and I have not found that clarity! I don't recall any court finding it before. Indeed, the Court of Appeals, our highest court, said something entirely different a couple of years ago in Argo Corp. v. Greater N.Y. Mut. Ins. Co., 4 N.Y.3d 332, 340 (N.Y. 2005):
The rationale of the no-prejudice rule is clearly applicable to a late notice of lawsuit under a liability insurance policy. A liability insurer, which has a duty to indemnify and often also to defend, requires timely notice of lawsuit in order to be able to take an active, early role in the litigation process and in any settlement discussions and to set adequate reserves. Late notice of lawsuit in the liability insurance context is so likely to be prejudicial to these concerns as to justify the application of the no-prejudice rule. Argo's delay was unreasonable as a matter of law and thus, its failure to timely notify GNY vitiates the contract. GNY was not required to show prejudice before declining coverage for late notice of lawsuit.
Of course, this is all before the new changes that take effect for policies issued after 1/18/09.
12/22/09         Metropolitan Transportation Authority v. Zurich American Ins. Co.
Appellate Division, First Department
Where Underlying Policy Referenced Trade Contract Requirements to Determine Amount of Available Coverage, Follow Form Excess Policies Will Incorporate Trade Contracts as Well
Zurich issued a follow-form excess policy which incorporated the terms and conditions of the underlying $1 million primary policy to the extent the terms were not inconsistent. The underlying policy provided that additional insureds, such as the MTA, would be covered up to the lesser of the policy limits or the amount required by their trade contracts with the insured.  As such, the trade contract limitation was incorporated into the excess policy.

12/15/09         William Floyd School Dist. v Maxner
Appellate Division, Second Department
Excellent Additional Insured and Priority of Coverage Analysis in Second Department Case
General Contract
The School District (“District”) contracted with Aurora to be the general contractor on a construction project for a new middle school.  Aurora was to provide the District with primary coverage and Aurora secured a policy through QBE.  The Certificate of Insurance identified the District as an additional insured.

Subcontract
Aurora subcontracted the obligation to supply kitchen equipment to Premium and Premium was to provide Aurora with insurance.  Premium was insured with Royal and Royal Insurance provided Aurora with a certificate of liability insurance listing Aurora and the school district as additional insureds on that policy

Sub-Subcontract
Premium subcontracted some of the contracting work to Dee's Associated.  Maxner, an employee of Dee's Associated, allegedly was injured while performing this work.
Maxner sued the District and Aurora. The school district and its insurer, Transportation Insurance Company (hereinafter TIC), then commenced this action, seeking a judgment declaring that the school district plaintiffs are additional named insureds under Aurora's policy with QBE, QBE is obligated to defend and indemnify them in the underlying action, and TIC is entitled to recoup defense costs it actually paid.  Aurora and QBE commenced a third-party action against Royal, seeking a judgment declaring that the school district plaintiffs and Aurora are additional named insureds under the Premium policy with Royal, Royal is obligated to defend and indemnify the school district plaintiffs and Aurora in the underlying action on a primary, noncontributory basis, and QBE is entitled to recoup defense costs it actually paid

  • Irrespective of negligence, QBE and Aurora established that the District and Aurora are additional insureds under the Royal policy, are insured under that policy for liability arising out of the underlying accident, and are entitled to a defense and indemnification from Royal in the underlying action.   That is because the subcontract required Premium to name QBE and Aurora as additional insured and the Royal policy did just that, providing coverage "with respect to liability arising out of [Premium's] ongoing operations performed for that additional insured by the named insured at the location designated in the written contract." Maxner allegedly was injured while performing work encompassed within Premium's subcontract with Aurora, so coverage is afforded.

As to priority between the Royal policy and the Aurora policy issued through QBE, the Royal policy provided that if the underlying contract entered into by its insured required it to be primary, it would. The Court found that the contract requiring additional insured coverage was a requirement to provide primary coverage (Pecker Iron Works of N.Y. v Traveler's Ins. Co., 99 NY2d 391). Since the Aurora policy with QBE provides that it is excess over any policy provided by an additional insured endorsement, as between QBE and Royal, Royal is primary and QBE is excess.
1215/09          In the Matter of State Farm Mutual Automobile v. Waite
Appellate Division, Second Department
Waite Waite, Don’t Tell Me: Only 20 Days to Move for Stay Following Demand for Arbitration of UM Claim, Where Reason for Stay Is Based on Policy Exclusion
State Farm moved to permanently stay uninsured motorists but missed that annoying 20-day deadline to do so.  Since the reason for the requested stay was based on a policy exclusion (rather than a grant of coverage), the failure to move within the twenty days is fatal to its application.

Had the State Farm application been based on a shortfall in the grant of coverage, the 20-day time period would not be applicable and the application to stay would have been timely.
Editor’s Note:  This reminds us that coverage cannot be created by waiver, but policy exclusions and conditions can be lost by waiver.

12/15/09         In the Matter of State Farm Mutual Automobile v. Gray
Appellate Division, Second Department
Under North Carolina Law, an Insured Vehicle Was Considered Underinsured
Gray was operating a car back on Mary 9, 2005, when he had a New York accident.  Gray was operating a car registered in his name in North Carolina when she collided with the tortfeasor’s car, which was registered in New York.
State Farm issued the North Carolina policy to Gray’s husband, Wallace and it had liability limits of $100.000/$300,000.and the Declarations Page indicated that it contact uninsured motorist coverage, designated as coverage "U."
With consent, Gray settled the claim against the tortfeasor for the $25,000 policy limits on the other car (insured by AIG) and Gray then filed a claim for underinsured coverage benefits. State Farm took the position that the policy did not provide for underinsured benefits, only uninsured benefits and denied the claim and then moved, when arbitration was demanded, for a permanent stay.
The court held that under North Carolina law, the tortfeasor’s car was, in fact, uninsured (even though it had insurance).  The definition of “uninsured motor vehicle” in the NC policy is one where "policy applies at the time of the accident; provided its limit for liability is less than the minimum limit specified by the financial responsibility law of North Carolina."  The minimum limits in North Carolina are $30,000/$60,000 and since the vehicle only had $25,000 in coverage, it was underinsured (and thus, “uninsured” under the definition).
There was no proof that underinsured coverage was rejected under North Carolina law.

12/15/09         Panasia Estates, Inc. v. Hudson Insurance Company
Appellate Division, First Department
Panasia Revisited – The Wrong Step Forward
Many will recall the Bi-Economy case, the 2008 Court of Appeals decision holding that an insurer can be held liable for consequential damages even in the absence of bad faith, for breach of an insurance contract.  That decision was part of a pair of decisions on the subject, the other being Panasia Estates.  Following the Court of Appeals decision, the insured in Panasia moved to amend its complaint to allege a claim for consequential damages as a result of breach of contract.  The motion to amend the complaint should not have been granted since the breach of contract claim that plaintiff sought to add was duplicative of its existing claim for breach of the implied covenant of good faith.  The insurer argued that consequential damages were not properly pleaded but the appellate court held that Bi-Economy was not intended to establish a requirement of specificity in pleading.

This is a “pleading case” and not a “proof case.”  Is the First Department suggesting that “any” breach of a policy gives rise to a claim for consequential damages OR must there still be proof of a breach of the covenant of “good faith and fair dealing.”

It is clear that one need not demonstrate “bad faith” to be entitled to consequential damages, under the pair of Court of Appeals decisions.  What is not yet clear is whether there must still be proof of a breach of the implied covenant of good faith.
Editor’s Note:  As many of you know, the “interactive” arm of Coverage Pointers is the LinkedIn New York Insurance Coverage group which your editor has created and moderates.  We welcome your participation.  Visit www.linkedin.com and search for the group: New York Insurance group and if you’re not a member, simply place a request and we’ll add you as a member.

12/15/09         Union Carbide Corporation v. Affiliated FM Insurance Company
Appellate Division, First Department
Without Language Suggesting Otherwise, “Follow Form” Excess Policies Follow with Respect to Aggregation of Policy Limits
A declaration in each multi-year policy specifies a dollar amount as the "limit of liability" under the policy and states that the limit applies to each occurrence and "in the aggregate." As the phrase "in the aggregate" is unambiguous, the “follow form” excess policies are to be construed the same way.  


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

Margo M. Lagueras
[email protected]

12/22/09         D’Ariano v. Meldish
Appellate Division, First Department
Speculation Regarding What Expert “Would Have Noted” Is Just That – Speculation
Defendants showed that the plaintiff’s condition was degenerative in nature and unrelated to the accident.  In opposition, the plaintiff’s physician speculated that had the radiologist who performed the MRI observed degenerative disc disease, he would have reported it.  This is held to be mere speculation, properly rejected by the trial court, and not sufficient to rebut the defendants’ proof.

12/17/09         Sone v. Qamar
Appellate Division, First Department
20 Degree Range-of-Motion Limitation on Flexion in Lumbosacral Spine Does Not Constitute Serious Injury
The defendants’ victory is affirmed where their examining neurologist found only a 20 degree range-of-motion limitation on flexion in the plaintiff’s lumbosacral spine and additionally opined that it was not causally related to the accident.  The plaintiff submitted nothing to raise a triable issue of fact, instead merely relying on the defendants’ doctor’s report.

12/15/09         McMullin v. Walker
Appellate Division, Second Department
Chiropractor’s Report, Not In Affidavit Form, Cannot Be Cured by Surreply
The “Final Narrative” medical report of the plaintiff’s chiropractor was not in affidavit form and was therefore insufficient to raise a triable issue of fact.  Plaintiff attempted to cure the defect by submitting an affidavit of the chiropractor, which included the “Final Narrative,” in a surreply.  The Court holds that this “Supplemental Affirmation in Opposition” was improper and should not have been considered. 

The plaintiff’s case did not improve with her submission of unaffirmed medical reports, the submission of an affirmed report noting significant range-of-motion limitations based on a recent examination, but no contemporaneous one, or her own deposition testimony which indicated she only missed a week of work.

12/15/09         Eusebio v. Yannetti
Appellate Division, Second Department
Maximum Medical Improvement Explains Gap in Treatment
Here, the plaintiff’s treating chiropractor explained that the plaintiff stopped treating because she had reached maximum medical improvement and further care would have been only palliative.  This is sufficient holds the Court.  The chiropractor also based his affidavit on both contemporaneous and recent examinations in which he noted range-of-motion limitations which he opined were significant, permanent, and causally related to the accident.  The defendants’ motion is denied.

12/15/09         Collado v. Abouzeid
Appellate Division, Second Department
Failure to Explain Gap in Treatment and Submit competent Medical Evidence Results in Dismissal
The affidavit of the plaintiff’s treating chiropractor did not explain the cessation of treatment, and the plaintiff herself failed to submit competent medical evidence to support her claim under the 90/180-day category of serious injury, resulting in the dismissal of the complaint.

12/15/09         Mensah v. Badu
Appellate Division, Second Department
Causation Is Speculative If Opinion That Findings are Degenerative and Unrelated to Accident Is Not Addressed
In addition to running afoul of the rules regarding insufficiency of uncertified medical records and lack of both contemporaneous and recent examinations, the plaintiff’s experts did not address the findings of the defendants’ radiologist who concluded that the bulging and herniated discs seen in the MRIs of the plaintiff's cervical spine were degenerative and unrelated to the accident.  The result was a reversal on appeal and dismissal of the complaint.

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

Arbitration
12/18/09         WNY Physical and Occupational Therapy Group PLLC a/a/o Douglas Kochan v. State Farm Mut. Auto. Ins. Co.
Arbitrator Veronica K. O’Connor (Erie County)
EIP’s Alleged Injuries From Alleged Running Over of Foot Not Use and Operation of Auto
Note:  This is an arbitration that I represented the insurer in and note at the outset that the basis for denial was upon use and operation.  Also, considering the time of the year when the alleged incident occurred and the timing of the decision makes this story a great read.

On December 23, 2006, the eligible injured person, Mr. Kochan, (“EIP”) claimed that State Farm’s insured backed over his foot.  State Farm denied the claim for no-fault benefits on the basis that the EIP’s alleged injuries (right foot crush injury) did not arise out of the use and operation of a motor vehicle. 

Each side had a story and the following is a summary of each person’s version of the events.

