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Coverage Pointers - Volume XI, No. 16

Dear Coverage Pointers Subscribers:

 

Atta Lawyer - Special Kudos to Audrey Seeley

Special congratulations to the Queen of No Fault, Audrey Seeley, who was awarded the prestigious Sheldon Hurwitz Young Lawyer's Award by the Torts, Insurance & Compensation Law Section of the New York State Bar Association at the Bar's Annual Meeting in New York City last week.  Audrey was honored for her outstanding contributions to the field of Insurance Law.  Named after our co-founder, Shelly Hurwitz, this award is presented to a lawyer admitted 10 years or less who has made a significant contribution to the industry.

 

Audrey has served as a state-wide consultant on No Fault issues for a number of insurers, has lectured at local, state and national programs on a variety of insurance issues and is just a delight to be around.  We're really proud of her and know that Shelly is smiling from his vantage point up above.

 

Health Insurance Subrogation Changes -- Counseling Points

In our November 28th edition, we discussed the significant changes enacted with respect to health insurance carrier subrogation, by the adoption of General Obligations Law § 5-335. Since we have had so many questions about the changes, we remind you of their importance:

The new law has an immediate effect on pending litigation since it prohibits a plaintiff who has settled with one or more defendants from being charged with violating a health insurer's alleged equitable or contractual subrogation rights.  The New York State Trial Lawyers Association, representing the plaintiffs' bar, pressed hard for these amendments.  According to the sponsors, the new law seeks to prevent health insurers from complicating cases and delaying settlements, and conclusively "presumes" that the settlement does not include compensation for medical expenses (except those subject to statutory liens or are Additional Personal Injury Protection under NY No Fault. 

The new law essentially detracts from and overrules two Court of Appeals decisions, Teichman v. Community Hosp. of Western Suffolk, 87 N.Y.2d 514 (1996), and Fasso v. Doerr, 12 N.Y.3d 80 (2009), to the extent they recognized health coverage subrogation.  The relevant section of the new statute reads, with emphasis added by bold letters and underscores:

§ 5-335. Limitation of non-statutory reimbursement and subrogation claims in personal injury and wrongful death actions. (a) When a plaintiff settles with one or more defendants in an action for personal injuries, medical, dental, or podiatric malpractice, or wrongful death, it shall be conclusively presumed that the settlement does not include any compensation for the cost of health care services, loss of earnings or other economic loss to the extent those losses or expenses have been or are obligated to be paid or reimbursed by a benefit provider, except for those payments as to which there is a statutory right of reimbursement.  By entering into any such settlement, a plaintiff shall not be deemed to have taken an action in derogation of any nonstatutory right of any benefit provider that paid or is obligated to pay those losses or expenses; nor shall a plaintiff's entry into such settlement constitute a violation of any contract between the plaintiff and such benefit provider.  Except where there is a statutory right of reimbursement, no party entering into such a settlement shall be subject to a subrogation claim or claim for reimbursement by a benefit provider and a benefit provider shall have no lien or right of subrogation or reimbursement against any such settling party, with respect to those losses or expenses that have been or are obligated to be paid or reimbursed by said benefit provider.

Now, the new statute does not allow double recovery of these expenses.  If the jury awards medical expenses and they have been covered by health insurance, the court will reduce the award based on that collateral source.  This does not impact Workers Compensation or Social Services liens, which are statutory and there is another section of the bill that preserves APIP subrogation.

The new law seeks to remedy the proliferation of health insurers attempting to intervene in cases to assert equitable or contractual subrogation claims.  Further, the health insurance carrier was also able to recover medical expenses through subrogation rights even though the plaintiff was unable to recover under CPLR § 4545(c) due to the collateral source rule.  The new legislation ends insurance subrogation rights to settlements unless there is a statutory right to reimbursement

Does the Statute Only Apply to Settlements of Lawsuits Commenced or Does it Apply to Settlements Prior to Suit?

With a tip of the hat to Joel Appelbaum and Wayne Richardson from Progressive for raising the issue...

The underscored terms of the new statute, which include the words "action" and "plaintiff" seem to limit the applicability of the law only to settlements of a lawsuit where the person settling is a plaintiff.  Why is that important?  If the courts view this statute narrowly and apply it only to its terms, a settlement of a claim prior to the commencement of a lawsuit would not give the settling parties protection from future subrogation claims by benefit providers.

Now that's darn silly, but that is a reasonable reading of the language of the statute..

What's the remedy?  The Legislature should step in and amend the law and make it clear that it is intended to apply to matters settled before a lawsuit is commenced.

"Better Safe than Sorry" Counseling Point:  Until such time as the Legislature steps in and amends the statute or the courts rule that the intention of the statute was for it to apply to matter settled prior to suit, a plaintiff, defendant or insurer that is trying to assure that the settlement of a claim terminates any future subrogation claims under the law should insist that a Summons with Notice is filed in the Clerk's office, officially commencing a lawsuit prior to the settlement.  Once a lawsuit is commenced, the claimant becomes a plaintiff and the statute appears to be triggered.  Call with any questions.

Audrey Seeley's Greetings:

2010 is shaping up to be an auspicious year. 

 

I was honored and privileged to be awarded the Sheldon Hurwitz Award by the Torts, Insurance and Compensation Section of the New York State Bar Association last week in New York City.  This award is given to a "young lawyer" in recognition of her outstanding contribution to the practice of law in insurance.  This award is named after a founder of Hurwitz & Fine, PC, Shelly Hurwitz, who had such a zeal for the practice of law, and in particular insurance coverage, as well as firmly believing in giving back to the community.  My partner and one of my mentors, Dan Kohane, was its first recipient in 1983.  There is no question that he embodies the aforementioned principles and over the years he has instilled them in me.  It is an honor to be recognized as yet another generation at Hurwitz & Fine that has the same principles Shelly lived by.

 

In this edition of Coverage Pointers we bring you a number of cases wherein the Appellate Term is taking a careful look at summary judgment motions to ascertain if either party has met its burden.  It is noteworthy that there are many decisions in which the insurer's motion has been granted on appeal as the plaintiff has not sufficiently rebutted the lack of medical necessity.

 

Please don't forget the DRI Insurance Coverage and Claims Institute in Chicago this April.  It is a great program and for those who focus on professional liability there is an entire half day track devoted solely to professional liability insurance topics.  If you would like the brochure or have any questions please email me at [email protected]


Audrey

 One Hundred Years Ago Today (and Why Your Editor is $3.00 Poorer):

 

New York Times

February 5, 1910

SETS ASIDE VERDICT IN A MURDER CASE

--

Justice Goff Dumfounds Defense by Granting a Perfunctory Motion for a New Trial

--

AND EVERYONE ELSE GASPED

--

Prisoner Had Fared Well, One Stubborn Juror Alone Having Saved Him from the Extreme Penalty

--

Supreme Court Justice Goff made everybody about the Criminal Court Building gasp yesterday by setting aside the verdict in a murder trial in a manner new to present generation to lawyers to court. In the words of one of the denizens of the corridors, "it was generally felt that the Recorder had put one over on the criminal bar."

 

After more than seventeen hours' deliberation, the jury announced, shortly before noon yesterday, that it had found Edward F. McGrath, alias Frank Webster, alias Frank Ryan, guilty of murder in the second degree.  From the very first ballot it is understood that eleven jurors stood out for murder in the first degree, but the twelfth man was stubborn, and in the end he triumphed.

 

Straightaway, as is the custom in such cases, Robert H. Hibbard, counsel for the defense, was on his feet, mumbling perfunctorily the motion for a new trial on the ground that the verdict was against the weight of the evidence.

 

"Has the District Attorney any objection?" asked Justice Goff, quietly but it seemed as though Frank Moss caught a gleam in the judicial eye. 

 

"None," he answered for the prosecution.

 

"The motion is granted."

 

It was all done in a flash, and it was not a friendly glance which the defendant shot at his gasping counsel.  Mr. Hibbard was for the withdrawal of his motion but he was patiently assured that a granted motion cannot be withdrawn.

 

"Then I take exception to your Honor's ruling," he said.

 

"You cannot take exception to the granting of your own motion, said Justice Goff. "The verdict is set aside and the man will have a new trial forthwith."

 

Five days later, the second trial against Mr. McGrath commenced, and this time he was found guilty of murder in the first degree and sentenced to death in the electric chair for the murder of one Benjamin Rose.  Not happy, Mr. McGrath appealed and the following year, the Court of Appeals reversed the second conviction and reinstated the first verdict, sentencing McGrath to 20 years in Sing Sing. See, People v. McGrath, 202 NY 445 (1911).

 

Editor's Note: Edward McGrath was paroled 16 years later, and in 1934, he wrote a book of his experiences, which your editor acquired for $3.00 on Amazon, entitled "I Was Condemned to the Chair."  [Your editor would be happy to sell it for $2.00 to anyone who wants it]. It was not Pulitzer Prize material. It begins:

 

Chapter I

I was to die?

 

I was to burn!  Eighteen hundred volts of electricity would pass through my body.  It was to strain against the straps that bound it to the chair. Sparks and flame would play about the metal crown on my head.  Suddenly muscles would relax and I would slump forward - dead!

 

Yes, Chris.  Today is a Holiday:

 

Chris Potenza accosted me in the hall.  "Now that the ground hog has seen his shadow and Valentine's Day is not for another week or so, you have no holidays to report on in Coverage Pointers.

 

Wrongo, my friend.  February 5 is National Weatherperson's Day, commemorating the birth of John Jeffries in 1744. Jeffries, one of America's first weather observers, began taking daily weather observations in Boston in 1774 and he took the first balloon observation in 1784. One website tell us that this is an appropriate time to recognize the men and women who collectively provide Americans with the best weather, water and climate forecasts and warning services of any nation.

 

I mean think of it - weather forecasting is one of the very few professions where one can predict in error time and time again, yet continue to thrive in business.  Well, other than insurance claims professionals and attorneys, I mean.

 

Valentine's Day (anon):

 

I received a special request, late today, to reprise my February 8, 2008 historical overview of Valentine's Day and I am delighted to do so:

 

How do you celebrate Valentine's Day?  Do you do it the modern way and send cards, candy, flowers and gifts?  I would hope not. I thought a little history of the holiday would help you recreate a more traditional approach, steeped in history.