The EIP’s version:  The EIP’s son, Justin, was hired by State Farm’s insured to install flooring in his home.  The installation was purported completed around Christmastime and State Farm’s insured had not paid for the services rendered.  Why?  Stay with me….  So, the EIP and his son jumped into a vehicle and drove to State Farm’s insured’s home to discuss the nonpayment for services rendered.  The EIP walked up to the State Farm insured vehicle parked in the driveway which contained the named insured and his spouse.  Huh?  Again, stay with me…. The insured rolled down his window and the EIP promptly stuck his head in it.  The EIP never raised his voice and was not upset at the time.  The insured advised that he had no time to speak with the EIP as he was going Christmas shopping.  The insured promptly told the EIP to get off of his property and put the vehicle in reverse.  The insured ran over the EIP’s right foot causing him to fall immediately to the ground with complaints of pain.  The police and ambulance arrived and the EIP received emergency medical treatment.  He contends that his right foot sustained a crush injury.

So, the other part of the story is that the EIP had pre-existing medical condition regarding his right foot.  In July 2006, he had the second digit of his foot amputated.  The EIP’s medical records indicate problems with swelling and pain in the foot and ankle prior to this incident.  This resulted in him being disabled from his job.  What was his job you ask? – A bill collector.

Of further note before moving on to the insured’s story is that the EIP’s son, Justin, never presented any testimony at the hearing.

The State Farm insured version:  The EIP’s son, Justin, was retained to install hardwood flooring in the insured’s home.  The insured was out of town on a business trip during the approximate two week installation period.  When the insured returned home he found that the installation of the flooring was extremely poor. 

On December 23, 2006 at around 4:00pm the insured and his wife attempted to go Christmas shopping.  The EIP and his son came up the driveway.  The EIP approached his vehicle and the insured rolled down his window.  The EIP appeared agitated and red faced demanding the see the floor.  The insured advised he was going Christmas shopping and wanted to discuss the floor after he had a chance to obtain a second opinion on the floor.  The EIP became very threatening and placed his hand on the door preventing the insured from being able to roll up the window in his car.  The insured also admitted that the EIP stuck his head in the window.  The insured asked the EIP to leave his property.  The EIP stepped back from the car.  The insured placed the car in reverse to leave at which time the EIP stepped toward the car.  The EIP then yelled “you ran over my foot” and “we’ll get money out of you one way or another.”  The EIP fell to the ground and Justin also started laughing and repeated that he would get his money one way or another.

The insured called 911 and believed that the EIP was scamming him.  He never felt his car run over the EIP’s foot and felt nothing different when backing up.

The insured’s daughter also testified at the arbitration and essentially stated that she witnessed the entire incident from an unobstructed view in the home.  She never saw the EIP’s foot run over.  She also testified that she heard the EIP and his son explain that they would get their money out of her father one way or another.

The State Police arrived at the scene and a trooper charged with investigating the incident filed a report that indicated the investigation revealed no evidence of any injury to the EIP.  Therefore, no MV104-A was required.

The assigned arbitrator, applying the Walton and Gholson rules, held that based upon the evidence submitted, the testimony presented, and the applicable case law the alleged injuries did not arise out of the use and operation of a motor vehicle.

Hopefully State Farm’s insured will have a better Christmas in 2009 than he did in 2006.

Litigation

12/9/09       A.B. Med. Services, PLLC a/a/o Frantz Beauliere v. Travelers Indem. Co.
Appellate Term, Second Department
Sole Disqualified Member Precluded From Maintaining Action – Not Here.
The question presented on appeal was whether an action can be maintained when the sole member of the professional service limited liability company has been legally disqualified from rendering professional services thereby dissolving the company seeking payment for no-fault benefits.   Upon review and interpretation of the Limited Liability Company Law it was determined that since the sole disqualified member was permitted to wind up the company’s affairs it would include prosecuting and/or defending actions on behalf of the company.  The fact that the company was dissolved did not preclude the suit.  Rather, the law provided that after dissolution the company’s affairs must be wound up.  During the winding up process the sole member was permitted to prosecute the action on the company’s behalf.

Office of General Counsel Opinion
11/30/09         OGC Op. No. 09-11-05 – Limitations on No-Fault Attorney Fees
If an arbitration or lawsuit contains multiple medical providers for a single eligible injured person each medical provider can seek an attorney fee with a minimum of $60 to a maximum of $850.00 based upon the aggregate sum of the bills for that medical provider.

However, if a single arbitration or lawsuit contains one medical provider by multiple eligible injured persons the medical provider is entitled to an attorney fee based upon the aggregate sum of the bills.  There is no fee per eligible injured person.

Here is the second part of our analysis on the proposed amendments to the No-Fault regulations pertaining to Arbitration and MVAIC.

ARBITRATION

Procedures for arbitration:

  • An applicant or assignee may initiate an arbitration by mailing, delivering or transmitting pursuant to 65-4.7 the NF-10 together with their documents supporting their position pursuant to 65-3.4(b)(3).
  • The method of transmitting the documents to AAA must also be used in transmitting the documents to the insurer simultaneously, unless the insurer agrees to accept documents via an alternate method.
  • The insurer’s documents will be deemed to be provided the date the documents are mailed, delivered or electronically transmitted.
  • The AR-1 must be completed in full.  An explanation must be provided for blank spaces, which are provided at the AAA’s website or by contacting the insurer.
  • The provision regarding condition precedent to demanding arbitration without a denial is deleted.
  • The provision requiring an additional $100 fee during conciliation of case that is resolved 20 days prior to filing for arbitration is deleted.
  • If there is a delay is sending the case for arbitrator assignment then the applicant or assignee must be notified.

 

SUBMISSION OF DOCUMENTS AFTER ARBITRATION IS INITIATED

  • AAA has seven calendar days after receipt to notify the insurer.
  • The insurer still has 30 calendar days to respond but the date the documents are provided is the date the documents are mailed, delivered or electronically delivered.  They must also be simultaneously transmitted to the applicant or assignee.
  • The applicant or assignee will have seven calendar days after receiving the insurer’s documents to advise if a reply is requested.  The applicant will then have 14 calendar days thereafter to provide the reply to both AAA and the insurer.
  • The provision regarding prior offers not being disclosed to the arbitrator is deleted.
  • 65-4.3 is deleted.

 

65-4.3 is now No-Fault Arbitration Procedure.

  • The arbitrator no longer has discretion to hear cases on the submissions when the amount is less than $2,000.00.
  • Rather, the arbitrator decides whether a formal hearing will be required if additional evidence and testimony is required.
  • A party will not be assessed an adjournment fee for the first adjournment if the request is received two calendar days prior to the scheduled hearing.  If the adjournment is not requested during that timeframe the $100 adjournment fee may be assessed but AAA will review and determine if the fee should be paid.
  • Representation at the arbitration can be by the insurer’s employee.  Likewise, it seems that an employee of the assignee may also appear but can only present evidence in lieu of and on behalf of the assignee.
  • The arbitrator has the ability to independently raise an issue or question at the arbitration as long as the parties have the ability to respond.
  • After an award is rendered a party can apply for a technical correction upon notice to the other party based upon a mathematical or clerical error.  Yet, this does not toll the timeframe to file for Master Arbitration.
  • The arbitrators now contract with AAA on a bi-annual basis.

 

65-4.4 – Limitation on Attorney’s Fees

  • If the claim is resolved prior to transmittal to the arbitrator then the attorney’s fee is 20% of the total amount of first and additional first party benefits sought with interest with a maximum fee of $2,500.
  • The entire minimum $60 and $80 fee provisions are deleted.
  • If a policy issue is in dispute the attorney’s fee is $100 per hour unless a policy issue is part of the claim for overdue benefits.
  • For all other disputes in arbitration or in a court proceedings the attorneys’ fee is 20% of the total of first and additional first party benefits plus interest for each applicant or assignee per arbitration or court proceeding subject to a $2,500 maximum fee.

 

65-4.8 – Master Arbitration review

  • In the event that party seeking Master Arbitration fails to provide the requisite fee or a copy of the award for review it will be provided with 10 days to correct the error.  The failure to do must result in a denial of review if not done within 40 calendar days of the mailing of the award.
  • The Master Arbitration must proceed if a party defaults by failing to appear or timely submit documentation.  The matter must be decided on the merits and not on the party’s default.  Further, the Master Arbitrator has the discretion to request the documents from the lower arbitration from AAA.
  • Attorney’s fees are a minimum of $125.  The maximum fee that can be received is $750.00.

 

MVAIC – 65-5

  • This section will apply to a qualified person for first party benefits to reimburse basic economic loss sustained arising out of the use and operation of an uninsured motor vehicle, motorcycle, and ATV in New York.
  • The standard definition of basic economic loss is adopted and a qualified person is anyone complying with the requirements of Insurance Law Article 52.
  • The usual exclusions seen in the mandatory PIP endorsement as also included here.
  • Notice must be provided to MVAIC within 180 days from the date of accident if an uninsured motorist.  If a hit and run accident then the timeframe is 90 days.  A hit and run accident must also be reported to the authorities within 24 hours of its occurrence unless a reasonable excuse is provided for noncompliance.  If the vehicle was insured at the time but the insurer disclaims coverage then a notice of intent to file a claim must be made within 180 days from receipt of the denial of coverage, however the accident must have been reported to the initial insurer within 30 days.
  • The 45/90 day rule also applies to claims made to MVAIC as well as the ability to conduct an IME or EUO.
  • All claims must be processed in accordance with Reg. 68 and the statute of limitations is three years from the date of accrual of a cause of action.

 PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper
[email protected]

Of Property
12/22/09         Frydman v Fidelity National Title Insurance Company
Appellate Division, First Department
Exclusion for Disputes Arising from Fence Placement Precludes Coverage
Plaintiff purchased a policy of title insurance that took effect on May 26, 1999.  Notably, the policy specifically excluded coverage for “rights of tenants or persons in possession.”  Further, the policy also excluded coverage for disputes arising from fences that “vary with property lines.”

In 2002, plaintiff’s neighbor commenced an action seeking to obtain title to certain land that appears to have been owned by plaintiff.  However, due to the placement of a fence, the land actually appeared to be located on the neighbor’s parcel.  As a result, plaintiff made a claim under his title insurance.

Where, as here, the dispute not only involved rights pursuant to adverse possession laws, but also involved the placement of a fence as well, the Trial Court concluded that coverage was precluded by operation of the above-referenced exclusions.  The First Department agreed by noting that the claim at issue clearly fell within the scope of the exclusions found within the policy.

12/22/09         Stilianudakis v Tower Insurance Company of New York
Appellate Division, Second Department
Failure to Establish Privity, as well as Incorrect Information, is Fatal to Plaintiff’s Claim Against Broker/Agent
Plaintiff commenced this action against, among others, his agent for alleged misrepresentations made by the agent in connection with the issuance of a fire policy.  In order to pursue a negligent misrepresentation claim against an agent, plaintiff must establish the existence of a privity-like relationship, and inaccuracy in statements made by the agent, along with plaintiff’s detrimental reliance upon the inaccurate statement of the agent.  Where, as here, plaintiff fails to allege the existence of a special relationship AND also fails to allege inaccurate statements of the agent, plaintiff’s claim failed to state a cause of action.  Accordingly, the Second Department dismissed the complaint insofar as it sought recovery for negligent misrepresentation against the agent.

Moreover, plaintiff’s claims of “negligent procurement of the policy” were also dismissed where it was established that plaintiff had the policy for more than two years prior to the loss, and as such is deemed to know, and have assented to, the terms of this policy.

12/15/09         Tyson v Tower Insurance Company of New York
Appellate Division, Second Department
Where Premises is Not Repaired, Plaintiff has the Burden of Establishing ACV
While under contract for sale, plaintiff’s house was badly damaged by a fire at the premises.  Fortunately, for plaintiff, the sale was completed anyway.  Thereafter, plaintiff requested coverage for the loss from Tower.  Due a dispute over the proceeds owed under the policy, plaintiff commenced the current action.

Pursuant to the terms of the policy issued by Tower, plaintiff was required to establish the Actual Cash Value of the loss where the property was not repaired.  Because plaintiff failed to establish the Actual Cash Value of the premises in her initial moving papers, the Second Department affirmed the Trial Court’s holding that plaintiff had failed to meet her evidentiary burden thereby precluding her request for summary judgment.

And Potpourri

12/17/09         Runner v New York Stock Exchange, Inc.
Court of Appeals
Force of Gravity which Pulls a Worker into Another Object Falls Within the Scope of Protection Afforded Under Labor Law § 240(1)
The facts of this case are relatively simple.  Plaintiff was working as part of a larger crew that was installing what appears to have been a large generator at the NYSE.  At some point, plaintiff’s crew was requested to move a large roll of wire, weighing approximately 800 lbs, down a set of four stairs.  To accomplish this task, plaintiff and/or plaintiff’s colleagues tied a rope to the roll of wire. 

They then wrapped the rope around a metal bar that they had placed across the door jam at the top of the four stairs.  After wrapping the rope around the metal bar several times, three workers (including plaintiff) held the end of the rope as counterweights to the roll of wire.

Unfortunately, the men were not able to stop the wire from rolling down the stairs.  In the process, plaintiff struck his hands on the metal bar and sustained injury as a result.  Understandably, plaintiff argued that the need to move the roll of wire down the stairs created an elevation differential, and as such triggered the protections under Labor Law § 240(1).  Defendants, on the other hand, argued that this was not within the scope of Labor Law § 240(1) because neither the plaintiff, nor the object that struck plaintiff, changed elevation levels.  In short, defendant contends that the force of gravity must be directly applied to the plaintiff, or the object striking plaintiff.

The Court of Appeals noted that the correct inquiry, in their estimation, was whether the harm sustained by plaintiff was a direct result of gravity on the object.  Because the force of gravity on the roll of wire caused plaintiff to strike his hand on the metal bar, the protections of the statute had been triggered.      

FIJAL’S FEDERAL FOCUS

Katherine A. Fijal
[email protected]
Once again there have been no new insurance related decisions from the Second Circuit.  We will continue to monitor and report as cases are published.  In the meantime I hope everyone has a peaceful and happy holiday season.

THE LIENINGTOWER OF PERLEY

Michael F. Perley
[email protected]

LIEN CUISINE

THERE IS MEDICARE (SET ASIDE) IN YOUR FUTURE

On January 1, 2010, defendants, insurance companies, and potentially attorneys are now required to consider and protect the interest of Medicare with respect to the payment of any liability claims.  This change in the landscape places the burden on the defense industry to protect the interest of Medicare even though the beneficiaries are the plaintiffs.  It is the classic example of the government looking for the “deep pocket” to take care of its problems.
Basically, at a point when there is settlement or other payment made to a plaintiff, it is necessary for the defendants collectively to satisfy two potential obligations.  The first, to reimburse Medicare for any conditional payments (essentially a lien) that Medicare has made to the plaintiff as a result of injuries sustained in the occurrence or event that is the subject of the lawsuit.  The second is to appropriately fund a Medicare Set Aside trust (MSA), the purpose of which is to protect the interest of Medicare from any future payments resulting from the plaintiff’s treatment for these same injuries after the date of payment.

The resolution of conditional payments is simpler than establishing a Medicare set aside, however, it is by no means simple.  The procedure by which the amount necessary to satisfy Medicare is calculated will complicate settlement since the Center for Medicare Services (CMS) will only provide such a statement after there has been a settlement.

Medicare set asides are somewhat more complex.  The first step in the analysis is to determine whether or not any amount of the settlement is reasonably calculated to compensate the plaintiff for any future medical treatment.  If such settlement contemplates future medical treatment after the plaintiff reaches the age of 65, even if the plaintiff is not likely to go on Social Security disability before then, it appears that the defendants are required to consider Medicare’s interest at that time.  This would require the funding of a Medicare set aside even for remote situations.

Other cases are more straight forward, namely if the plaintiff is already Medicare eligible or is anticipated to become Medicare eligible within 30 months of the date of payment.  In those instances, a Medicare set aside is required when any portion of the settlement is likely to compensate the plaintiff for future medical expenses.  It is important to note that settlements that are characterized as “pain and suffering only” do not exempt defendants from the responsibility for considering and protecting the interest of Medicare as part of a settlement.  The government is entitled to look behind the wording of the settlement and make an independent determination as to whether or not the settlement was to compensate the plaintiff for future medical expenses. 

These developments will make negotiating settlements and, even paying judgments, problematic whenever the interest of Medicare is under consideration.  In future columns, we will explore some of the practical approaches to identifying and protecting the interest of Medicare pursuant to the Medicare Secondary Payer Act requirements.

EARL’S PEARLS

Earl K. Cantwell
[email protected]
Seeing the Way Though Blind Mediation

One trend has been developing, particularly in complicated, multi-party cases, through the use of “blind negotiations” during mediations and ADR sessions.  This option has been utilized in complicated litigation involving several parties and players such as construction disputes, toxic tort litigation, work site accidents, and the like.  Such disputes often involve the various players such as owners, architects, engineers, contractors, subcontractors and suppliers making assertions against each other, all with their own attorneys and insurance carriers.  Within such an arena, the posturing and litigation among the defendants may become excessive, and the cross claims between the defendants may delay and frustrate overall evaluation and settlement of a claim.  One method to reduce this clutter and advance possible settlement is the use of “blind negotiations”. 

In blind negotiations, the mediator shields and limits information regarding the parties’ litigation positions and financial contributions, and keeps much of the information in confidence.  The mediator will seek or receive an opening “demand” from the claimant.  The mediator will then speak to all the defendants separately to convey that opening demand and obtain a contribution amount from each towards a joint offer of settlement.  The individual amounts are kept confidential and not disclosed to either the claimant or other defendants.  All that is conveyed to the claimant is gross amount of the combined settlement offer.  The mediator will then present the settlement offer to the claimant who may respond with a new or revised demand. 

During the process, the mediator returns to each defendant and discloses only the “gap” or difference between the total contribution of all defendants and the current demand from the claimant; the mediator does not disclose actual amount(s) offered by defendants, and may not even disclose to the defendants the total combined settlement offer.  The mediator seeks additional contribution from each defendant to bridge the gap between the demand and the combined settlement offer.  During the process, and if there is a settlement at the end of the process, the amount(s) offered or contributed by each defendant remains confidential and undisclosed.

Perhaps the main advantage to “blind negotiations” is that it may to remove or lessen posturing and argument among co-defendants.  Rather than comparing or attacking other defendants’ positions, each defendant focuses upon and assesses its own risk and extent of potential liability.  Another advantage is that, if a case does not settle, there are no working assumptions or going forward beliefs about percentages of fault based upon statements made during the negotiations.  This is because other than demands and combined settlement offers, nothing is disclosed to the parties other than “gaps” or differences in the overall amounts.  Another advantage of “blind negotiations” may be speed – the mediator does not get bogged down in hearing arguments and cross claims by the defendants against each other but is focused on claimant’s demand and coming up with a combined settlement offer that may settle the case.

Of course, the main disadvantage is the lack of information provided to individual defendants.  It is understood that in many cases attorneys, adjusters and claims supervisors usually want more information, not less, and we are all familiar with the scenario of pegging your own liability or settlement contribution based on what another party or carrier may or may not do.  Another disadvantage is that this method only works in cases with relatively large numbers of defendants – if there are not many defendants, parties are will be able to figure out relatively accurately what other parties are willing to contribute simply from the mediation dialogue and the amounts or gaps of any offers.

Another potential disadvantage is that such negotiations could actually proceed at a slower pace.  If defendants know that their contribution is confidential, they will not get pressure from other defendants to increase their financial contribution in terms of dollars or percentage.  This can result in slower progress and larger gaps in the demands and offers.  The process also does not completely eliminate “posturing” because if all defendants do not participate in the process or are not willing to revise or adjust their contributions, other defendants will resist doing the same and will continue to point fingers at other potentially culpable defendants.

However, the blind negotiation concept does provide an intriguing option for parties involved in complex, multi-party litigation.  The analysis and ultimate decisions by each party may be different, but they will be based on self-assessment rather than comparative assessment.  This is one technique which might guide the parties towards a reasonable settlement process in a complicated case.


ACROSS BORDERS

Please visit the Hot Cases Section of the Federation of Defense & Corporate Counsel website: www.thefederation.org

12/18/09         QBE Ins. Corp v. Brown & Mitchell, LLC
Fifth Circuit Court of Appeals
Excess CGL Policy’s Professional Services Exclusion Precludes Coverage for Wrongful Death suit.
 In a declaratory judgment action by an excess carrier, summary judgment affirmed for plaintiff. Although conduct complained of included non-technical activities, the complaint in underlying action explicitly attributed the accident to a breach of “professional responsibilities” as the “engineering firm” on the site. These acts were excluded from coverage.
Submitted by: Gray Culbreath, Collins & Lacy, P. C.

12/10/09         Westchester Surplus Lines Ins. Co. v. Maverick Tube
Fifth Circuit Court of Appeals
Defective Casing Production Constitutes an Occurrence
Maverick Tube appeals the declaratory judgment ruling that Westchester Surplus Lines Insurance Company had no duty to indemnify Maverick in an accident resulting from defective piping. The center of the case involves the application of Missouri state law in determining if an insurance "occurrence" and the duty to indemnify exists. The ruling of the district court granting summary judgment was reversed and the case remanded Maverick purchased a commercial general liability insurance policy and an umbrella insurance policy from Westchester. The CGL Policy provides indemnification for "property damage" resulting from an "occurrence." An "occurrence" is defined as an accident, including continuous or repeated exposure to substantially the same general harmful conditions. IMaverick sold a specific casing to Dominion Exploration and Production Company ( for use and operation in its gas wells. Dominion experienced catastrophic failure in four gas wells that were using the casing. Maverick settled with Dominion for $6,601,035.39. The settlement was several million less than the amount originally sought by Dominion because the breach of warranty limit for replacing the casing ($808,390) and loss of production revenues were both excluded from the settlement total. Westchester denied Maverick’s claim and filed a declaratory judgment action. In reversing the ruling, the 5th Circuit found that Maverick’s breach to Dominion was not simply non-performance, such as failure to deliver the casing; rather, it involved an unforeseen and unexpected event (the defective casing production which resulted in Dominion’s gas wells failure). Moreover, the Court noted that under the definition of the insurance policy, the event would qualify as property damage. Therefore, Dominion’s claim constitutes an occurrence.
Submitted by: Debra T. Herron (McNeer Highland McMunn and Varner, L.C.) 

 

REPORTED DECISIONS

Panasia Estates, Inc. v. Hudson Insurance Company


Peckar & Abramson, P.C., New York (Michael S. Zicherman
of counsel), for appellant-respondent.
White, Fleischner & Fino, LLP, New York (Janet P. Ford of
counsel), for respondents-appellants.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 6, 2009, which granted plaintiff's motion to amend the complaint to add a cause of action for breach of contract, unanimously reversed, on the law, with costs, and the motion denied.
Plaintiff is correct in arguing that the motion court erred by stating that consequential damages do not lie for breach of an insurance contract absent bad faith, since the determinative issue is whether such damages were "within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting" (Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d 187, 192 [2008] [internal quotation marks and citation omitted]; see Panasia Estates, Inc. v Hudson Ins. Co., 10 NY3d 200, 203 [2008]). However, the motion to amend the complaint should not have been granted since the breach of contract claim that plaintiff sought to add was duplicative of its existing claim for breach of the implied covenant of good faith (see Canstar v Jones Constr. Co., 212 AD2d 452, 453 [1995]). Furthermore, contrary to defendants' contention, plaintiff's claim for consequential damages in its cause of action for breach of the implied covenant of good faith was not insufficiently pled. The reference to such damages as "special" in Bi-Economy Mkt. (10 NY3d at 192) was not intended to establish a requirement of specificity in pleading.