 

During the third century in Rome, Emperor Claudius II who was only emperor for two short years, by the way (August 268 to January 270) was preparing to fight the Goths.  [Editor's note:  who wouldn't fight the Goths, given the opportunity?]  Anyway, he decided that single men would be better soldiers than married ones so he outlawed marriage for young men.  However, one young priest, Valentine, believing that the Emperor's decree was unjust, continued to perform weddings.  Rumor had it that he had a financial interest in a chapel and later moved to Vegas.   Claudius learned of Valentine's defiance, and had him imprisoned.  While in jail, he fell in love with the jailer's daughter and it is said that before his death, he wrote her a love letter, which he signed "From your Valentine." 

 

Valentine's feast day was set to commemorate his death in February 270, and that was also used to make it into a Christian holiday, the pagan Lupercalia Festival, which also celebrated the beginning of spring.  That Festival involved the sacrifice of a goat for fertility and a dog for purification.  The goat hide would be sliced into strips, dipped in sacrificial blood, and taken to the streets by young men who would slap women with the strips, apparently making the women more fertile.  Pope Gelasius, seeking to end the pagan holiday but continue the tradition, declared February 14 as St. Valentine's Day around 496 A.D.  So there you go.  Forget the card, forget the candy, and forget the flowers.  Chase your sweetheart around the room and slap him or her with dried goat strips dipped in blood, and you'll be celebrating the holiday the right way.

 

Just don't tell the PETA people.

 

In this Week's Issue, Attached:

 

KOHANE'S COVERAGE CORNER

Dan D. Kohane

[email protected]

  • Town Enjoys Additional Insured Status Under Two Policies.  Until Final Inspections, Operations Considered Ongoing (Under One Policy).  Issuance of Certificates of Insurance Not Critical to Coverage (Under Other Policy)

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

Margo M. Lagueras

[email protected]

  • Proof of No Serious Injury Meets Burden Under All Categories
  • 90/180-Day Claim Survives
  • Deposition Testimony May Cure Defects in Expert's Report
  • Once Again, Claims in Bill of Particular Must Be Specifically Addressed
  • Permanent Consequential and Significant Limitation of Use Categories Require Findings Contemporaneous with Accident
  • Injury That Affects Ability to Roller or Ice Skate Does Not "Substantially" Impact All Activities of Daily Living
  • Treating Physician Fails to Address Findings by Defendant's Radiologist Rendering His Conclusion Regarding Causation Speculative
  • Defendants Fail to Address 90/180-Day Claim Set Forth in Bill of Particulars
  • Report That Fails to Quantify or Qualify ROM Limitations Fails to Show Limitations Are Insignificant
  • Report That Fails to Compare Limitations with Norm Does Not Support That Limitations Are Mild or Minor
  • Doctor's Medical Submissions Must Be Affirmed
  • Findings That Accident Exacerbated Preexisting Conditions Are Speculative Where Prior Accident Is Not Addressed
  • Affirmation Tailored to Meet Statutory Requirements and Which Relies Solely on Subjective Complaints Is Insufficient
  • Untimely Motion Brought on "Nearly Identical" Grounds as Timely Motion May Properly Be Considered

AUDREY'S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

Arbitration

  • Improper Information Provided to EIP Is Reasonable Justification for Not Appearing for IME
  • Failure to Causally Relate or Even Mention MVA to Support Chiropractic Care for Some 10 Years Fatal to Claim

Litigation

 

  • Failure to Have Affiant's Signature on Affidavit Fatal to Summary Judgment Motion
  • Plaintiff's Failure to Rebut Independent Physician's Conclusions Insufficient to Raise Issue of Fact
  • Insurer Not Precluded From Arguing Lack of Coverage Because Denial Not Issued Timely
  • Court Searched Record and Granted Insurer SJ as Bill Paid at Correct Fee
  • Insurer's Partial SJ Motion Should Have Been Granted for Plaintiff's Failure to Rebut
  • Insurer's Affidavit and Peer Review Create Issue of Fact Precluding Summary Judgment
  • Plaintiff's Action Premature Due to Outstanding Verification
  • Plaintiff's Affidavit Insufficient to Establish Prima Facie Case 

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper

[email protected]

  • Statements of Physician in Confidential Medical Report Cannot Give Rise to Claim for Defamation
  • Single Family Home Exception in Labor Law Protects Defendant Homeowner
  • Plaintiff's Motion Under Labor Law § 240(1) Is Denied Where Plaintiff Could Not Establish That His Injuries Were Proximately Caused by Defendants' Failure to Provide Adequate Protection 

FIJAL'S FEDERAL FOCUS

Katherine A. Fijal

[email protected]

  • When Is A Policy Definition An Exclusion?

EARL'S PEARLS

Earl K. Cantwell

[email protected]

  • Limitation of Liability Clause Sends Plaintiff's Case Down The Drain

Well, I won't see you until after Valentine's Day, so if you're sending chocolate, I prefer the nice dark ones.  In case you were wondering.

 

All the best.

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]witzfine.com
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
Earl’s Pearls
Across Borders


KOHANE’S COVERAGE CORNER
Dan D. Kohane

[email protected]


1/28/10           Town of Fort Ann v. Liberty Mutual Insurance Company
Appellate Division, Third Department
Town Enjoys Additional Insured Status Under Two Policies.  Until Final Inspections, Operations Considered Ongoing (Under One Policy); Issuance of Certificates of Insurance Not Critical to Coverage (Under Other Policy)
The Hadlock Dam failed on July 2, 2005.  Owned by the Town of Fort Ann (“Town”) it had been rebuilt in 2004 and 2005 by Kubricky. In addition to the construction contract with Kubricky, the Town contracted with Heynan for engineering services. When the dam failed, lawsuits ensued.  The Town was insured by NYMIR and the Town and NYMIR sought defense and indemnity from Kubricky’s insurer, Liberty and Heynan’s insurer, Steadfast. The Town claimed additional insured (AI) status under both polices but both carriers denied.
Kubricky's policy with Liberty Mutual extended additional insured status to an entity while ongoing operations were taking place. Work may be considered as ongoing during a short lapse of time necessary to conduct tests designed to assure proper performance where such testing is an essential element of the work by the insured (see Perez v New York City Hous. Auth., 302 AD2d 222, 222 [2003]; cf. 9A Couch on Insurance 3d § 129:24). While major construction by Kubricky had ended one to two months before the dam's failure, inspection of the project by the engineer, which was required before Kubricky's work was considered completed under the contract, had not yet occurred. The inspection was a major part of the process so operations had not yet come to an end.  Liberty was compelled to defend.
With regard to Steadfast, the policy provided that a client of Heynan would be an additional insured when "required by written contract executed and effective before the performance of 'your work' or 'covered operations.'" The written contract between Heynan and the Town was executed before Heynan's work on the project commenced.  Steadfast argued that the contract required that “certificates of insurance will be furnished upon request naming the Town of Fort Ann . . . as additional insured" and since the Town never requested the Certificate, coverage was not afforded. The Court disagreed with Steadfast.  Issuing certificates was not a condition to coverage.  The parties contemplated coverage if required by written contract, irrespective of the certificates being requested or issued.

MARGO’S MUSINGS ON SERIOUS INJURY UNDER NEWYORK NO FAULT
Margo M. Lagueras

[email protected]


2/4/10             Howard v. Espinosa
Appellate Division, Third Department
Proof of No Serious Injury Meets Burden Under All Categories
The then 76-year old plaintiff was rear-ended in 2005.  The Court noted that it was beyond dispute that he had a significant medical history, including a prior accident in which he sustained back and neck injuries.  Among the defendants’ submissions was the plaintiff’s 2004 application for Veteran’s Administration disability benefits in which his wife stated that he was unable to walk more than 100 feet without pain and that this restricted his daily activities.  In addition, the defendants’ examining physician stated that the plaintiff’s 2005 post-accident MRI and a 2002 MRI were essentially the same and that the slight difference between the two was the “natural progression” of the plaintiff’s long-standing spondylosis. 

The plaintiff did not dispute that the defendants met their initial burden except with regard to the 90/180-day category.  He argued that, because defendants’ examining physician did not address limitations within the first 180 days following the accident, they failed to demonstrate lack of serious injury under that category.

The Court held that by offering evidence that the plaintiff did not sustain any serious injury as a result of the 2005 accident, their burden was met under all the categories.  The court further noted that although the plaintiff offered an IME exam to show range-of-motion limitations, the IME doctor did not compare the plaintiff’s current complaints with those prior to the accident, nor did he specify what injuries were caused by the accident, or even whether the new bulge was caused by the accident or, as stated by the defendants’ examining physician, a “natural progression.”  As regards the 90/180-day claim specifically, the Court noted that as the defendants satisfied their burden, the burden then shifted to the plaintiff and he did not offer any medical evidence to link an alleged curtailment of activities to an exacerbation of pre-existing injuries.  There was nothing in the record to show to what extent any limitations were due to the 2005 accident rather than to pre-existing conditions.
Note:  The Court reminds us that a physical therapist cannot diagnose, make prognoses, or determine permanency or duration of physical limitations.

2/2/10             Sampson v. Vinlo Cab Corp.
Appellate Division, First Department
90/180-Day Claim Survives
On appeal, the plaintiff’s claim under the 90/180-day category is reinstated because the defendants’ experts did not examine the plaintiff until three years after the accident, only addressed the claims of permanent injury, and the defendants did not submit any other evidence, such as the plaintiff’s own deposition testimony, to rebut the 90/180-day claim.

1/26/10           Yoon Taek Im v. Park
Appellate Division, Second Department
Deposition Testimony May Cure Defects in Expert’s Report
The defendants established that the plaintiff had sustained injuries to his cervical and lumbar spine in a prior accident.  As the plaintiff’s chiropractor did not address the injuries from the prior accident, the court found his conclusions relating the injuries to the subject accident speculative.  However, during his deposition and in an affidavit, the plaintiff testified that he was healthy before the subject accident and had no prior injuries to his neck or back.  In further testified that he suffered an injury to his left knee in the subject accident and there was no evidence that he injured his left knee in the prior accident.  As such, the trial court should not have dismissed the complaint.

1/26/10           Moore v. Waheed
Appellate Division, Second Department
Once Again, Claims in Bill of Particular Must Be Specifically Addressed
Here the defendants failed to meet their burden because they did not address the plaintiff’s claim, which was set forth in his BOP, under the 90/180-day category.  The well-known consequence is that, in such a case, the court will not even consider whether or not the plaintiff’s opposing papers are sufficient.