Union Carbide Corporation v. Affiliated FM Insurance Company
Ford Marrin Esposito Witmeyer & Gleser, LLP, New York,
and Carroll, Burdick & McDonough LLP, San Francisco, CA
(G. David Goodwin of the Bar of the State of California,
admitted pro hac vice, of counsel), for Continental Casualty Company,
appellant.
Steptoe & Johnson, LLP, Washington, DC, (James E. Rocap,
III and Frank Winston, Jr., of the Bar of the District of
Columbia, admitted pro hac vice, of counsel), for American Home
Assurance Company, Lexington Insurance Company, American
Motorists Insurance Company, St. Paul Fire and Marine
Insurance Company and Argonaut Insurance Company, appellants.
Steven R. Gilford, Chicago, IL, of the Bar of the State of
Illinois, admitted pro hac vice, and Proskauer Rose LLP, New York,
for respondent.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered May 9, 2007, which denied defendants-appellants insurers' motions for partial summary judgment, granted plaintiff insured Union Carbide's motion for partial summary judgment, and adjudged that the aggregate limits of liability for the policies that defendants-appellants issued to Union Carbide apply on an annual basis, modified, on the law, to deny Union Carbide's motion, and otherwise affirmed, without costs. Order, same court and Justice, entered November 8, 2007, which granted Union Carbide's motion for partial summary judgment and adjudged that a two-month extension of a policy issued by defendant-appellant Continental Casualty Company to Union Carbide carried with it a full $5 million aggregate limit, unanimously reversed, on the law without costs, and the motion denied.
We agree with Judge Martin's analysis in Maryland Cas. Co. v W.R. Grace & Co. (1996 WL 169326, 1996 US Dist LEXIS 4500 [SDNY 1996]), as the relevant terms of the multi-year excess policies are indistinguishable from those in W.R. Grace. A declaration in each multi-year policy specifies a dollar amount as the "limit of liability" under the policy and states that the limit applies to each occurrence and "in the aggregate." The multi-year excess policies in W.R. Grace contained essentially the same language. Like the insured in W.R. Grace, Union Carbide seeks "to alter the plain terms of the contract by adding the word annual' where it simply does not otherwise exist" (id. WL at *5, LEXIS at *15; see also Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004] ["courts may not by construction add or excise terms"] [internal quotation marks omitted]). As the phrase "in the aggregate" is unambiguous (W.R. Grace, id.), it is of no moment that the excess policies do not contain language elaborating on the phrase that expressly negates in annualization (see Nissho Iwai Europe v Korea First Bank, 99 NY2d 115, 121-122 [2002] ["ambiguity does not arise from silence, but from what was written so blindly and imperfectly that its meaning is doubtful"] [internal quotation marks omitted]). Accordingly, we reject Union Carbide's argument that because the excess policies are silent as to whether the limit of liability is annualized, one must look to the underlying policy due to the "follow form" clause in the excess policies. Moreover, the subscription pages of the excess policies state "[t]his policy being for [the specified dollar amount], each of the signatories assumes for its Account their [sic] indicated quota share amount of the total [the specified dollar amount] limit of liability" (emphasis added). This language, to which there was no analogue in W.R. Grace, provides additional support for the conclusion that the limit of liability stated in each excess policy is not an annual amount.
Union Carbide's effort to distinguish W.R. Grace is unpersuasive. Here, each multi-year excess policy states that the insurance it affords follows form to an underlying policy (a policy with annual limits) "subject to the declarations set forth below" (one of which, as discussed above, sets forth the limit of liability). In W.R. Grace, each multi-year excess policy also stated that the insurance it afforded followed form to an underlying policy (at least one of which had annual limits), but the follow-form clause stated that the excess insurance followed form "except for limits" (W.R. Grace at WL *3, LEXIS *10). Contrary to Union Carbide's position, there is no substantive distinction between the "except for" and the "subject to" clauses. The most that can be said is that reading the excess policy to contain the same (i.e., annual) limits of liability as the underlying policy is expressly precluded by the former clause, but is only implicitly precluded by the latter clause. Both clauses, however, plainly state a rule of priority pursuant to which terms of the excess policy governing certain matters control over the terms of the underlying policy governing those matters. If the "subject to" clause does not perform the office of negating terms of the underlying policy that differ from those of the referenced declarations, it is not clear that the clause performs any function (see Suffolk County Water Auth. v Village of Greenport, 21 AD3d 947, 948 [2005] ["an interpretation which renders language in the contract superfluous is unsupportable"]; Helmsley-Spear, Inc. v New York Blood Center, 257 AD2d 64, 69 [1999] ["[c]ourts should construe a contract so as to give meaning to all of its language and avoid an interpretation that effectively renders meaningless a part of the contract"]).
The cases on which Union Carbide relies (Travelers Cas. & Sur. Co. v ACE Am. Reins. Co., 392 F Supp 2d 659 [SD NY 2005] affd 201 Fed Appx 40 [2d Cir 2006]; Commercial Union Ins. Co. v Swiss Reins. Am. Corp., 413 F3d 121 [1st Cir 2005]; American Employers' Ins. Co. v Swiss Reinsurance Corp, 413 F3d 129 [1st Cir 2005]) are distinguishable. In each of these reinsurance cases, the relevant language of the reinsurance certificates differs significantly from that of the excess policies; in the two First Circuit decisions, the court expressly relied in part on the follow-the-fortunes doctrine (Commercial Union, 413 F3d at 127-128; American Employers', 413 F3d at 137).
On the extension issue, the burden of proving coverage is on Union Carbide (Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208, 218 [2002]), and the policy is ambiguous as to whether it is entitled to $5 million in coverage from Continental for the extended, or "stub," two-month period in question (see Stonewall Ins. Co. v Asbestos Claims Mgt. Corp., 73 F3d 1178, 1216-1217 [2d Cir 1995], mod on other grounds 85 F3d 49 [2d Cir 1996]; United States Min. Prods. Co. v American Ins. Co., 348 NJ Super 526, 559, 792 A2d 500, 525 [App Div 2002]). Thus, given the ambiguity, Union Carbide failed to meet its burden of
demonstrating that it is entitled to the full annual limit for the two-month extension and partial summary judgment should not have been granted (see Uniroyal, Inc. v American Reins. Co., 2005 WL 4934215 [NJ Super, App Div 2005]).
All concur except Tom, J.P. who dissents in part in a memorandum as follows:

TOM, J.P. (dissenting in part)
Plaintiff obtained general liability and marine insurance from nonparties Employers Liability Assurance Corp. and Appalachian Insurance Co. These underlying policies each provide an "annual aggregate" limit of liability. Reinsurance (denominated "Excess Policies" by defendants) was provided by appellant insurers under a second tier of policies, each having a three-year duration. Each such excess policy, issued by a group of participating insurers, includes a "follow the form" clause, stating that it "shall follow all the terms, insuring agreements, definitions, conditions and exclusions" of the applicable underlying insurance policy.
Unlike the underlying policies, the excess policies do not expressly state that the aggregate liability of the participating insurers is annual, limiting liability to, for example, "$30,000,000 each occurrence and in the aggregate." The signature page recites, "This policy being for $30,000,000, each of the signatories assumes for its account their indicated quota share amount of the total $30,000,000 limit of liability."
It is the majority's position that despite the provision contained in each excess policy that it reflect the terms and definitions of the underlying policy providing for an annual limit of liability, the aggregate liability limitation of such excess policy is not annual, but extends over its three-year duration. While, standing alone, an aggregate limit of $30,000,000 contained in a three-year insurance policy might logically be construed as a limit to be applied over the life of the policy, the explicit expression of the parties' intent that the excess policy mirror the terms of the underlying insurance coverage dispels any doubt that the limitation on the coverage afforded is meant to be annualized. As stated in Commercial Union Ins. Co. v Swiss Reins. Am. Corp. (413 F3d 121, 128 [1st Cir 2005], quoting Aetna Cas. & Sur. Co. v Home Ins. Co., 882 F Supp 1328, 1337 [SD NY 1995]),
"'[w]here a following form clause is found in the reinsurance contract, concurrency between the policy of reinsurance and the reinsured policy is presumed, such that a policy of reinsurance will be construed as offering the same terms, conditions and scope of coverage as exist in the reinsured policy, i.e., in the absence of explicit language in the policy of reinsurance to the contrary.'"

The language on the signature page does not detract from this analysis, merely indicating each insurer's partial share of the total liability, without specifying whether such total is to be aggregated annually or over the duration of the policy.
The unreported case relied upon by the majority, Maryland Cas. Co. v W.R. Grace & Co. (1996 WL 169326, 1996 US Dist LEXIS 4500 [SD NY 1996]), is distinguishable in respect of the exception contained in the follow the form clause in the reinsurance policies, which reads: "'Except as otherwise provided herein the insurance afforded by this policy shall follow the terms, conditions and definitions as stated in the policies of underlying insurance, except for limits of liability, any renewal agreement and any obligation to investigate or defend'" (id. WL at *3, LEXIS at *9-10). The court noted that "while the policies 'follow form' to the underlying insurance in certain respects, this does not include limits of liability, which are set forth as $5 million for 'each occurrence' and $5 million 'aggregate'" (id.). In view of the explicit exception, it is hardly remarkable that the court applied the aggregate limit over the multi-year duration of the excess policies rather than applying an annual limit, as provided in the underlying insurance.
The facts of the matter at bar are consonant with those of Travelers Cas. & Sur. Co. v. ACE Am. Reins. Co. (392 F Supp 2d 659 [SD NY 2005], affd 201 Fed Appx 40 [2d Cir 2006]), in which the court noted that the inclusion of a follow the form clause in a three-year reinsurance certificate creates a presumption of concurrency with the terms of the underlying policy that can only be overcome "through the placement of explicit liability limitations in the certificate itself" (id. at 665). Thus, the court annualized the aggregate limit of liability, holding that because, as here, "the certificates do not clearly or explicitly limit the coverage terms of the underlying policy, the presumption of concurrency between the excess policy and the Three-Year Certificates is not overridden" (id.).
Plaintiff has submitted an expert's affidavit stating that it is industry custom that liability be aggregated annually, and that "unless a multi-year policy clearly states otherwise, its aggregate limits are understood to apply on an annual basis." However, because the parties' intent to harmonize the terms of the excess policies with those of the underlying policies is apparent and unequivocal, it is unnecessary to consider extrinsic evidence (see R/S Assoc. v New York Job Dev. Auth., 98 NY2d 29, 33 [2002]; W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 163 [1990]). Even if an ambiguity could be said to be presented and the proffered affidavit is deemed to be conclusory, "the ambiguity must be resolved against the insurer which drafted the contract" (State of New York v Home Indem. Co., 66 NY2d 669, 671 [1985]).
Accordingly, the order should be affirmed to the extent it granted plaintiff's motion for partial summary judgment.
Sone v. Qamar


James M. Sheridan, Jr., Garden City, for appellant.
Cullen and Dykman LLP, Brooklyn (Ian T. Williamson of
counsel), for respondent.
Order, Supreme Court, New York County (Paul Wooten, J.), entered November 28, 2008, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant satisfied her initial burden of demonstrating, prima facie, that plaintiff did not sustain a serious injury as defined by Insurance Law 5102(d). Defendant submitted the affirmed report of a neurologist who found no neurological deficits and noted only a 20 degree limitation on flexion in plaintiff's lumbosacral spine.
Plaintiff failed to meet her consequent burden to provide evidence which raised a triable issue of fact concerning whether she sustained such a serious injury, instead relying on the finding of defendant's doctor. However, the limitation noted by defendant's doctor is not significant within the meaning of Insurance Law 5102(d) (see Style v Joseph, 32 AD3d 212, 214 [2006]). Moreover, defendant's doctor opined that it was not causally related to the accident and plaintiff provided nothing which raised a triable issue of fact concerning this element of proof. Accordingly, the court properly granted summary judgment.
In the Matter of State Farm Mutual Automobile v. Gray


Rubin & Licatesi, P.C., Garden City, N.Y. (Jason S. Firestein of
counsel), for appellant.
Richard T. Lau, Jericho, N.Y. (Joseph P. Gallo of counsel), for
respondent.

DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured/underinsured motorist benefits, Angelina Gray appeals from an order of the Supreme Court, Nassau County (Iannacci, J.), entered November 21, 2008, which granted the petition and permanently stayed the arbitration.
ORDERED that the order is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.
On March 9, 2005, the appellant was operating a motor vehicle (hereinafter the subject vehicle) insured by the petitioner when the subject vehicle was involved in an accident in Hempstead. According to the police accident report, the subject vehicle was registered in North Carolina to the appellant. The motor vehicle with which the subject vehicle collided (hereinafter the tortfeasor's vehicle) was registered in New York.
The petitioner issued a policy of automobile insurance in North Carolina (hereinafter the subject policy) to nonparty Wallace C. Gray, the appellant's husband (hereinafter the named insured), covering the subject vehicle. The declarations page of the subject policy (hereinafter the declarations) which covered the time period within which the accident occurred indicated that the limits of liability for bodily injury were $100,000 per person/$300,000 per occurrence. The declarations also indicated that the subject policy contained uninsured motorist coverage "U."
The appellant, with the petitioner's consent, settled a claim against the tortfeasor for the sum of $25,000, the bodily injury limits of the tortfeasor's policy of insurance issued by AIG National Insurance Co. Subsequently, the petitioner advised the appellant that since the subject policy contained only uninsured but not underinsured motorist coverage, it was closing its file because there was no further claim to adjust. Thereafter, the appellant made a demand to arbitrate her claim for uninsured/underinsured motorist benefits under the subject policy. The petitioner commenced this proceeding to permanently stay the arbitration. The Supreme Court granted the petition and permanently stayed the arbitration. We reverse.
Contrary to the petitioner's contention, the tortfeasor's vehicle was uninsured within the meaning of the subject policy. The uninsured motorist provision therein defines an uninsured motor vehicle as one, inter alia, to which a "policy applies at the time of the accident; provided its limit for liability is less than the minimum limit specified by the financial responsibility law of North Carolina" [emphasis added]. The subject uninsured motorist provision and, in particular, the definition of an uninsured motor vehicle thereunder, essentially mirrors the language in North Carolina General Statutes § 20-279.21(b)(3), the uninsured motorist provision of the North Carolina Motor Vehicle Safety and Financial Responsibility Act (hereinafter the Act). The Act defines an "uninsured motor vehicle" as one "to which there is no bodily injury liability insurance and property damage liability insurance in at least the amounts specified in subsection (c) of [N.C.]G.S. 20-279.5." North Carolina General Statutes § 20-279.5 contains the "amounts specified" to which the policy limits of the tortfeasor's vehicle must be compared in order to determine whether that vehicle is uninsured.
Notably, North Carolina General Statutes § 20-279.5 governs the circumstances under which a driver who is involved in an accident in North Carolina must post security. Pursuant thereto, one of the conditions under which an operator of an out-of-state motor vehicle involved in an accident in North Carolina would not be required to post security is if that motor vehicle is covered by a policy of insurance that contains policy limits for bodily injury of not less than $30,000 per person/$60,000 per accident. That amount also mirrors the minimum bodily injury limits required for all vehicles registered in North Carolina (see NCGS § 20-279.21[b][2]). Thus, the limits referred to in section 20-279.21 of the Act, to which the policy limits of the tortfeasor's vehicle must be compared in order to determine whether that vehicle is uninsured, are $30,000 per person/$60,000 per accident.
As the petitioner correctly argues, a vehicle such as the tortfeasor's that is registered in New York is not subject to the financial responsibility laws of North Carolina, and the owner of such a vehicle is not required to purchase minimum bodily injury limits of $30,000/$60,000 coverage in accordance therewith (see NCGS § 20-279.21[b][2]). These conclusions, however, do not preclude a determination that such a vehicle is uninsured for purposes of both the Act and the uninsured motorist provision of the subject policy. As applied to vehicles registered outside of North Carolina, the uninsured motorist requirements of the Act were adopted to protect North Carolina drivers involved in accidents with out-of-state vehicles which may not carry insurance coverage commensurate with the insurance coverage required of drivers in North Carolina (see generally Proctor v N.C. Farm Bureau Mutual Ins. Co., 324 NC 221, 225). The Act is remedial in nature and must be liberally construed, in order to protect "innocent victims who may be injured by financially irresponsible motorists" (Proctor v N.C. Farm Bureau Mutual Ins. Co., 324 NC at 224; see Liberty Mut. Ins. Co. v Pennington, 356 NC 571, 573).
Morever, the unambiguous terms of the subject uninsured motorist provision must be construed as written (see generally Allstate Ins. Co. v Stolarz, 81 NY2d 219, 225). Here, since the tortfeasor's policy limit of $25,000 per person/$50,000 per accident "is less than the minimum limit specified by the financial responsibility law of North Carolina [emphasis added]," the tortfeasor's vehicle is deemed to be uninsured under the clear language of the uninsured motorist provision of the subject policy.
Further, contrary to the petitioner's contention that the subject policy does not contain an endorsement for underinsured motorist coverage, the documents submitted in support of the petition failed to demonstrate that the named insured rejected such coverage in accordance with the Act. The governing provision of the Act in effect at the time of the subject accident outlined specific procedures under which underinsured motorist coverage may be rejected by a named insured (see NCGS § 20-279.21[b][4] [2003 N.C. Ch. 311]). Under that provision, rejection of such coverage was required to be made in writing by the named insured on a form promulgated by the North Carolina Rate Bureau and approved by the North Carolina Commissioner of Insurance (see NCGS § 20-279.21[b][4] [2003 N.C. Ch. 311]).
Here, the petitioner submitted the original policy application from 1995 (containing no form for the acceptance or rejection of uninsured/underinsured motorist coverage), coupled with the declarations applicable to the policy in effect at the time of the accident, to demonstrate that the named insured, in effect, rejected the underinsured motorist endorsement because it had accepted a policy, upon each renewal, without it. The appellant's acceptance, upon each renewal, of the subject policy containing an uninsured motorist endorsement without the combined underinsured motorist endorsement does not, alone, operate as a rejection of the latter coverage, which is written into it by statute (see Hoffman v Great Am. Alliance Ins., 166 NC App 422, 427; Sanders v American Spirit Ins. Co., 135 NC App 178, 183; Lichtenberger v American Motorist Ins. Co., 7 NC App 269, 273-275). Thus, the petitioner's submissions failed to demonstrate that the named insured rejected underinsured motorist coverage on a form that strictly complied with the statute.
Accordingly, the subject policy is deemed to include underinsured motorist coverage in the absence of evidence that such coverage was offered and rejected in accordance with the version of the statute applicable at the time of the accident (see Sanders v American Spirit Ins. Co., 135 NC App at 181).
In light of the foregoing, we need not reach the parties' remaining contentions.
In the Matter of State Farm Mutual Automobile v. Waite


Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and
Gilbert J. Hardy of counsel), for appellant.
Allen L. Rothenberg (Scott J. Rothenberg and Louis A. Badolato,
Roslyn Harbor, N.Y., of counsel), for
respondent.

DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to permanently stay the arbitration of a claim for supplementary underinsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Nassau County (Mahon, J.), entered April 17, 2008, which denied its petition and, in effect, dismissed the proceeding as untimely.
ORDERED that the order is affirmed, with costs.
Contrary to the petitioner's contentions, the Supreme Court properly denied its petition to permanently stay arbitration of the respondent's underinsured motorist claim as time-barred by the 20-day statutory period set forth in CPLR 7503(c) (see Matter of Fiveco, Inc. v Haber, 11 NY3d 140, 145; Matter of Liberty Mut. Ins. Co. v Argueta, 59 AD3d 446, 447). The respondent came within the definition of an "insured" in the supplementary uninsured/underinsured motorists endorsement at issue, and the petition to stay arbitration was based upon an exclusion in that endorsement rather than a lack of coverage (see Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 189; Matter of Allstate Ins. Co. v Doyle, 64 AD3d 775, 776; Matter of Nova Cas. Co. v Martin, 57 AD3d 548; Matter of Allstate Ins. Co. v Arpaia, 276 AD2d 628).
William Floyd School District v. Maxner


Newman Myers Kreines Gross Harris, P.C., New York, N.Y.
(Olivia M. Gross and Howard B. Altman of counsel), for
defendant third-party plaintiff-appellant.
Tromello, McDonnell & Kehoe, Melville, N.Y. (Kevin P.
Slattery of counsel), for plaintiffs-
respondents.
Law Offices of Curtis Vasile, P.C., Merrick, N.Y. (Michael J.
Dorry of counsel), for defendant-
respondent Premium Supply
Company and third-party defendant-
respondent (one brief filed).

DECISION & ORDER
In an action for a judgment declaring the priority of insurance coverage obligations, QBE Insurance Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Jones, J.), dated October 6, 2008, as granted that branch of the plaintiffs' motion which was for summary judgment declaring that it is obligated to defend William Floyd School District and William Floyd Middle School in an underlying personal injury action entitled Maxner v William Floyd School District, pending in the Supreme Court, Suffolk County, under Index No. 02426/04, and denied those branches of its cross motion, made jointly with Aurora Contractors, Inc., which were for summary judgment on the third-party complaint declaring that Royal and Sunalliance Insurance Company is obligated to defend and indemnify William Floyd School District, William Floyd Middle School, and Aurora Contractors, Inc., in the underlying action on a primary, noncontributory basis, and that the coverage it provided is excess to that provided by Royal and Sunalliance Insurance Company.
ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, that branch of the plaintiffs' motion which was for summary judgment declaring that QBE Insurance Corp. is obligated to defend William Floyd School District and William Floyd Middle School in the underlying action is denied, upon searching the record, summary judgment is awarded to QBE Insurance Corp. declaring that it is not obligated to defend William Floyd School District, William Floyd Middle School, and Aurora Contractors, Inc., in the underlying action unless no other insurer is obligated to defend those parties in the underlying action, those branches of the cross motion of QBE Insurance Corp. and Aurora Contractors, Inc., which were for summary judgment on the third-party complaint declaring that Royal and Sunalliance Insurance Company is obligated to defend and indemnify William Floyd School District, William Floyd Middle School, and Aurora Contractors, Inc., in the underlying action on a primary, noncontributory basis, and that the coverage provided by QBE Insurance Corp. is excess to that provided by Royal and Sunalliance Insurance Company are granted, and the matter is remitted to the Supreme Court, Suffolk County, for entry of an appropriate declaratory judgment.
William Floyd Union Free School District (hereinafter the school district) contracted with Aurora Contractors, Inc. (hereinafter Aurora), to be the general contractor of a construction project to build a new middle school. The contract required Aurora to provide the school district with primary insurance coverage. Aurora had a policy (hereinafter the QBE policy) with QBE Insurance Corp. (hereinafter QBE), and provided the school district with a certificate of liability insurance listing it as an additional insured on that policy. Aurora subcontracted the obligation to supply kitchen equipment to Premium Supply Company (hereinafter Premium). The subcontract required Premium to provide Aurora with insurance. Premium was insured by Royal Insurance Company of America, a division of Royal & SunAlliance, sued herein as Royal and Sunalliance Insurance Company (hereinafter Royal), and provided Aurora with a certificate of liability insurance listing Aurora and the school district as additional insureds on that policy (hereinafter the Royal policy). Premium subcontracted some of the contracting work to Dee's Associated. Frank Maxner, an employee of Dee's Associated, allegedly was injured while performing this work.
Maxner and his wife, suing derivatively, commenced a personal injury action against the school district and William Floyd Middle School (hereinafter together the school district plaintiffs) and Aurora entitled Maxner v William Floyd School District, in the Supreme Court, Suffolk County, under Index No. 02426/04 (hereinafter the underlying action). The school district plaintiffs and their insurer, Transportation Insurance Company (hereinafter TIC), then commenced this action, seeking a judgment declaring that the school district plaintiffs are additional named insureds under Aurora's policy with QBE, QBE is obligated to defend and indemnify them in the underlying action, and TIC is entitled to recoup defense costs it actually paid. Aurora and QBE commenced a third-party action against Royal, seeking a judgment declaring that the school district plaintiffs and Aurora are additional named insureds under the Premium policy with Royal, Royal is obligated to defend and indemnify the school district plaintiffs and Aurora in the underlying action on a primary, noncontributory basis, and QBE is entitled to recoup defense costs it actually paid. In an order dated October 6, 2008, the Supreme Court granted that branch of the plaintiffs' motion which was for summary judgment declaring that QBE and Royal are obligated, as co-insurers, to defend the school district plaintiffs in the underlying action, denied those branches of QBE's cross motion, made jointly with Aurora, which were for summary judgment declaring that Royal is obligated to defend and indemnify the school district plaintiffs and Aurora in the underlying action on a primary, noncontributory basis, and that the coverage provided by QBE is excess to that provided by Royal, and granted that branch of QBE's cross motion, made jointly with Aurora, which was for summary judgment declaring that, to the extent that QBE is obligated to defend the school district plaintiffs and Aurora in the underlying action, TIC and QBE are entitled to reimbursement for certain defense costs actually incurred. QBE appeals from so much of the order as was adverse to it. We reverse the order insofar as appealed from.
As Royal correctly concedes in its brief, the Supreme Court erred in holding that the indemnification issues could not be determined absent a showing of negligence (see Kinney v Lisk Co., 76 NY2d 215; Cavanaugh v 4518 Assoc., 9 AD3d 14; Tishman Constr. Corp. of N.Y. v CNA Ins. Co., 236 AD2d 211). Contrary to Royal's contention, QBE and Aurora established that the school district plaintiffs and Aurora are additional insureds under the Royal policy, are insured under that policy for liability arising out of the underlying accident, and are entitled to a defense and indemnification from Royal in the underlying action.
The subcontract between Aurora and Premium required Premium to name the school district plaintiffs and Aurora as additional insureds under the Royal policy. The Royal policy provides that additional insureds are covered "with respect to liability arising out of [Premium's] ongoing operations performed for that additional insured by the named insured at the location designated in the written contract." The focus of such a clause is "not . . . the precise cause of the accident . . . but . . . the general nature of the operation in the course of which the injury was sustained" (Consolidated Edison Co. of N.Y. v Hartford Ins. Co., 203 AD2d 83, 83). To determine whether the school district plaintiffs and Aurora are additional insureds for claims arising out of the underlying accident, the court must look to Premium's subcontract with Aurora (see Greater N.Y. Mutual Ins. Co. v Mutual Mar. Off., 3 AD3d 44, 47). Maxner allegedly was injured while performing work encompassed within Premium's subcontract with Aurora. "[A]t the time that [they] entered into their contract, the parties agreed that [Premium's] operations' would include [that work]" (Travelers Indem. Co. v Commerce & Indus. Ins. Co. of Canada, 28 AD3d 914, 916). Accordingly, Royal is obligated to defend and indemnify the school district plaintiffs and Aurora in the underlying action (see Travelers Indem. Co. v Commerce & Indus. Ins. Co. of Canada, 28 AD3d 914; Structure Tone v Component Assembly Sys., 275 AD2d 603; Tishman Constr. Corp. of N.Y. v CNA Ins. Co., 236 AD2d 211).
As to priority of coverage, the Royal policy issued to Premium provides:
"When an additional insured is added under this provision, and the written contract, written agreement or written permit requires the insurance to be primary and noncontributory, then this insurance is primary except when the Excess Provision under condition 4. Other Insurance in Section IV Commercial Liability Conditions applies. If this insurance is primary our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the Method of Sharing provision under condition 4."
The subcontract between Premium and Aurora required Premium to provide Aurora with insurance in accordance with a sample certificate of insurance, which listed Aurora and the school district plaintiffs as additional insureds. This agreement to name them as additional insureds was an agreement to provide them with primary coverage, triggering the above provision (see Pecker Iron Works of N.Y. v Traveler's Ins. Co., 99 NY2d 391).
The QBE policy issued to Aurora provides:
"4. Other insurance
If other valid and collectible insurance is available to the insured for a loss we cover . . . our obligations are limited as follows: . . .
"b. Excess Insurance
This insurance is excess over: . . .
"(2) Any other insurance, whether primary, excess, contingent or any other basis that is valid and collectible insurance available to you as an additional insured under a policy issued to:
(a) A contractor performing work for you."
Contrary to the plaintiffs' contention, this provision applies to the school district plaintiffs, as well as to Aurora. In the absence of unambiguous contractual language to the contrary, an additional insured "enjoy[s] the same protection as the named insured" (Pecker Iron Works of N.Y. v Traveler's Ins. Co., 99 NY2d at 393). The additional insured endorsement which provides for primary coverage for additional insureds does not vitiate this provision. The endorsement and the policy must be read together "and the words of the policy remain in full force and effect except as altered by the words of the endorsement" (Penna v Federal Ins. Co., 28 AD3d 731, 732, quoting County of Columbia v Continental Ins. Co., 83 NY2d 618, 628). Since the school district plaintiffs and Aurora are additional insureds under the Royal policy issued to a subcontractor, the QBE policy provides them with coverage excess to that provided to them under the Royal policy.
Further, the QBE policy provides that when its insurance is excess, QBE will have no duty to defend the insured if another insurer has such duty. Accordingly, the Supreme Court should have granted those branches of QBE's cross motion, made jointly with Aurora, which were for summary judgment on the third-party complaint declaring that Royal is obligated to defend and indemnify the school district plaintiffs and Aurora in the underlying action on a primary, noncontributory basis, and that the coverage provided by QBE is excess to that provided by Royal. Upon searching the record, we award summary judgment to QBE declaring that it is not obligated to defend the school district plaintiffs and Aurora in the underlying action unless no other insurer is obligated to defend those parties in the underlying action.
Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Suffolk County, for the entry of a judgment declaring that QBE is not obligated to defend the school district plaintiffs and Aurora in the underlying action unless no other insurer is obligated to defend those parties in that action, that Royal is obligated to defend and indemnify those parties in that action on a primary, noncontributory basis, and that the coverage provided by QBE is excess to that provided by Royal (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901). 
Collado v. Abouzeid


Richard T. Lau, Jericho, N.Y. (Keith E. Ford of counsel), for
appellants.
Bracken & Margolin, LLP, Islandia, N.Y. (Patricia M.
Meisenheimer of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from so much of an order of the Supreme Court, Suffolk County (Jones, Jr. J.), dated March 27, 2009, as denied their cross motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendants' cross motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is granted.
The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact.
In opposing the defendants' cross motion, the plaintiff principally relied upon the affidavit of Dr. Jeffrey Block, her treating chiropractor. Neither Dr. Block nor the plaintiff adequately explained the cessation of her treatment after May 2006 (see Pommells v Perez, 4 NY3d 566, 574; see also Shaji v City of New Rochelle, 66 AD3d 760; Ciancio v Nolan, 65 AD3d 1273). The plaintiff also failed to submit competent medical evidence that the injuries she allegedly sustained as a result of the subject accident rendered her unable to perform substantially all of her daily activities for not less than 90 days of the first 180 days thereafter (see Ponciano v Schaefer, 59 AD3d 605; Sainte-Aime v Ho, 274 AD2d 569). Therefore, the defendants' cross motion for summary judgment dismissing the complaint should have been granted.
Eusebio v. Yannetti


Cannon & Acosta, LLP, Huntington Station, N.Y. (June Redeker
of counsel), for appellant.
Kaplan & McCarthy, East Elmhurst, N.Y. (Justin M. Delaire
of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Kerins, J.), dated September 29, 2008, which granted the defendant's 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 denied.
The defendant met her prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition to the defendant's motion, the plaintiff principally relied on the affidavit of her treating chiropractor, Dr. Nicholas Martin. In that affidavit, Dr. Martin opined, based upon his contemporaneous and most recent examinations of the plaintiff and his review of the plaintiff's affirmed magnetic resonance imaging reports of her cervical and lumbar regions, which revealed, inter alia, a herniated disc at C4-5 and a disc bulge at C5-6, that the plaintiff's cervical and lumbar injuries and observed range-of-motion limitations were significant and permanent, and causally related to the subject accident. Thus, the plaintiff raised a triable issue of fact as to whether she sustained serious injury to her cervical and/or lumbar spine under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident (see Sanevich v Lyubomir, 66 AD3d 665; Azor v Torado, 59 AD3d 367, 368; Williams v Clark, 54 AD3d 942, 943; Casey v Mas Transp., Inc., 48 AD3d 610, 611; Green v Nara Car & Limo, Inc., 42 AD3d 430, 431; Francovig v Senekis Cab Corp., 41 AD3d 643, 644-645).
Contrary to the defendant's contention, the plaintiff's cessation of treatment for her injuries was adequately explained in Dr. Martin's affidavit. Dr. Martin explained that the plaintiff stopped treatment in November 2006 because she had reached her maximum medical improvement and any further treatment would have merely been palliative in nature (see Pommells v Perez, 4 NY3d 566, 577).
McMullin v. Walker


Richard T. Lau, Jericho, N.Y. (Gene W. Wiggins of counsel), for
appellants.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schneier, J.), dated April 17, 2009, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Beverly McMullin on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Beverly McMullin is granted.
In support of that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Beverly McMullin (hereinafter McMullin), the defendants met their prima facie burden of showing that McMullin 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, McMullin failed to raise a triable issue of fact.
The magnetic resonance imaging (hereinafter the MRI) report of Dr. Steven Brownstein concerning McMullin's lumbar spine, the MRI report of Dr. Dennis Rossi concerning McMullin's cervical spine, the EMG report of Dr. Miguel Vargas, and the medical reports of Dr. Anthony Penepent were all insufficient to raise a triable issue of fact since they were unaffirmed (see Grasso v Angerami, 79 NY2d 813; Maffei v Santiago, 63 AD3d 1011; Niles v Lam Pakie Ho, 61 AD3d 657; Uribe-Zapata v Capallan, 54 AD3d 936; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; Pagano v Kingsbury, 182 AD2d 268).
The "Final Narrative" medical report of Dr. Jerome L. Greenberg, McMullin's chiropractor, was not in affidavit form and therefore was insufficient to raise a triable issue of fact (see Kunz v Gleeson, 9 AD3d 480; Doumanis v Conzo, 265 AD2d 296). In an attempt to cure that defect, McMullin submitted Dr. Greenberg's affidavit, along with the "Final Narrative" report, in a surreply entitled, "Supplemental Affirmation in Opposition." This was improper, and the Supreme Court should not have considered this submission (see Flores v Stankiewicz, 35 AD3d 804).
The affirmed medical report of Dr. Craig Antell, McMullin's examining orthopedist, also failed to raise a triable issue of fact. While Dr. Antell noted significant limitations in McMullin's cervical spine range of motion based on his recent examination of her on November 5, 2008, neither he nor McMullin proffered competent medical evidence showing the existence of significant limitations in her spine that were contemporaneous with the subject accident (see Sutton v Yener, 65 AD3d 625; Jules v Calderon, 62 AD3d 958; Garcia v Lopez, 59 AD3d 593; Leeber v Ward, 55 AD3d 563; Ferraro v Ridge Car Serv., 49 AD3d 498; D'Onofrio v Floton, Inc., 45 AD3d 525). The single limitation noted by Dr. Antell concerning McMullin's thoracolumbar spine range of motion on November 5, 2008, was insignificant under the no-fault statute (see Trotter v Hart, 285 AD2d 772; Waldman v Dong Kook Chang, 175 AD2d 204).
McMullin also failed to submit competent medical evidence that the injuries she allegedly sustained as a result of the subject accident rendered her unable to perform substantially all of her daily activities for not less than 90 days of the first 180 days thereafter (see Ponciano v Schaefer, 59 AD3d 605; Sainte-Aime v Ho, 274 AD2d 569). Indeed, she testified at her deposition that she missed, at most, a week of work as a result of the subject accident. Therefore, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted by McMullin.
Mensah v. Badu


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Robert D. Grace of counsel), for appellants.
Bongiorno Law Firm, PLLC, Mineola, N.Y. (Aaron C. Gross of
counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Martin, J.), dated April 15, 2009, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.
The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., Inc., 98 NY2d 345, 350-351; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact.
The plaintiff's hospital records were not in proper form because they were uncertified (see Mejia v DeRose, 35 AD3d 407). Consequently, they were insufficient to raise a triable issue of fact.
The affidavits of Dr. Jason S. Brattner and Dr. Dominic Rubino, as well as the affirmed medical report of Dr. Irving Friedman, reveal contemporaneous and recent testing results that showed significant range of motion limitations in the plaintiff's cervical spine. However, none of those experts addressed the findings of the defendants' radiologist, who concluded that the bulging and herniated discs observed in the plaintiff's cervical spine magnetic resonance imaging films were degenerative in nature and unrelated to the subject accident. Thus, the conclusions of the plaintiff's experts that the injuries and limitations noted during their respective examinations were the result of the subject accident were speculative (see Ferebee v Sheika, 58 AD3d 675, 676; Cornelius v Cintas Corp., 50 AD3d 1085, 1086-1087; Marrache v Akron Taxi Corp., 50 AD3d 973, 974; Giraldo v Mandanici, 24 AD3d 419, 420).
Only Dr. Friedman examined the plaintiff's lumbar spine, and that examination took place some two years after the accident. Since Dr. Friedman did not make any contemporaneous range of motion findings that revealed the existence of significant limitations in the plaintiff's lumbar spine, his examination did not raise a triable issue of fact as to whether the plaintiff sustained a serious injury to his lumbar spine under the permanent consequential limitation or the significant limitation of use category of Insurance Law § 5102(d) (see Taylor v Flaherty, 65 AD3d 1328, 1328-1329; Fung v Uddin, 60 AD3d 992, 993; Gould v Ombrellino, 57 AD3d 608, 609; Kuchero v Tabachnikov, 54 AD3d 729, 730; Ferraro v Ridge Car Serv., 49 AD3d 498).
Furthermore, neither the plaintiff nor Dr. Friedman adequately explained his cessation of treatment after February 23, 2007. That was the last time that the plaintiff sought treatment (see Shaji v City of New Rochelle, 66 AD3d 760; Ciancio v Nolan, 65 AD3d 1273, 1274; see also Pommells v Perez, 4 NY3d 566, 574; Bycinthe v Kombos, 29 AD3d 845, 846).
Finally, the plaintiff failed to submit competent medical evidence that the injuries he allegedly sustained as a result of the subject accident rendered him unable to perform substantially all of his daily activities for not less than 90 days of the first 180 days thereafter (see Ponciano v Schaefer, 59 AD3d 605, 607; Sainte-Aime v Ho, 274 AD2d 569, 570). The plaintiff admitted that he lost merely one month of work as a result of the subject accident.
Metropolitan Transportation Authority v. Zurich American Ins. Co.