1/26/10           Bleszcz v. Hiscock
Appellate Division, Second Department
Permanent Consequential and Significant Limitation of Use Categories Require Findings Contemporaneous with Accident
On appeal, the defendants won a reversal of the trial court’s decision for numerous reasons, including the plaintiff’s submission of uncertified records, failure to submit competent medical evidence to support her 90/180-day claim, and the failure of one of her experts to present objective evidence of the extent of limitations and the duration of alleged herniated or bulging discs.  However, particularly fatal to the plaintiff’s claims was the failure to submit any competent medical evidence of findings that were contemporaneous with the accident.  Therefore, although one of her treating physicians did not note significant range-of-motion limitations in her lumbar spine during a recent examination, that physician, nor her chiropractor, nor her physical therapist, offered any evidence that was contemporaneous, thus failing to raise a triable issue of fact.

1/19/10           Pacheco v. Conners
Appellate Division, Second Department
Injury That Affects Ability to Roller or Ice Skate Does Not “Substantially” Impact All Activities of Daily Living
Unless one is a professional skater, which does not appear was the case here where the plaintiff testified at her deposition that she stopped working as a part-time baby sitter because of the accident.  She did not, however, testify that she was prevented from engaging in substantially all her usual activities other than stating that her ability to roller and ice skate was affected.  Nor did she submit competent medical evidence to support her 90/180-day claim in opposition to the defendants’ motion.

1/19/10           Ali v. Torrella
Appellate Division, Second Department
Treating Physician Fails to Address Findings by Defendant’s Radiologist Rendering His Conclusion Regarding Causation Speculative
The plaintiff relied on the affirmation of his treating physician which only addressed the plaintiff’s alleged cervical and lumbar injuries, but not the alleged injuries to his right knee and shoulder, thus failing to raise a triable issue with respect to the knee and shoulder.  In addition, the physician’s conclusions regarding causation were rendered speculative with regard to the alleged cervical and lumbar injuries because he failed to address the findings of the defendants’ radiologist of degeneration.

1/19/10           Belafrikh v. Tarzan Cab Corp.
Appellate Division, Second Department
Defendants Fail to Address 90/180-Day Claim Set Forth in Bill of Particulars
In August 2006, the plaintiffs (Belafrikh, Tika and Targhalli) were passengers in a taxi owned by Tarzan Cab and driven by Islam (the appellants), which collided with a car driven by defendant Artis and owned by defendant Robinson (the nonappealing defendants).  The nonappealing defendants moved, and the appealing defendants cross-moved for summary judgment and the trial court denied both.

On appeal, the court searched the record and granted both motions as to Targhalli, With respect to Belafrikh and Tika, however, the court affirmed the trial court because the defendants failed to address the 90/180-day claims set forth in the bills of particulars of those two plaintiffs. 

1/19/10           Belarge v. Kardas
Appellate Division, Second Department
Report That Fails to Quantify or Qualify ROM Limitations Fails to Show Limitations Are Insignificant
Here it was the defendant’s orthopedic surgeon who failed to compare his findings of lumbar ROM restrictions with what would be considered normal lumbar ROM.  As his report was not sufficiently quantified or qualified so as to establish that the noted limitation was not significant, the defendant failed to meet his burden, which means that we do not even consider the sufficiency of the plaintiff’s opposing papers.

1/19/10           Diorio v. Butler
Appellate Division, Second Department
Report That Fails to Compare Limitations with Norm Does Not Support That Limitations Are Mild or Minor
The defendants’ examining hand surgeon noted ROM limitations and concluded that the accident aggravated a preexisting arthritic condition in the plaintiff’s right thumb.  He did not, however, compare the noted limitations with what would be normal ROM.  His report, therefore, did not establish that the decreased ROM was so mild or minor as to be insignificant, and, as result, the defendants’ motion failed.

1/19/10           Haber v. Ullah
Appellate Division, Second Department
Doctor’s Medical Submissions Must Be Affirmed
In opposition to the defendants’ motion, the plaintiff relied on unaffirmed submissions, did not explain the cessation in his treatment after 2004, and failed to submit competent medical evidence in support of his 90/180-day claim, all of which resulted in a reversal and dismissal of the complaint.

1/19/10           Iovino v. Scholl
Appellate Division, Second Department
Findings That Accident Exacerbated Preexisting Conditions Are Speculative Where Prior Accident Is Not Addressed
The plaintiff’s submissions in opposition to the motion failed to address the findings of the defendant’s radiologist that the condition of the plaintiff’s cervical and lumbar spines was due to preexisting degeneration, not the accident.  In addition, the affirmed report of the plaintiff’s orthopedic surgeon did not acknowledge that the plaintiff had been in as least one other prior accident.  This failure rendered entirely speculative any opinion that the accident exacerbated the preexisting cervical disc herniations and caused permanent cervical radiculopathy. 

1/19/10           Knopf v. Sinetar
Appellate Division, Second Department
Affirmation Tailored to Meet Statutory Requirements and Which Relies Solely on Subjective Complaints Is Insufficient
In support of her 90/180-day claim, the plaintiff relied principally on the affirmation of her treating neurologist and her medical reports.  Although the neurologist noted restricted ROM in the plaintiff’s neck, she did not set forth what, if any, objective testing she performed in reaching her conclusion.  Nor did she quantify limitations nor set forth a qualitative assessment of the “audible clicking” in the plaintiff’s jaw.  The court finds that the affirmation and medical records were based solely on the plaintiff’s subjective complaints, that the affirmation was tailored specifically to meet the statutory requirements, and that there was no objective medical evidence that the plaintiff was in any way limited.

1/19/10           Lennard v. Khan
Appellate Division, Second Department
Untimely Motion Brought on “Nearly Identical” Grounds as Timely Motion May Properly Be Considered
The court had ordered the plaintiff to undergo an IME and therefore extended the time to make summary judgment motions.  One group of defendants (the “Khan” defendants) moved within the court’s deadline, but the other group (the “Prescod” defendants) did not.  The court first noted that the Khan defendants’ motion was timely because it was served on the plaintiff four days within the deadline, even though it was not filed with the court until two weeks later.  It is the service, not the filing that marks when the motion is made. 

With regard to the Prescod motion, it was served three days after the court’s deadline, and filed over a month later.  Not to worry.  Where the late motion is based on “nearly identical” grounds as the timely one, the court may properly consider it.  In addition, the plaintiff opposed both motions as untimely, but did not address the merits.  The Appellate Court determined that, because the Khan motion was properly before the court, the trial court “improvidently exercised its discretion in refusing to consider the separate motion of Prescod” and should have searched the record and dismissed as to both defendants.

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

1/28/10           Applicant v. GEICO Ins. Co.
Erie County, Arbitrator Kent L. Benzinger
Improper Information Provided to EIP Is Reasonable Justification for Not Appearing for IME
The Applicant, eligible injured person (“EIP”), was involved in an August 8, 2007, motor vehicle accident with her claim being denied for failure to appear for scheduled IMEs.  The insurer scheduled the EIP for an IME on December 8, 2007, for which she failed to appear.  Another IME was scheduled for January 10, 2008, for which she failed to appear.

The EIP argued that she had a reasonable justification for not complying was with regard to the second scheduled IME she was advised by the third party vendor that it was on January 11, 2008.  The EIP did appear on January 11th as she was advised.  Further, her counsel contacted the insurer immediately after the denial was issued to ascertain the basis for it.

The assigned arbitrator considered this a reasonable justification for not appearing.

1/25/10           Cichocki & Cichocki, LLP v. Preferred Mut. Ins. Co.
Erie County, Arbitrator Thomas J. McCorry
Failure to Causally Relate or Even Mention MVA to Support Chiropractic Care for Some 10 Years Fatal to Claim
Applicant’s 19 year old assignor was involved in an October 14, 1998, motor vehicle accident and came under his chiropractic care for some 10 years (Yes, I said 10 years).  The insurer denied the chiropractic care as not medically necessary based upon the IME of Louis Marconi, D.C.  The Applicant’s post hearing submission, after the insurer pointed out that it failed to submit any records from 2005 through 2008, failed to submit any opinion that mentioned a motor vehicle accident occurred and that treatment was causally related to it.  Accordingly, the insurer’s denials were upheld.

Litigation

1/29/10           WJJ Acupuncture a/a/o Mendel Davidovich v. Liberty Mutual Fire Ins. Co.
Appellate Term, Second Department
Failure to Have Affiant’s Signature on Affidavit Fatal to Summary Judgment Motion
Plaintiff’s summary judgment was properly denied for failure to establish its prima facie case.  The plaintiff failed to submit an affidavit with the signature of the purported affiant.  Therefore, the affidavit was not admissible and plaintiff failed to establish its prima facie case.

1/29/10           Park Slope Med. and Surg. Supply, Inc. a/a/o Benny Sciubba v. Chubb Group of Ins.
Appellate Term, Second Department
Insurer Again Fails to Demonstrate Failure to Appear for IMEs
Summary judgment was properly granted to plaintiff as the insurer failed to establish that the assignor failed to attend scheduled IMEs.

1/29/10           All Borough Group Med. Supply, Inc. a/a/o Kevin Ricketts v. Travelers Ins. Co.
Appellate Term, Second Department
Insurer’s Proof Sufficient for Summary Judgment
The insurer’s cross-motion for summary judgment was properly granted as it demonstrated that its denials were timely mailed and denied based upon lack of medical necessity. 

1/28/10           B.Y., MD., P.C. et. al. a/a/o Isay Binyaminov v. Progressive Cas. Ins. Co.
Appellate Term, Second Department
Plaintiff’s Failure to Rebut Independent Physician’s Conclusions Insufficient to Raise Issue of Fact
Partial summary judgment to the insurer was properly granted as the plaintiff failed to properly rebut the motion.  The plaintiff submitted an affirmation from a doctor who treated the assignor which was missing at least one page.  Further, the remainder of the affirmation failed to meaningfully discuss or even refer to the independent physician’s and chiropractor’s determination.

1/26/10           St. Vincent’s Hosp. & Med. Ctr. a/a/o Jane Fritz v. Allstate Ins. Co.
Appellate Division, Second Department
Insurer Not Precluded From Arguing Lack of Coverage Because Denial Not Issued Timely
The insurer’s cross-motion for summary judgment should have been granted as the insurer is not precluded from raising and establishing a prima face case of lack of insurance coverage.  In other words, the 30 day rule does not apply to the lack of coverage defense.