Mendes & Mount, LLP, New York (Robert J. Brown of
counsel), for appellants.
Melito & Adolfsen P.C., New York (S. Dwight Stephens of
counsel), for respondent.
Judgment, Supreme Court, New York County (Richard F. Braun, J.), entered July 16, 2009, declaring that the coverage afforded plaintiffs under a $10 million umbrella policy issued by defendant regarding an underlying personal injury action was limited to $1 million in excess insurance, and that defendant was entitled to $500,000 on its counterclaim for the amount it paid to settle the underlying action, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered May 29, 2009, to the extent it granted defendant's motion for summary judgment on its counterclaim, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Defendant excess insurer issued a follow-form policy, which incorporated the terms and conditions of an underlying $1 million general liability insurance policy to the extent not contradicted by the excess policy's express terms (see Vigilant Ins. Co. v Bear Stearns Cos., Inc., 10 NY3d 170, 177 [2008]). Here, the underlying policy provided that additional insureds, such as plaintiffs, would be covered up to the lesser of the policy limits or the amount required by their trade contracts with the insured. There is no doubt that plaintiffs were additional insureds (Bovis Lend Lease LMB, Inc. v Great Am. Ins. Co., 53 AD3d 140, 146-147 [2008]). Nor was there any conflict between the excess policy terms and the blanket additional insured rider in the underlying policy. As such, the trade contract limitation was incorporated into the excess policy (see id.).
American Transit Insurance Company, v. Hashim


Marjorie E. Bornes, New York, for appellant.
Kagan & Gertel, Brooklyn (Irving Gertel of counsel), for
respondent.
Order, Supreme Court, New York County (Richard F. Braun, J.), entered February 27, 2009, which granted defendant Hashim's motion for summary judgment seeking a declaration that plaintiff had a duty to defend Cuzco, its insured, and indemnify Hashim in an underlying action, modified, on the law, to additionally declare that indemnification recovery is subject to the monetary limits of the policy, and otherwise affirmed, without costs.
Hashim claims to have sustained severe and crippling permanent injuries in a collision in October 2005 with another motor vehicle driven by Cuzco. On November 3, 2005, counsel for Hashim notified plaintiff in writing of the personal injuries. Hashim commenced the underlying action against Cuzco, and moved, in May 2006, for summary default judgment when Cuzco failed to answer. On June 19, 2006, plaintiff wrote to Hashim's attorney, advising that since its recent receipt of Hashim's motion for default judgment was the insurer's first notification of legal action against its insured, it was accordingly disclaiming coverage under the policy. Hashim's counsel wrote back to plaintiff that its disclaimer letter was transmitted "after an unidentified person from your firm called me to ask whether we would voluntarily accept an answer in your behalf, to which I replied that we would not." On or about July 28, 2006, a default judgment was entered against Cuzco, with inquest scheduled for September 26, 2006. At the inquest, damages were assessed and awarded to Hashim in the amount of $250,000.
Having received timely notice of claim, plaintiff insurer was not entitled to disclaim coverage based on untimely notice of the claimant's commencement of litigation unless it was prejudiced by the late notice (American Tr. Ins. Co. v B.O. Astra Mgt. Corp., 39 AD3d 432 [2007], lv denied 9 NY3d 802 [2007]). Plaintiff has not demonstrated prejudice by reason of the late notice of the underlying action. Plaintiff was notified of the legal action after the motion for a default judgment was made, but before the July 28, 2006 order scheduling an inquest. It could have appeared, opposed the motion, and filed for leave to file a late answer, but pursued none of those options.
Hashim failed to appeal from the order insofar as it denied his request for a direction that ]plaintiff satisfy the judgment in the underlying action. However, were we to consider the issue, we would find that recovery is confined to the monetary limits of the policy (Insurance Law § 3420[a][2]).
All concur except Nardelli, J. who dissents in a memorandum as follows:

NARDELLI, J. (dissenting)
I would modify the declaration in defendant's favor to declare that plaintiff American Transit Insurance Company is obligated to defend and/or indemnify Jose Cuzco in the underlying  negligence action on condition that defendant Mohamed Hashim consent to vacatur of the default judgment he obtained, and permit American Transit to file an answer on behalf of Cuzco.
It is clear that counsel for Hashim, despite having previously exchanged correspondence with claims representatives at American Transit, did not notify American Transit of the negligence action until after he moved for a default judgment. He further acknowledges that he had spoken with claims examiners for American Transit on at least six occasions prior to any litigation. Yet, he did not give American Transit the courtesy of advising it that litigation had been commenced.
Even after the lawsuit was commenced, and it was evident that Cuzco was not corresponding with his insurer, counsel for Hashim did not advise American Transit of the lawsuit. Only after he submitted a motion for a default judgment did he advise American Transit that the matter was in litigation. He admits that within a few days after American Transit was finally and actually made aware of the motion for a default judgment, a representative telephoned him, and advised that American Transit was willing to defend and indemnify Cuzco, if he would agree to accept a late answer. He refused this requested courtesy, despite the fact that all evidence indicates that American Transit had just become aware of the lawsuit.
Of particular concern in evaluating counsel's good faith is a clouded representation in his affidavit in support of his motion for summary judgment in this action. At paragraph eight he states that notice of the lawsuit had been provided to American Transit on May 3, 2006, and that the June 19, 2006 disclaimer letter from American Transit was thus untimely. Review of the May 3, 2006 letter, however, makes clear that the letter was addressed to Cuzco, with a copy sent to American Transit, and advised Cuzco to contact his insurance company about "correspondence" which he had received previously. The letter did not advise that the "correspondence" was actually a summons and complaint.
In reality, American Transit did not receive notice of the actual litigation until June 5, 2006, when counsel for Hashim first communicated directly with the insurer.
While some may question American Transit's strategy in not opposing the motion for a default judgment, and then commencing the declaratory action two months later, the issue for this Court is not whether American Transit was wise, but whether it was prejudiced (see American Tr. Ins. Co. v B.O. Astra Mgt. Corp., 39 AD3d 432 [2007], lv denied 9 NY3d 802 [2007]). Inasmuch as counsel for Hashim did not advise the insurer of the pendency of the litigation until after he had moved for a default judgment, and then refused the common and professional courtesy of permitting it to file an answer, the prejudice is self-evident. There is no guarantee that the trial court would have extended American Transit's time to answer, especially in view of Hashim's opposition.
The underlying negligence action was commenced on February 24, 2006, and Hashim's counsel did not advise the insurer of the pendency of the action until June 2006. No excuse is offered for the delay in giving notice, and, additionally, counsel was not quite candid about a purported notice given two months after the litigation was commenced. Since counsel had been in communication with the insurer on several occasions before the litigation was commenced, and yet did not timely advise of the pendency of the litigation, there is no justification for finding that the insurer's conduct was more grievous than Hashim's, or that it was not prejudiced. No one will suffer if this action is tried on the merits.
D'Ariano v. Meldish


Nick Fiore, Pound Ridge, for appellants.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York
(Joseph A.H. McGovern of counsel), for respondents.
Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or about October 16, 2008, which granted defendants' motion for summary judgment dismissing the complaint for lack of serious injury, unanimously affirmed, without costs.
Defendants carried their prima facie burden by showing that the injured plaintiff's disc condition was degenerative and not caused by the trauma of the accident. Plaintiffs failed to adequately address such showing (see DeJesus v Paulino, 61 AD3d 605, 607-608 [2009]); speculation by plaintiff's family physician, that a radiologist who conducted an MRI of plaintiff's lumbar spine would have noted the existence of degenerative disc disease in his report had he seen any, was properly rejected by the motion court. In view of the foregoing, it is unnecessary to address the parties' other contentions.
Frydman v Fidelity National Title Insurance Company



Frydman LLC, New York (David S. Frydman of counsel), for
appellants.
McCullough, Goldberger & Staudt, LLP, White Plains
(Patricia Wetmore Gurahian of counsel), for respondent.
Judgment, Supreme Court, New York County (Debra A. James, J.), entered March 3, 2009, declaring that defendant title insurer has no obligation to defend and indemnify plaintiffs in an underlying action, unanimously affirmed, with costs.
The subject title policy took effect as of May 26, 1999, the date the insureds acquired title to the insured property. Insofar as pertinent to the appeal, the policy specifically excludes from coverage "rights of tenants or persons in possession." It additionally excludes "fences ... [that] vary with the record lines," as indicated in a 1972 "survey report," as well as a May 5, 1999 "survey inspection" reporting no changes to the property's "boundary indicator."
The 2002 underlying complaint for adverse possession against plaintiffs by their neighbors was based entirely on the location of a fence that varied from the actual boundary line. Thus, the policy's exception to coverage for varying fences clearly applies.
Assuming, as plaintiffs argue, that the pre-policy "certificate of title," dated May 26, 1999, and the attached "marked title report" reveal an intention to cover claims based on a fence that varied from the actual boundary line, we would find that any such intention did not survive issuance of the policy. The certificate of title specifically states that upon delivery of the final policy, the certificate becomes null and void. Moreover, Section 15 of the policy specifically states that, together with any attached endorsements, it constitutes the entire contract between the parties, and defendant's liability is limited only to its terms (see Hess v Baccarat, 287 AD2d 834 [2001]).
Plaintiffs' reliance on Fresh Pond Rd. Assoc. v TRW Title Ins. of N.Y. (176 AD2d 660 [1991]) is misplaced, since the case is distinguishable. In that case, since the insurance policy contained only general exclusionary language and a marked title report contained handwritten notes indicating that certain specific exclusions were to be omitted from the policy, we found issues of fact as to the intended scope of the policy. Here, the policy contains specific exclusions, and pursuant to its terms is the sole agreement between the parties. We have considered plaintiffs' argument that the court improperly converted a breach of contract action into a declaratory judgment action and, without CPLR 3211(c) notice, converted a motion bydefendant to dismiss the complaint into a motion for summary judgment, and find it to be unavailing (see CPLR 2002; Shah v Shah, 215 AD2d 287, 289 [1995]). This case contains no factual disputes, and by submitting before the Supreme Court every relevant piece of documentary evidence, along with affidavits of representatives of both parties discussing the application of such evidence, the parties have charted a course for summary judgment. Accordingly, the court properly entered a declaratory judgment in favor of defendants.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
Tyson v Tower Insurance Company of New York


Matarazzo Blumberg & Associates, LLP, New York, N.Y. (Barbara
A. Matarazzo of counsel), for respondent-appellant.