1/12/10           Amercure Acupuncture a/a/o Taylor Franklin v. GEICO Ins. Co.
Appellate Term, Second Department
Court Searched Record and Granted Insurer SJ as Bill Paid at Correct Fee
The court searched the record and granted summary judgment to the insurer.  The insurer had created an issue of fact precluding plaintiff’s summary judgment motion.  However, it was undisputed that the insurer paid the acupuncture bill at the correct fee schedule for a chiropractor.  Therefore, summary judgment in the insurer’s favor was appropriate.

1/12/10           Canarsie Family Med. Practice a/a/o Keneth Bacchus v. American Transit Ins. Co.
Appellate Term, Second Department
Insurer’s Partial SJ Motion Should Have Been Granted for Plaintiff’s Failure to Rebut
Partial summary judgment was properly granted to plaintiff as the insurer failed to demonstrate the assignor did not appear for scheduled IMEs.  Likewise, partial summary judgment should have been granted to the insurer as the plaintiff failed to rebut the insurer’s assertion that its denials were timely issued and based upon lack of medical necessity.

1/12/10           Metropolitan Med. Supplies, LLC v. GEICO Ins. Co.
Appellate Term, Second Department
Insurer’s Affidavit and Peer Review Create Issue of Fact Precluding Summary Judgment
Summary judgment denied to plaintiff as the insurer’s affidavits sufficiently established the timely mailing of the NF-10 and the peer review report was also sufficient to rebut plaintiff’s prima facie case.

1/12/10           Quality Rehab and P.T. a/a/o Ana Serano v. GEICO Ins. Co.
Appellate Term, Second Department
Plaintiff’s Action Premature Due to Outstanding Verification
Plaintiff’s action was premature as the insurer established there was a timely issued outstanding verification request.  The plaintiff failed to establish that it provided the requested verification prior to commencing the action. 

1/12/10           Raz Acupuncture a/a/o Miledis Vargas v. Travelers Property Cas. Ins. Co.
Appellate Term, Second Department
Plaintiff’s Affidavit Insufficient to Establish Prima Facie Case
Summary judgment was not appropriate as to plaintiff since the affidavit from the employee of a third-party billing company was insufficient to demonstrate office business practice and procedure regarding mailing.


PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper

[email protected]


1/28/10           Green v. Combined Life Ins. Co. of New York
Appellate Division, First Department
Statements of Physician in Confidential Medical Report Cannot Give Rise to Claim for Defamation
Plaintiff Green commenced this action seeking recovery for defamation as a result of statements made by defendant Downie in a confidential medical report.  Because the statements complained of were part of a medical report, they enjoyed a qualified privilege with the defendant insurer. 

As such, plaintiff could only proceed with this claim by establishing that the statements were made with malice.  Here, plaintiff was unable to meet this burden and his case was dismissed accordingly.

1/26/10                       Parnell v. Mareddy
Appellate Division, Second Department
Single Family Home Exception in Labor Law Protects Defendant Homeowner
Plaintiff allegedly sustained injury when he fell through an open stairwell at the construction of defendant’s home.  Because the home was built as a single family home, and because the defendant Mareddy did not direct or control the work, plaintiff’s claims sounding in Labor Law § 240(1), Labor Law § 241(6) and Labor Law § 200/Common Law Negligence were dismissed accordingly

1/26/10           Chacha v. Glickenhaus Doynow Sutton Farm Development, LLC
Appellate Division, Second Department
Plaintiff’s Motion Under Labor Law § 240(1) Is Denied Where Plaintiff Could Not Establish That His Injuries Were Proximately Caused by Defendants’ Failure to Provide Adequate Protection
Plaintiff commenced this action after sustaining injury while in the course of his employment in the construction of a new home.  At the time of the incident giving rise to his injury, plaintiff was working on the second floor, approximately four feet from a drop-off of 10 to 15 feet.  Plaintiff was knocked from the second floor when a piece of sheathing was picked up by a gust of wind, and blown into him.

Plaintiff was able to demonstrate that he was not provided with an adequate safety device to protect him from the dangers of working at an elevated jobsite.  However, because plaintiff could not establish that being hit by air-born sheathing was a foreseeable consequence of the defendant’s failure to provide a safety device, his motion for summary judgment was denied. 


FIJAL’S FEDERAL FOCUS
Katherine A. Fijal

[email protected] 

2/1/10NGM Insurance Company v. Blakely Pumping, Inc.
United States Court of Appeals for the Second Circuit
When Is A Policy Definition An Exclusion?
This case arises from an automobile accident involving Brian Blakely, an officer and employee of Blakely Pumping.  The accident occurred when Mr. Blakely was driving his truck while in the course of his work for Blakely Pumping.

NGM issued a policy of insurance to Blakely Pumping.  The policy contained an endorsement that covered liability arising out of the use of a “Hired Auto” or a “Non-Owned Auto”.  The terms were defined in the policy so as to not include an auto owned by an executive officer or employee of Blakely Pumping.

The question presented to the Second Circuit was whether these definitions were exclusions of coverage thereby, requiring NGM to comply with the terms of New York Insurance Law §3420(d)(2).

On March 18, 2006, Blakely Pumping requested that NGM defend the action under its Businessowners Liability Coverage.  The policy covered liability for personal injuries but contained an exclusion that expressly disclaimed covered for damages “arising out of the ownership, maintenance, use or entrustment to others of any . . . auto . . . owned or operated by or rented or loaned to any insured.”  The policy, however, also contained an endorsement that modified the policy and extended coverage to bodily injury arising from the use of a “Hired Auto” or a “Non-Owned Auto” by the company or one of its employees.

On March 23, 2006, NGM disclaimed based on the policy’s exclusion for autos.  In a letter dated July 24, 2006, counsel for the injured party called NGM’s attention to the Endorsement’s extension of coverage for bodily injuries arising out of the use of a ‘Hired Auto” or “Non-Owned Auto”.  Two weeks later NGM disclaimed coverage, this time on the ground that Blakely was an executive officer of Blakely Pumping and therefore his pickup truck was neither a “Hired Auto” nor a “Non-Owned Auto” as defined in the Endorsement.

In July 2007, NGM filed a declaratory judgment action against Mr. Blakely, Blakely Pumping and the injured party.  After motions for summary judgment were filed the District Court held that NGM was obligated to defend and indemnify Blakely Pumping. Although the court concluded that Blakely Pumping had borrowed the auto of one of its officers and that the accident was therefore not covered under the terms of the policy as modified by the Endorsement, the court found that the second disclaimer was untimely under Insurance Law §3420(d).  The District Court took the position that since the Endorsement “generally covered auto accidents,” the definitions of “Hired Auto” and “Non-Owned Auto” constituted exclusions of that general coverage.  The District Court concluded that NGM was required to provide written notice that it was disclaiming coverage on the ground that Blakely’s pickup truck was neither a “Hired Auto” nor “Non-Owned Auto” but because NGM originally disclaimed coverage pursuant to the Policy’s exclusion for autos, it had waived its right to disclaim coverage on other grounds.  Therefore, the second disclaimer was ineffective and NGM could not rely on those exclusions.

In reversing the District Court’s decision, the Second Circuit determined that the Endorsement did not generally cover auto accidents; it only covered accidents arising from the use of a “Hired Auto” or “Non-Owned Auto”.  Those terms were defined in the NGM policy in such a way that an employee’s or officer’s vehicle, like Blakely’s pickup truck, could never be covered.  The Second Circuit noted that this was not a case where the happening of a subsequent event implicated a definitional terms that “uncovered” a formerly covered car.  Rather, it is a case in which the policy as written could not have covered the liability in question under any circumstances.  In short there was no coverage by reason of lack of inclusion -- no notice of disclaimer was required.  Citing, Zappone v. Home Ins. Co., 55 N.Y.2d 132 (1982). 

EARL’S PEARLS
Earl K. Cantwell

[email protected]

 

Limitation of Liability Clause
Sends Plaintiff’s Case Down The Drain

In RSN Properties, Inc. v. Engineering Consulting Services, Ltd., 2009 WL 3807153 (Georgia Appeals 11/19/09), an Appellate Court in Georgia held that a limitation of liability clause in a geotechnical engineer’s contract with a developer which limited the engineer’s liability to the contract price of $2,200 or $50,000, whichever was greater, did not violate statute or public policy.

The developer of a residential subdivision hired the engineering firm to determine the suitability of using septic systems.  The contract contained a limitation of liability clause which stated that the engineer’s total aggregate liability to the developer would not exceed $50,000, or the value of the services rendered (the contract price of $2,200), whichever is greater.

The engineering firm opined that most of the lots could use septic systems.  The County, however, did not approve building many of the lots on grounds they were not suitable for septic tank use.  The developer sued the engineer for breach of contract and negligence seeking $100,000 in damages.  The trial court granted the engineer’s motion for partial summary judgment based on the contract clause, and the Appellate Court affirmed.

The Appellate Court ruled that the limitation of liability clause did not violate public policy, and no Georgia statute apparently prohibited such an agreement.  Nor did the clause violate any rules of professional conduct or ethics applicable to engineers. 

The court viewed the limitation of liability clause as a reasonable allocation of risk in an arm’s length business transaction in which the parties recognized that the fee for the service might be small compared to the substantial liability which could arise from an error or mistake in providing the professional services.  The court added, significantly, that the clause did not excuse the engineer completely from professional negligence since there remained a sufficiently sizable potential liability of up to $50,000 to provide both the client a remedy and the engineer an incentive to act with reasonable care.

This case emphasizes the importance of limitations of liability and similar clauses in contracts prepared and entered into by design professionals.  Review also must be done of any applicable state statutes that may limit or prohibit such clauses.  Accordingly, choice of law and forum provisions may also be important, drafted and read in conjunction with any such limitations of liability provision.


ACROSS BORDERS


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

1/28/10           Penzer v. Transportation Insurance Company
An Advertising Injury Provision in a Commercial Liability Policy That Provides Coverage for “Oral or Written Publication of Material That Violates a Person’s Right of Privacy” Provides Coverage for Fax-Blasting in Violation of the TCPA
Supreme Court of Florida
Michael Penzer filed a class action suit in a Florida state court against Nextel South Corporation alleging that Nextel or one of its agents sent him an unsolicited fax advertisement in violation of the TCPA. Nextel filed a third-party complaint against Sunbelt, a blast-fax advertiser, and Southeast Wireless, an authorized agent of Nextel, seeking indemnity and contributions for any liability Nextel may have in the class action. Nextel also alleged that Southeast Wireless hired Sunbelt to create the advertisement and that Nextel did not authorize fax transmissions. Penzer filed a third-party complaint against Southeast Wireless, and Southeast Wireless requested that Transportation Insurance Company, its commercial liability insurer, defend it in the class action. Transportation refused to provide a defense for the class action suit or the Nextel complaint, and also disclaimed any coverage on various grounds. In April 2004, Penzer entered into a settlement agreement with Southeast Wireless in which Penzer agreed to release Southeast Wireless from any liability, and Southeast Wireless consented to a judgment and assigned its right to seek insurance coverage from Transportation to Penzer. The settlement was approved and certified a settlement class. Penzer then pursued a declaratory judgment against Transportation in federal court wherein Transportation defended that based upon the language of the policy, Transportation had no obligation to defend or indemnify Southeast Wireless. The insurance policy provided coverage for advertising injuries. The federal district court found that Transportation did not have a duty to indemnify the plaintiffs for Southeast’s violations of the TCPA. It ruled that the policy language was not ambiguous and that advertising injury coverage under the provision existed only when the content of the material published violated a person’s right to privacy. Penzer appealed the federal district court’s decision to the Eleventh Circuit which concluded that neither the policy exclusions nor Florida public policy lead to denial of coverage. The Eleventh Circuit also found that the disposition of the case rested on an unsettled issue of Florida law and that a pure legal question of the interpretation of widely used language in commercial liability insurance was at issue. The Eleventh Circuit certified the question to the Florida Supreme Court. The Eleventh Circuit stated that none of the policy exclusions prevented coverage and concluded that Transportation had not met its burden to prove that coverage was inapplicable under any of the policy exclusions or other defenses. The Supreme Court of Florida held that in interpreting insurance contracts, they are construed according to their plain meaning, with any ambiguities construed against the insurer and in favor of coverage. The Court found that the policy provision provided coverage for a written publication of material that violated a person’s right of privacy. There was a written dissemination of 24,000 faxes that violated the TCPA. Comparing the policy’s language to the facts of the case, the Court found that there was a written publication [dissemination] of material [24,000 faxes] that violated a person’s right of privacy [that violated the TCPA]. Applying the plain meaning analysis, the Court held that Transportation’s insurance policy provided coverage for sending unsolicited fax advertisements in violation of the TCPA. Essentially, the Court found that an advertising injury provision in a commercial liability policy that provides coverage for an “oral or written publication of material that violates a person’s right of privacy” provides coverage for fax-blasting in violation of the TCPA. The certified question was answered in the affirmative.
Submitted by: Amy Kempfert and Jeffrey Hensley, Best & Sharp, P.C


REPORTED DECISIONS

Town of Fort Ann v. Liberty Mutual Insurance Company


Calendar Date: December 16, 2009
Before: Peters, J.P., Rose, Lahtinen, Kavanagh and Garry, JJ.

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis
& Fishlinger, Uniondale (Avis Spencer Decaire of counsel), for
appellants-respondents.
Taylor & Associates, Albany (David R. Taylor of
counsel), for Liberty Mutual Insurance Company, respondent-
appellant.
Carter, Conboy, Case, Blackmore, Maloney & Laird,
P.C., Albany (Leah W. Casey of counsel), for Kubricky
Construction Corporation, respondent-appellant.
Melito & Adolfsen, P.C., New York City (S. Dwight
Stephens of counsel), for Steadfast Insurance Company,
respondent-appellant.
MEMORANDUM AND ORDER
Lahtinen, J.
Cross appeals from an order of the Supreme Court (Egan Jr., J.), entered May 7, 2009 in Albany County, which, among other things, partially granted plaintiffs' motion for summary judgment and denied certain defendants' cross motions for summary judgment dismissing the complaint against them.
This action involves a dispute over insurance coverage that arose following the failure, on July 2, 2005, of the Hadlock Pond dam, which is owned by plaintiff Town of Fort Ann and had been reconstructed during 2004 and 2005 by defendant Kubricky Construction Corporation. As relevant here, the Town had entered into two contracts, one with Heynan Teale Engineers for engineering services related to the dam project, and another with Kubricky to do the reconstruction work. After the dam's failure, numerous lawsuits ensued in which the Town was one of the defendants (see Alaimo v Town of Fort Ann, 63 AD3d 1481 [2009]). The Town and its insurer, plaintiff New York Municipal Insurance Reciprocal, sought defense and indemnification from defendant Steadfast Insurance Company (the insurer of Heynan) and defendant Liberty Mutual Insurance Company (the insurer of Kubricky). Steadfast Insurance and Liberty Mutual both disclaimed any obligation to the Town asserting, among other things, that the Town did not qualify as an "additional insured" under the terms of the respective policies.
Plaintiffs commenced this declaratory judgment action and, following disclosure, moved for summary judgment. Relief sought by plaintiffs included an order declaring, among other things, that Liberty Mutual must defend and indemnify the Town, that Steadfast Insurance must defend and indemnify the Town, and that Kubricky breached its contractual obligation to procure insurance coverage for the Town. Liberty Mutual, Steadfast Insurance and Kubricky all made separate cross motions for summary judgment dismissing the complaint. Supreme Court granted plaintiffs' motion to the extent of finding that Steadfast Insurance was obligated to defend the Town in the underlying property damage actions, but, finding factual issues, the court otherwise denied plaintiffs' motion and further denied the cross motions. Plaintiffs appealed and Liberty Mutual, Steadfast Insurance and Kubricky all cross-appealed.
We consider first the Town's argument that it sufficiently established that Liberty Mutual has a duty under the general commercial liability policy issued to Kubricky to defend the Town as an additional insured with respect to the underlying property damage actions. We note that the Town has narrowed its argument on appeal to only the duty to defend. Although the Town was not expressly named as an additional insured, it asserts that it falls within a category of entities defined under the terms of the policy as an additional insured (see 9 Couch on Insurance 3d § 126:7). The Town had the burden to establish such coverage (see Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208, 218 [2002]; National Abatement Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 33 AD3d 570, 570-571 [2006]).
Kubricky's policy with Liberty Mutual extended additional insured status to an entity when Kubricky's written contract to provide work for the entity required such coverage. The written contract between Kubricky and the Town required Kubricky to maintain such insurance until the Town accepted the completed project. Liberty Mutual nevertheless urges that the Town's additional insured coverage had ceased since the policy provided that such coverage remained in effect only so long as Kubricky had ongoing operations at the project.
The term "ongoing operations" is interpreted broadly in New York (see generally Wausau Underwriters Ins. Co. v Cincinnati Ins. Co., 198 Fed Appx 148, 150 [2d Cir 2006]; Liberty Mut. Fire Ins. Co. v E.E. Cruz & Co., 475 F Supp 2d 400, 411 [SD NY 2007]). Work may be considered as ongoing during a short lapse of time necessary to conduct tests designed to assure proper performance where such testing is an essential element of the work by the insured (see Perez v New York City Hous. Auth., 302 AD2d 222, 222 [2003]; cf. 9A Couch on Insurance 3d § 129:24). While major construction by Kubricky had ended one to two months before the dam's failure, inspection of the project by the engineer, which was required before Kubricky's work was considered completed under the contract, had not yet occurred. In light of the nature of the project, such inspection was not merely a minor after-the-fact detail. We find that the Town adequately established that it was an additional insured for purposes of the broad duty to defend. The exclusions in the policy urged as applicable by Liberty Mutual, which must be construed narrowly, do not vitiate Liberty Mutual's expansive obligation to provide a defense (see generally Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131, 137 [2006]).
Next, we consider the Town's breach of contract cause of action against Kubricky in which it asserted that Kubricky failed to obtain a "protective liability insurance" policy for the Town. Supreme Court denied the Town's motion for summary judgment regarding such a breach and also denied Kubricky's cross motion for summary judgment dismissing this aspect of the Town's claim. Each party contends on appeal that its motion should have been granted. We cannot agree. Since the full amount of protection provided to the Town under Kubricky's policy with Liberty Mutual is unresolved (only the duty to defend is decided herein), it is premature to decide either party's motion on this issue.
We turn to Steadfast Insurance's argument that Supreme Court erred in granting the Town summary judgment declaring that it had a duty to defend the Town under the terms of the policy it had issued to Heynan. The policy provided that a client of Heynan would be an additional insured when "required by written contract executed and effective before the performance of 'your work' or 'covered operations.'" The written contract between Heynan and the Town, which was executed before Heynan's work on the project commenced, stated that "[c]ertificates of insurance will be furnished upon request naming the Town of Fort Ann . . . as additional insured." The Town did not request the certificate of insurance until well after the dam had failed.
So long as a clear written intent to include an entity as an additional insured is manifested prior to the loss, the fact that certificates of insurance are not issued until after the loss does not compel the conclusion that such entity is not an additional insured (see United States Fid. & Guar. Co. v Shorenstein Realty Servs., LP, 591 F Supp 2d 966, 968-969 [ND Ill 2008]; Atofina Petrochemicals, Inc. v Continental Cas. Co., 49 Tex Sup Ct J 225 185 SW3d 440, 443-444 [2005]; 3 Couch on Insurance 3d § 40:29). Applying rules for construing contracts (see National Abatement Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 33 AD3d at 571), we observe that the underlying contract, which had been drafted by Heynan, addresses the full extent of insurance coverage in just one paragraph, three sentences in length. The fact that Heynan agreed in the contract that it was prepared to supply certificates of insurance upon request reflects a clear intent to include the Town as an additional insured in Heynan's work on the dam project. The status of the Town as an additional insured is not made contingent upon the request for a certificate of insurance. We agree with Supreme Court that, under these circumstances, Steadfast Insurance has a duty to defend the Town.
We have considered the remaining arguments, most of which Supreme Court addressed at length in its thorough decision, and we find those arguments unavailing.
Peters, J.P., Rose, Kavanagh and Garry, JJ., concur.
ORDERED that the order is modified, on the law, without costs, by declaring that defendant Liberty Mutual Insurance Company has a duty to defend plaintiff Town of Fort Ann in the underlying property damage action, and, as so modified, affirmed.
Bleszcz v. Hiscock


Richard T. Lau, Jericho, N.Y. (Joseph G. Gallo of counsel), for
appellant.
Bergman, Bergman, Goldberg & Lamonsoff, LLP, Mineola,
N.Y. (Allen Goldberg of counsel), for
respondent.