DECISION & ORDER
In an action to recover damages for breach of contract, (1) the defendant appeals from so much of an order of the Supreme Court, Queens County (McDonald, J.), dated April 10, 2008, as denied its cross motion for leave to amend its answer, and the plaintiff cross-appeals from so much of the same order as denied her motion for summary judgment on the complaint, and (2) the plaintiff appeals from so much of an order of the same court dated November 20, 2008, as denied her motion for leave to reargue and renew her motion for summary judgment on the complaint.
ORDERED that the appeal from so much of the order dated November 20, 2008, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument (see Boakye-Yiadom v Roosevelt Union Free School Dist., 57 AD3d 929); and it is further,
ORDERED that the order dated April 10, 2008, is reversed insofar as appealed from, on the law, and the defendant's motion for leave to amend its answer is granted; and it is further,
ORDERED that the order dated April 10, 2008, is affirmed insofar as cross-appealed from; and it is further,
ORDERED that the order dated November 20, 2008, is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
This case arises from a dispute over a fire insurance policy issued by the defendant to the plaintiff on a two-family house owned by the plaintiff in St. Albans, Queens. While the plaintiff was under contract to sell the house, it was badly damaged by a fire. Nevertheless, the plaintiff allegedly sold the property after the fire at the original contract price. Thereafter, the plaintiff and the defendant disputed the amount due under the provisions of the policy. The plaintiff commenced this action seeking damages for breach of contract, and eventually moved for summary judgment on the complaint. The defendant opposed the plaintiff's motion and cross-moved for leave to amend its answer to assert an affirmative defense that the plaintiff had breached a condition of the policy. The Supreme Court denied the motion and the cross motion, and later denied the plaintiff's motion for leave to reargue and renew her prior motion for summary judgment on the complaint.
Contrary to the plaintiff's contentions, the Supreme Court properly denied her motion for summary judgment on the complaint because she failed to meet her initial burden of establishing her prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Under the so-called "broad rule of evidence" applicable here, the plaintiff failed to establish the "actual cash value" of the loss, a burden she was required to carry under the policy since the fire damage had not been repaired (see Gervant v New England Fire Ins. Co., 306 NY 393, 398; McAnarney v Newark Fire Ins. Co., 247 NY 176, 184; Mazzocki v State Farm Fire & Cas. Corp., 1 AD3d 9, 12; Incardona v Home Indem. Co., 60 AD2d 749, 750). Further, the Supreme Court properly denied the plaintiff's motion for leave to renew her motion, since she did not offer a reasonable justification for failing to present in her initial motion the documentary evidence offered in support of renewal (see CPLR 2221[e]; Renna v Gullo, 19 AD3d 472).
The Supreme Court erred, however, in denying the defendant's cross motion for leave to amend its answer. Motions for leave to amend pleadings should be freely granted, absent prejudice or surprise directly resulting from the delay in seeking leave, unless the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b]; Lucido v Mancuso, 49 AD3d 220, 222). The defendant sought to amend its answer to include as an affirmative defense that the plaintiff had breached the policy's "[c]oncealment or fraud" condition. Contrary to the plaintiff's contention, the proposed amendment was not patently devoid of merit. Therefore, with no showing of prejudice or surprise resulting directly from the defendant's delay in seeking leave, the court should have granted the defendant's cross motion for leave to amend its answer.
FISHER, J.P., COVELLO, SANTUCCI and BALKIN, JJ., concur.
Stilianudakis v Tower Insurance Company of New York


Milber Makris Plouasdis & Seiden, LLP, Woodbury, N.Y. (Lorin
A. Donnelly and Sarah M. Ziolkowski of counsel), for appellant.
Sacco & Fillas, LLP, Whitestone, N.Y. (Luigi Brandimarte of
counsel), for respondent.


DECISION & ORDER
In an action, inter alia, to recover damages for negligent misrepresentation, the defendant Avenia Ins. Agency, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Weiss, J.), entered July 31, 2008, as denied that branch of its motion which was to dismiss the third cause of action to recover damages for negligent misrepresentation pursuant to CPLR 3211(a)(7).
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Avenia Ins. Agency, Inc., which was to dismiss the third cause of action to recover damages for negligent misrepresentation pursuant to CPLR 3211(a)(7) is granted.
"A claim for negligent misrepresentation requires the plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information" (J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 148). Here, the plaintiff failed to allege any misrepresentation on the part of the defendant Avenia Ins. Agency, Inc. (hereinafter the appellant), which procured an insurance policy on his behalf to cover his building (see Wong v Gottbetter, 18 AD3d 541; cf. Ambrosino v Exchange Ins. Co., 265 AD2d 627), or the existence of a special relationship with the appellant upon which a cause of action alleging negligent misrepresentation could be predicated (see Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d 152; Murphy v Kuhn, 90 NY2d 266; Kay Bee Bldrs., Inc. v Merchant's Mut. Ins. Co., 61 AD3d 720, 722; Curiel v State Farm Fire & Cas. Co., 35 AD3d 343; Duratech Indus., Inc. v Continental Ins. Co., 21 AD3d 342, 345).
Moreover, to the extent that the third cause of action asserted against the appellant can be construed as one alleging negligent procurement of a policy, it must nevertheless fail because, having received the policy more than two years prior to the fire, the plaintiff is conclusively presumed to have read and assented to its terms (see Loevner v Sullivan & Strauss Agency, Inc., 35 AD3d 392, 395; Busker on Roof Ltd. Partnership Co. v Warrington, 283 AD2d 376, 377; Rotanelli v Madden, 172 AD2d 815).
The appellant's remaining contention is not properly before this Court.
Runner v New York Stock Exchange, Inc.,


Steven J. Ahmuty, Jr., for appellants.
Scott N. Singer, for respondent.
Defense Association of New York, Inc., amicus curiae.

LIPPMAN, Chief Judge:
The Second Circuit Court of Appeals, in the course of considering defendants' appeal from a judgment imposing liability upon them pursuant to Section 240 (1) of New York's Labor Law, has certified to us two questions respecting the applicability of that statute. We now answer that the statute is applicable under the circumstances here presented.
The trial evidence showed that plaintiff suffered serious and permanent injuries to both of his hands while performing tasks in connection with the installation of an Uninterruptible Power System on defendant New York Stock Exchange's premises. The manner in which the injuries were sustained is undisputed. Plaintiff and several co-workers had been directed to move a large reel of wire, weighing some 800 pounds, down a set of about four stairs. To prevent the reel from rolling freely down the flight and causing damage, the workers were instructed to tie one end of a ten-foot length of rope to the reel and then to wrap the rope around a metal bar placed horizontally across a door jamb on the same level as the reel. The loose end of the rope was then held by plaintiff and two co-workers while two other co-workers began to push the reel down the stairs. As the reel descended, it pulled plaintiff and his fellow workers, who were essentially acting as counterweights, toward the metal bar. The expedient of wrapping the rope around the bar proved ineffective to regulate the rate of the reel's descent and plaintiff was drawn horizontally into the bar, injuring his hands as they jammed against it. Experts testified that a pulley or hoist should have been used to move the reel safely down the stairs and that the jerry-rigged device actually employed had not been adequate to that task.
The jury, having been instructed that liability pursuant to Labor Law § 240 (1) could not be assigned unless plaintiff's injuries had been attributable to a gravity-related risk, and having found that no such risk had been implicated, returned a verdict for defendants. A motion by plaintiff to set aside the verdict ensued. In granting the motion and directing judgment for the plaintiff upon his Labor Law § 240 claim, the District Court found, as a matter of law, that the movement of the reel down the stairs presented a gravity-related risk; that an adequate safety device had not been used to manage the risk; and that that failure had been a substantial factor in causing plaintiff's injury.
Defendants appealed, and the Second Circuit after its initial review of the matter, certified to us these questions:
"I. Where a worker who is serving as a counterweight on a makeshift pulley is dragged into the pulley mechanism after a heavy object on the other side of a pulley rapidly descends a small set of stairs, causing an injury to plaintiff's hand, is the injury (a) an elevation related injury,' and (b) directly caused by the effects of gravity, such that section 240 (1) of New York's Labor Law applies?
"II. If an injury stems from neither a falling worker nor a falling object that strikes a plaintiff, does liability exist under section 240 (1) of New York's Labor Law?"
While these inquiries are not inapropos, we think the dispositive inquiry framed by our cases does not depend upon the precise characterization of the device employed or upon whether the injury resulted from a fall, either of the worker or of an object upon the worker. Rather, the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.
Labor Law § 240 (1) provides in relevant part:
"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
It is plain that a device precisely of the sort enumerated by the statute was not "placed and operated as to give proper protection" to plaintiff, a person employed in the alteration of a building and thus within the statute's stated protective ambit. The breadth of the statute's protection has, however, been construed to be less wide than its text would indicate. As is here relevant, it is generally agreed that the purpose of the strict liability statute is to protect construction workers not from routine workplace risks, but from the pronounced risks arising from construction worksite elevation differentials, and, accordingly, that there will be no liability under the statute unless the injury producing accident is attributable to the latter sort of risk (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). The trial court was of the view that plaintiff's accident arose from such a risk: the reel had to be moved from a higher to a lower elevation and the danger to be guarded against plainly arose from the force of the very heavy object's unchecked, or insufficiently checked, descent.
Defendants contend to the contrary that the accident was not sufficiently elevation-related to fall within § 240 (1)'s scope. The occurrence, they note, did not involve the traversal of an elevation differential either by plaintiff or an object that hit him, and they urge that gravity must operate directly upon either the plaintiff or upon an object falling upon the plaintiff if there is to be Labor Law § 240 (1) liability. In support of this view, defendants point out that in Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494, 501 [1993]) we observed that "the 'special hazards' [covered by § 240 (1)] are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured (see, DeHaen v Rockwood Sprinkler Co., 258 NY 350)," and that in Narducci v Manhasset Bay Assoc. (96 NY2d 259, 267 [2001]), we noted that "Labor Law § 240 (1) applies to both 'falling worker' and 'falling object' cases." But in referring to these familiar scenarios in which § 240 (1) liability may arise, neither decision purports exhaustively to define the statute's protective reach. Rather, the governing rule is to be found in the language from Ross following closely upon that just quoted, where we elaborated more generally that "Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (Ross, 81 NY2d at 501 [emphasis in original]).
Manifestly, the applicability of the statute in a falling object case such as the one before us does not under this essential formulation depend upon whether the object has hit the worker. The relevant inquiry — one which may be answered in the affirmative even in situations where the object does not fall on the worker — is rather whether the harm flows directly from the application of the force of gravity to the object. Here, as the District Court correctly found, the harm to plaintiff was the direct consequence of the application of the force of gravity to the reel. Indeed, the injury to plaintiff was every bit as direct a consequence of the descent of the reel as would have been an injury to a worker positioned in the descending reel's path. The latter worker would certainly be entitled to recover under § 240 (1) and there appears no sensible basis to deny plaintiff the same legal recourse.
In certifying its questions to us, the Second Circuit observed that "Defendants offer a litany of illustrative cases highlighting various limitations on section 240 (1) . . . none of which address the material facts of the instant case" (568 F3d 383, 387). And, indeed, we have not, until now, addressed a factual progression which, although not following one of the two scenarios defendants would have us deem exhaustive, nonetheless involves an injury directly attributable to a risk posed by a physically significant elevation differential.
The elevation differential here involved cannot be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent. And, the causal connection between the object's inadequately regulated descent and plaintiff's injury was, as noted, unmediated — or, demonstrably, at least as unmediated as it would have been had plaintiff been situated paradigmatically at the rope's opposite end. It is in this respect that this case differs from Toefer v Long Is. R.R. (4 NY3d 399 [2005]), upon which defendants rely. There, the injury was the result of a concatenation of circumstances resulting in the "inexplicable" launch of an object — not a falling object — in plaintiff's direction (id. at 408); it was not, as here, the direct consequence of a failure to provide statutorily required protection against a risk plainly arising from a workplace elevation differential.
Accordingly, the first certified question, as recast, should be answered in the affirmative and the second certified question left unanswered, as unnecessary.
* * * * * * * * * * * * * * * * *
Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.27 of the Rules of Practice of the New York State Court of Appeals, and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified questions answered in accordance with the opinion herein. Opinion by Chief Judge Lippman. Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

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