DECISION & ORDER
In an action, inter alia, to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Spinola, J.), dated May 13, 2009, which denied her motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.
The defendant met her prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact.
The plaintiff's hospital records were uncertified and therefore failed to raise a triable issue of fact (see Singh v Mohamed, 54 AD3d 933; Mejia v DeRose, 35 AD3d 407). The affirmations of Dr. Ernesto Capulong, one of the plaintiff's treating physicians, were also insufficient to raise a triable issue of fact. While Dr. Capulong noted significant limitations in the range of motion of the plaintiff's lumbar spine on a recent examination of her, neither he nor the plaintiff proffered competent medical evidence that revealed the existence of significant limitations in her lumbar spine that were contemporaneous with the subject accident (see Taylor v Flaherty, 65 AD3d 1328; Fung v Uddin, 60 AD3d 992; Gould v Ombrellino, 57 AD3d 608; Kuchero v Tabachnikov, 54 AD3d 729; Ferraro v Ridge Car Serv., 49 AD3d 498). Thus, the plaintiff did not raise a triable issue of fact as to whether she sustained a serious injury under the permanent consequential limitation of use or the significant limitation of use category of Insurance Law § 5102(d) (see Taylor v Flaherty, 65 AD3d 1328; Ferraro v Ridge Car Serv., 49 AD3d 498). The records of Dr. Joe Rufrano, of Southside Chiropractic, and those of SECO Physical Therapy, were not contemporaneous with the subject accident.
The affirmation of Dr. Jeffrey Drucker, with an annexed magnetic resonance imaging report, merely revealed the existence of herniated and bulging discs in the plaintiff's lumbar spine. The mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury, as well as its duration (see Chanda v Varughese, 67 AD3d 947; Niles v Lam Pakie Ho, 61 AD3d 657; Sealy v Riteway-1, Inc., 54 AD3d 1018; Kilakos v Mascera, 53 AD3d 527; Kearse v New York City Tr. Auth., 16 AD3d 45, 49). The plaintiff's affidavit was insufficient to raise a triable issue of fact (see Rabolt v Park, 50 AD3d 995; Young Soo Lee v Troia, 41 AD3d 469; Nannarone v Ott, 41 AD3d 441).
Finally, the plaintiff failed to submit competent medical evidence that the injuries allegedly sustained by her in the subject accident rendered her unable to perform substantially all of her usual and customary daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Sainte-Aime v Ho, 274 AD2d 569). In this regard, the plaintiff admitted in her deposition testimony that she missed only one day from work as a result of the subject accident.
Moore v. Waheed


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellants.
Leav & Steinberg, LLP, New York, N.Y. (Daniela F.
Henriques of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Mohammad Waheed and Tamara Taxi, Inc., appeal from an order of the Supreme Court, Kings County (Miller, J.), dated April 8, 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 affirmed, with costs.
The defendants Mohammad Waheed and Tamara Taxi, Inc., failed to meet 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). The defendants did not address the plaintiff's claim, clearly set forth in his bill of particulars, that he sustained a medically-determined injury or impairment of a non-permanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Menezes v Khan, 67 AD3d 654; Negassi v Royle, 65 AD3d 1311; Alvarez v Dematas, 65 AD3d 598; Ismail v Tejeda, 65 AD3d 518). Accordingly, we need not consider the sufficiency of the papers submitted by the plaintiff in opposition to the motion (see Corbett v Yobris Enters., 67 AD3d 955).


Yoon Taek Im v. Park


Nicolini, Paradise, Ferretti & Sabella, Mineola, N.Y. (John J.
Darcy of counsel), for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Elliot, J.), entered November 12, 2008, which granted the defendants' 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 on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is denied.
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). However, in opposition, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury to the cervical and lumbar regions of his spine, and his left knee, under the significant limitation or permanent consequential limitation of use category of Insurance Law § 5102(d) as a result of the subject accident (see Mela v Gentile, 306 AD2d 388).
The defendants submitted evidence tending to show that the plaintiff sustained injuries to the cervical and lumbar regions of his spine as a result of a prior automobile accident. The Supreme Court determined that the conclusion of the plaintiff's treating chiropractor that the plaintiff sustained certain injuries to those regions of his spine as a result of the subject accident was speculative because the chiropractor did not address the plaintiff's alleged injuries from a prior accident (see Sforza v Big Guy Leasing Corp., 51 AD3d 659, 661; cf. Joseph v A & H Livery, 58 AD3d 688, 688-689; Bennett v Genas, 27 AD3d 601, 601-602). However, there is an issue of fact as to whether the plaintiff, who testified at his deposition that he "was a healthy man before the [subject] accident," and recounted in an affidavit that he "had no prior injuries to [his] neck [and] back," injured those regions of his spine as a result of the prior accident. Furthermore, the plaintiff alleged that he suffered a tear in the posterior horn of the medial meniscus of his left knee as a result of the subject accident, and there is no evidence tending to show that he sustained an injury to his left knee as a result of the prior accident. Accordingly, under these circumstances, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.

Ali v. Torrella


DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Partnow, J.), dated April 7, 2009, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating 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. Contrary to the plaintiff's contention, the affirmation of his treating physician, Dr. Soe Nyunt, was insufficient to raise a triable issue of fact. Dr. Nyunt only addressed the plaintiff's alleged cervical and lumbar spine injuries, and did not address any other claimed area of injury. Thus, Dr. Nyunt's affirmation failed to raise a triable issue of fact as to whether the plaintiff sustained a serious injury to his right shoulder or right knee as a result of the subject accident. With regard to the plaintiff's alleged cervical and lumbar spine injuries, Dr. Nyunt concluded that the deficiencies in the plaintiff's range of motion were the result of the subject accident. However, this conclusion was rendered speculative in light of the fact that Dr. Nyunt failed to address the findings of degeneration in the plaintiff's cervical and lumbar spine by the defendants' radiologist (see Ferebee v Sheika, 58 AD3d 675; Cornelius v Cintas Corp., 50 AD3d 1085; Marrache v Akron Taxi Corp., 50 AD3d 973; Giraldo v Mandanici, 24 AD3d 419).


Belafrikh v. Tarzan Cab Corp.


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Robert D. Grace of counsel), for appellants.
Grover & Fensterstock, P.C., New York, N.Y. (Simon B.
Landsberg of counsel), for plaintiffs-
respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Tarzan Cab Corp. and Mohammed S. Islam appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated January 28, 2009, as denied those branches of their cross motion which were for summary judgment dismissing the complaint insofar as asserted against them by the plaintiffs Mounia Belafrikh, Khadija Tika, and Imane Targhalli on the ground that none of those plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the cross motion of the defendants Tarzan Cab Corp. and Mohammed S. Islam which was for summary judgment dismissing the complaint insofar as asserted against them by the plaintiff Imane Targhalli on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and, upon searching the record, so much of the order as denied that branch of the motion of the defendants Larry W. Artis and Damali K. Robinson which was for summary judgment dismissing the complaint insofar as asserted against them by the plaintiff Imane Targhalli on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is vacated, and summary judgment is awarded in favor of those defendants dismissing the complaint insofar as asserted against them by the plaintiff Imane Targhalli.
This action arises out of a collision that occurred on August 10, 2006, on West 28th Street in Manhattan between a taxicab driven by the defendant Mohammed S. Islam and owned by the defendant Tarzan Cab Corp. (hereinafter the appellants), and an automobile driven by the defendant Larry W. Artis and owned by the defendant Damali K. Robinson (hereinafter the nonappealing defendants). The plaintiffs were passengers in the taxicab. After discovery was completed, the nonappealing defendants moved and the appellants cross-moved, inter alia, for summary judgment dismissing the complaint on the ground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The Supreme Court denied the motion and the cross motion, and this appeal is from so much of the order as denied the appellants' motion with respect to plaintiffs Mounia Belafrikh, Khadija Tika, and Imane Targhalli. We modify, grant that branch of the appellants' motion which was addressed to Targhalli and, upon searching the record, we also grant that branch of the nonappealing defendants' motion which was addressed to that plaintiff.
Contrary to the appellants' contentions, they failed to establish, prima facie, that Belafrikh and Tika did not sustain serious injuries 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 particular, their motion papers failed to adequately address the claims of those plaintiffs, clearly set forth in their bills of particulars, that they sustained medically determined injuries or impairment of a nonpermanent nature that prevented them from performing substantially all of the material acts which constituted their usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Alvarez v Dematas, 65 AD3d 598, 599; Rahman v Sarpaz, 62 AD3d 979, 979-980).
With respect to Targhalli, however, the appellants met their prima facie burden. The appellants' submissions established, prima facie, that Targhalli did not sustain a serious injury as a result of the subject accident under any of the subdivisions of Insurance Law § 5102(d) that she cited in her bill of particulars (see Taylor v Flaherty, 65 AD3d 1328; Conder v City of New York, 62 AD3d 743, 743-744; Helmsley v Ventura, 50 AD3d 1097, 1098). In opposition, Targhalli failed to raise a triable issue of fact (see Spence v Mikelberg, 66 AD3d 765; Taylor v Flaherty, 65 AD3d 1328; Norton v Roder, 65 AD3d 1317; Ciancio v Nolan, 65 AD3d 1273).
The nonappealing defendants also established their entitlement to judgment as a matter of law with respect to Targhalli. Although their motion was denied, and they declined to appeal, we exercise our authority to search the record and award summary judgment to them, inasmuch as the issue of whether Targhalli sustained a serious injury was addressed in their motion before the Supreme Court (see Rivera v Bushwick Ridgewood Prop., Inc., 63 AD3d 712, 714; Garcia v Lopez, 59 AD3d 593, 594-595).
Belarge v. Kardas


Joshua Annenberg, New York, N.Y. (Mead, Hecht, Conklin &
Gallagher of counsel), for appellant.
Hanson & Fishbein, Albany, N.Y. (Richard J. Fishbein of
counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Dutchess County (Pagones, J.), dated September 17, 2008, as granted the motion of the defendant Mark Kardas for summary judgment dismissing the complaint insofar as asserted against him 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 the motion of the defendant Mark Kardas for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is denied.
Contrary to the Supreme Court's determination, the defendant Mark Kardas (hereinafter the respondent) failed to meet his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of his motion, the respondent relied on, inter alia, the affirmed medical report of Dr. Marc Bergeron, the orthopedic surgeon who examined the plaintiff on February 16, 2007. In that report Dr. Bergeron noted a limitation in the plaintiff's lumbar spine range of motion which was not sufficiently quantified or qualified to establish the absence of a significant limitation of motion (see Letts v Bleichner, 56 AD3d 619; Kaminsky v Waldner, 19 AD3d 370). Since the respondent failed to meet his prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Kaminsky v Waldner, 19 AD3d 370; Coscia v 938 Trading Corp., 283 AD2d 538).

Diorio v. Butler


Becker & D'Agostino, P.C., New York, N.Y. (Michael D'Agostino
of counsel), for appellant.
Gallo Vitucci & Klar, New York, N.Y. (Kimberly A. Ricciardi
of counsel), for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), entered November 12, 2008, as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the defendants' motion which was 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 denied, and the matter is remitted to the Supreme Court, Nassau County, for a determination of that branch of the defendants' motion which was for summary judgment dismissing the complaint on the ground that they were not at fault in the happening of the accident.
Contrary to the Supreme Court's determination, the defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury to her right hand 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). The affirmed medical report of the defendants' examining hand surgeon concluded that the subject accident aggravated a pre-existing arthritic condition in the plaintiff's right thumb, and noted limitations in her range of motion. However, the hand surgeon failed to compare the limitations he observed to what would be considered a normal range of motion, and his report thus was insufficient to establish that the decreased range of motion in the plaintiff's right thumb was so mild, minor, or slight as to be considered insignificant within the meaning of the no-fault statute (see Moore v Stasi, 62 AD3d 764, 765; Marshak v Migliore, 60 AD3d 647, 648; Webb v Keyspan Corp., 56 AD3d 464, 465; Gaccione v Krebs, 53 AD3d 524, 525; Giammanco v Valerio, 47 AD3d 674, 675).
Since the defendants failed to satisfy their initial burden on their motion, it is unnecessary to consider whether the plaintiff's papers in opposition were sufficient to raise a triable issue of fact (see Moore v Stasi, 62 AD3d at 765; Marshak v Migliore, 60 AD3d at 648; Webb v Keyspan Corp., 56 AD3d at 464).
In light of our determination, we remit the matter to the Supreme Court, Nassau County, to determine that branch of the defendants' motion which was for summary judgment dismissing the complaint on the ground that they were not at fault in the happening of the accident.
Haber v. Ullah


The Sullivan Law Firm, New York, N.Y. (Timothy M. Sullivan of
counsel), for appellants.
Sekas & Associates LLC, New York, N.Y. (Robert G. Ricco 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 (Saitta, J.), entered May 14, 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., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957; see also Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50). In opposition, the plaintiff failed to raise a triable issue of fact. The medical submissions of Dr. Donald M. Kastenbaum were insufficient to raise a triable issue of fact since they were unaffirmed (see Grasso v Angerami, 79 NY2d 813; Uribe-Zapata v Capallan, 54 AD3d 936; Choi Ping Wong v Innocent, 54 AD3d 384; 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). Moreover, the plaintiff failed to adequately explain the cessation of his medical treatment after 2004 (see Pommels v Perez, 4 NY3d 566; Shaji v City of New Rochelle, 66 AD3d 760; Ciancio v Nolan, 65 AD3d 1273). Furthermore, 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; Sainte-Aime v Ho, 274 AD2d 569).
Iovino v. Scholl


Weiss & Rosenbloom, P.C., New York, N.Y. (Andrea Krugman
Tessler and Barry D. Weiss of counsel), for appellant.
Epstein, Frankini & Grammatico, Woodbury, N.Y. (Michele A.
Musarra of counsel), for third-party
defendant-respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Weiss, J.), dated September 10, 2008, as granted that branch of the third-party defendant's motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed insofar as appealed from, with costs payable by the appellant to the third-party defendant.
The third-party defendant, Carmine Iovino, met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-967).
In opposition to the motion, the plaintiff failed to raise a triable issue of fact. Of the submissions which were in admissible evidentiary form, the affirmed medical reports of John Vlattos, M.D., and Panagiotis Zenetos, M.D., as well as chiropractor Angelo Ippolito, were insufficient to raise a triable issue of fact because they did not address the finding of the third-party defendant's radiologist that the condition of the plaintiff's cervical and lumbar spines was the result of preexisting degeneration and was not caused by the subject accident (see Shmerkovitch v Sitar Corp., 61 AD3d 843; Pamphile v Bastien, 61 AD3d 659, 660; Levine v Deposits Only, Inc., 58 AD3d 697, 698; Marrache v Akron Taxi Corp., 50 AD3d 973, 974). Furthermore, the affirmed medical report of orthopedic surgeon Dr. Enrico Fazzi failed to acknowledge that the plaintiff had been involved in at least one prior automobile accident. In light of this omission, Dr. Fazzi's findings that the subject accident exacerbated the plaintiff's preexisting cervical disc herniations and caused permanent cervical radiculopathy, are speculative (see Vickers v Francis, 63 AD3d 1150, 1151; Su Gil Yun v Barber, 63 AD3d 1140, 1142; Donadino v Doukhnych, 55 AD3d 532, 533; Rabolt v Park, 50 AD3d 995, 996).
The plaintiff also failed to submit competent medical evidence that the injuries she allegedly sustained in the subject accident rendered her unable to perform substantially all of her usual and customary activities for not less than 90 days of the first 180 days subsequent to the accident (see Shmerkovitch v Sitar Corp., 61 AD3d at 844; Roman v Fast Lane Care Serv., Inc., 46 AD3d 535, 536; Sainte-Aime v Ho, 274 AD2d 569).
Knopf v. Sinetar


Alan W. Clark & Associates, LLC, Levittown, N.Y. (Brandon Clark
of counsel), for appellant.
Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck, N.Y.
(Elizabeth M. Hecht of counsel), for
respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Diamond, J.), entered December 11, 2008, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and (2) a judgment of the same court entered January 28, 2009, which, upon the order, is in favor of the defendant and against her dismissing the complaint.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).
The Supreme Court correctly determined that the defendant, in support of her motion for summary judgment, met her prima facie burden by showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, a determination with which the plaintiff does not take issue on appeal.
In opposition to that showing, however, and contrary to her contentions, the plaintiff failed to raise a triable issue of fact. On appeal, the plaintiff asserts that her submissions in opposition to the defendant's motion were sufficient to raise a triable issue of fact as to whether she sustained a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (hereinafter the 90/180 category). In support of that argument, the plaintiff principally relies on the affirmation of her treating neurologist, as well as her medical reports. Those submissions failed to raise a triable issue of fact as to whether the plaintiff sustained a serious injury within the ambit of the 90/180 category. Initially, while the plaintiff's treating neurologist stated that she examined the plaintiff on January 5, 2007, and noted at that time that the plaintiff had "restricted" range of motion in her neck, she failed to set forth any objective testing she did in order to reach that conclusion (see Spence v Mikelberg, 66 AD3d 765; Sapienza v Ruggiero, 57 AD3d 643; Budhram v Ogunmoyin, 53 AD3d 640, 641; Piperis v Wan, 49 AD3d 840, 841). Furthermore, while the neurologist also noted that, upon testing on that date, the plaintiff had an "audible clicking" in her jaw, the neurologist failed to forth any quantified limitations concerning the plaintiff's jaw, nor did she set forth any qualitative assessment of the plaintiff's jaw (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350; Giannini v Cruz, 67 AD3d 638; Taylor v Flaherty, 65 AD3d 1328; Barnett v Smith, 64 AD3d 669, 671; Shtesl v Kokoros, 56 AD3d 544, 546). The neurologist's affirmation and medical reports rely solely on the plaintiff's subjective complaints of pain (see Dantini v Cuffie, 59 AD3d 490; Ranzie v Abdul-Massih, 28 AD3d 447; Picott v Lewis, 26 AD3d 319), and her affirmation was clearly tailored to meet the statutory requirements (see Picott v Lewis, 26 AD3d 319; Marte v New York City Tr. Auth., 253 AD2d 519). Indeed, the plaintiff's treating neurologist fails to show, via objective medical evidence, in either her affirmation or her reports, that the plaintiff was limited in any capacity.
The evidence contained in the magnetic resonance imaging report of the plaintiff's cervical spine failed to raise a triable issue of fact, since the mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury, as well as its duration (see Chanda v Varughese, 67 AD3d 947; Niles v Lam Pakie Ho, 61 AD3d 657; Sealy v Riteway-1, Inc., 54 AD3d 1018; Kilakos v Mascera, 53 AD3d 527; Kearse v New York City Tr. Auth., 16 AD3d 45, 49). Such evidence was lacking in this case.
Lennard v. Khan


Law Offices of Wale Mosaku, P.C., Brooklyn, N.Y., for plaintiff-
appellant-respondent.
Martyn, Toher & Martyn, Mineola, N.Y. (Christine J. Hill of
counsel), for defendants-appellants.
Theodore A. Stamas, Carle Place, N.Y. (Ira Cooper of counsel),
for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated April 2, 2009, as granted the motion of the defendants Fazal Khan and Ace Towing, LLC, for summary judgment dismissing the complaint insofar as asserted against them on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and the defendants Keith O. Prescod, Jr., and Desiree Klass cross-appeal, as limited by their brief, from so much of the same order as denied, as untimely, their separate motion for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is reversed insofar as cross-appealed from by the defendants Keith O. Prescod, Jr., and Desiree Klass, on the law, on the facts, and in the exercise of discretion, and the motion of those defendants for summary judgment dismissing the complaint insofar as asserted against them is granted; and it is further,
ORDERED that the order is affirmed insofar as appealed from by the plaintiff; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
In early 2007 the plaintiff commenced this action to recover damages for personal injuries allegedly sustained as the result of an automobile accident. On November 13, 2008, the Supreme Court issued an order requiring the plaintiff to undergo an independent medical examination within 30 days of the order, and extending the time, in effect, to make summary judgment motions to 60 days from the date of the independent medical examination, "but no later than [January 27, 2009] whichever is sooner." The plaintiff's independent medical examination occurred on December 4, 2008, thus requiring submission of any summary judgment motions by January 27, 2009, the earliest of the possible deadlines.
By notice of motion dated January 22, 2009, the defendants Fazal Khan and Ace Towing, LLC (hereinafter the respondents), moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The respondents served the plaintiff's counsel with the summary judgment motion on January 23, 2009, and filed the motion with the court on February 11, 2009.
The defendants Keith O. Prescod, Jr., and Desiree Klass separately moved for the same relief. They served the plaintiff's counsel with their motion papers on January 30, 2009, and filed them with the court on March 2, 2009.
In support of their respective motions, the movants established their respective prima facie entitlements to judgment as a matter of law on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The plaintiff opposed both motions on the ground that they were untimely, but did not address the movants' arguments that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d). In reply, the respondents argued that their motion was timely under CPLR 2211 because it had been served on the plaintiff's counsel within the time period allotted. In an order dated April 2, 2009, the Supreme Court granted the respondents' motion as timely and since it was unopposed on the merits. The court also denied the separate motion of Prescod and Klass as untimely. These appeals ensued.
"A motion on notice is made when a notice of the motion or an order to show cause is served" (CPLR 2211; see Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 561). Given that the respondents' motion was served on the plaintiff's counsel by mail on January 23, 2009, four days before the January 27, 2009, deadline, the Supreme Court correctly concluded that the respondents' motion was timely.
Where one party makes a timely summary judgment motion, the court may properly consider an untimely summary judgment motion, provided the late motion is based on "nearly identical" grounds as the timely motion (Perfito v Einhorn, 62 AD3d 846, 847 [internal quotation marks omitted]; see Step-Murphy, LLC v B & B Bros. Real Estate Corp., 60 AD3d 841, 844-845; Ianello v O'Connor, 58 AD3d 684; Grande v Peteroy, 39 AD3d 590, 591-592; Miranda v Devlin, 260 AD2d 451, 452). In effect, the "nearly identical" nature of the grounds supporting both motions serves as good cause sufficient to permit review on the merits of the untimely motion (Grande v Peteroy, 39 AD3d at 592). "Notably, the court, in the course of deciding the timely motion, is, in any event, empowered to search the record and award summary judgment to a nonmoving party" (see CPLR 3212[b]; Grande v Peteroy, 39 AD3d at 592).
Since the respondents' motion was already properly before the court, it improvidently exercised its discretion in refusing to consider the separate motion of Prescod and Klass, made on identical grounds, on the ground that the separate motion was untimely made (see Joyner-Pack v Sykes, 54 AD3d 727; Grande v Peteroy, 39 AD3d at 591; Miranda v Devlin, 260 AD2d 451). Further, since the plaintiff did not challenge the movants' contentions regarding serious injury, the separate motion should have been granted.
Pacheco v. Conners


Klein & Folchetti, Port Chester, N.Y. (Robert W. Folchetti of
counsel), for appellant.
Abamont & Associates (Congdon, Flaherty, O'Callaghan, Reid,
Donlon, Travis & Fishlinger,
Uniondale, N.Y. [Gregory A. Cascino], of
counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Smith, J.), entered June 3, 2008, as granted that branch of the defendant's motion which was for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident by submitting a physician's report and the plaintiff's deposition testimony (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957; Kivlan v Acevedo, 17 AD3d 321). Specifically, the plaintiff testified at her deposition that she stopped working as a part-time babysitter as a result of the accident, but she did not testify that her injuries substantially impacted on all of her activities of daily living, except to the extent that it affected her ability to roller skate and ice skate. In opposition to the defendant's prima facie showing, the plaintiff failed to raise a triable issue of fact. The plaintiff did not submit competent evidence to support a claim that she was unable to perform substantially all of her daily activities for not less than 90 days of the first 180 days immediately following the accident due to a medically-determined injury or impairment (see Farozes v Kamran, 22 AD3d 458).

Sampson v. Vinlo Cab Corp.


Harold Chetrick, P.C., New York (Harold Chetrick of counsel),
for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for respondents.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered February 25, 2009, which granted defendants' motion for summary judgment dismissing the complaint for lack of a serious injury, unanimously modified, on the law, the motion denied and the complaint reinstated only to the extent of the 90/180 claim, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered July 27, 2009, which denied plaintiff's motion to renew the motion for summary judgment, unanimously dismissed, without costs, as academic in view of the foregoing.
The reports of defendants' experts based on examinations performed more than three years after the subject accident and addressed only to the permanency of plaintiff's injuries fail to make a prima facie showing that plaintiff did not sustain a 90/180 injury (see Loesburg v Jovanovic, 264 AD2d 301 [1999]; Alexandre v Dweck, 44 AD3d 597 [2007]). Nor did defendants submit any other evidence, such as deposition testimony, tending to show that plaintiff did not sustain such an injury. However, with respect to plaintiff's claims of permanent and significant limitations, her experts failed to sufficiently respond to defendant's evidence and hence Supreme Court properly granted summary judgment on those claims.
Chacha v Glickenhaus Doynow Sutton Farm Development, LLC


Trolman, Glaser & Lichtman, P.C., New York, N.Y. (Michael T.
Altman of counsel), for appellant.
Penino & Moynihan, LLP, White Plains, N.Y. (Patrick J.
Moynihan and Vinai C. Vinlander of
counsel), for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nicolai, J.), entered April 24, 2009, which denied his motion for summary judgment on the issue of liability on so much of the second cause of action as alleged a violation of Labor Law § 240(1).
ORDERED that the order is affirmed, with costs.
On the morning of March 6, 2007, in Chappaqua, the plaintiff, a carpenter, was nailing a plywood board to the floor joists of the first floor of a residence under construction. He was working less than 4 feet from the unprotected edge of the first floor, which was approximately 10 to 15 feet above a dirt floor. A stack of plywood boards, each eight feet by four feet by 3/4 inch in size, was placed nearby. While the plaintiff was bent over and nailing the plywood board to the joists, a strong gust of wind allegedly blew the top board of plywood off the nearby stack, striking the plaintiff in the arm and knocking him over the edge of the first floor and onto the dirt floor below. The plaintiff fell face down and sustained injuries, including a fractured skull and a fractured right arm.
The plaintiff established that the defendants violated Labor Law § 240(1) by failing to provide him with an adequate safety device while he worked on an elevated job site (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287; Gordon v Eastern Ry. Supply, 82 NY2d 555, 561-562). However, the plaintiff failed to establish, as a matter of law, that his accident was a foreseeable consequence of the defendants' failure to provide him with an adequate safety device, rather than the result of an unforeseeable, independent, intervening act that attenuated the defendants' failure to provide him with an adequate safety device (see Gordon v Eastern Ry. Supply, 82 NY2d at 562; Mejia v African M. E. Allen Church, 271 AD2d 583, 584; Tzambazis v Argo Mgt. Co., 230 AD2d 843; Zeitner v Herbmax Sharon Assoc., 194 AD2d 414; cf. Williams v 520 Madison Partnership, 38 AD3d 464, 466-467; Cosban v New York City Tr. Auth., 227 AD2d 160, 161). Accordingly, the plaintiff failed to establish that the defendants' violation of Labor Law § 240(1) proximately caused his injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d at 287; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513; Zimmer v Chemung CountyPerforming Arts, 65 NY2d 513, 523).
Since the plaintiff did not meet his initial burden, we need not consider the sufficiency of the defendants' opposition (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
Green v Combined Life Insurance Co. of New York


Weiss & Hiller, PC, New York (Michael S. Hiller and Lauren
Rudick of counsel), for appellant.
White Fleischner & Fino, LLP, New York (Evan A. Richman
of counsel), for respondents.
Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered February 13, 2008, which granted defendants' motion to dismiss the second cause of action, unanimously affirmed, with costs.
Plaintiff alleges he was defamed by defendant Downie's written report to the insurer defendants of his interview with and examination of plaintiff. Even if defamatory, the statements are protected by a qualified privilege because they were made in a medical report to the insurer (see Gould v Broad, 22 AD2d 800 [1964], affd 16 NY2d 666 [1965]). Plaintiff's conclusory allegations of malice are insufficient to overcome the privilege (see Ferguson v Sherman Sq. Realty Corp., 30 AD3d 288 [2006]).
Parnell v Babureddy Mareddy


Breen & Clancy, Hauppauge, N.Y. (Anne Marie Caradonna of
counsel), for appellants.
Bruce Egert, Richmond Hill, N.Y., for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendants Babureddy Mareddy and Jyothis Babureddy appeal from an order of the Supreme Court, Nassau County (Iannacci, J.), dated June 4, 2009, which denied their renewed motion for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is reversed, on the law, with costs, and the renewed motion of the defendants Babureddy Mareddy and Jyothis Babureddy for summary judgment dismissing the complaint insofar as asserted against them is granted.
The defendant Babureddy Mareddy hired P & M Builders (hereinafter P & M) to demolish a home Mareddy owned with his wife, the defendant Jyothis Babureddy (hereinafter together the homeowners), and to erect a new home on the site. The plaintiff Michael Parnell, a carpenter working on the second floor of the home, was injured when he stepped, lost his balance, and fell into an open stairwell.
The injured plaintiff, and his wife, derivatively, commenced this action against the homeowners and P & M. The complaint asserted, inter alia, a cause of action alleging violations of Labor Law §§ 200, 240(1), 241(6), and 241-a.
The homeowners moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court found that triable issues of fact existed as to whether the homeowners directed or controlled the work being performed on the home and, accordingly, denied the motion. We reverse.
The homeowners made a prima facie showing of entitlement to judgment as a matter of law by offering sufficient evidence to demonstrate the absence of any triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557). To receive the protection of the homeowners' exemption, a homeowner has to satisfy two prongs required by the statutes (see Chowdhury v Rodriguez, 57 AD3d 121, 126). First, a homeowner has to show that the work was conducted at a dwelling that is a residence for only one or two families (see Labor Law §§ 240[1]; 241[6]; Chowdhury v Rodriguez, 57 AD3d at 126). Here, it is undisputed that the work was performed at the homeowners' one-family dwelling. "The second requirement of the homeowners' exemption is that the homeowners not direct or control the work'" (Chowdhury v Rodriguez, 57 AD3d at 126-127, quoting Labor Law §§ 240[1]; 241[6]). This inquiry focuses on whether the homeowners supervised the methods and manner of the work (see Chowdhury v Rodriguez, 57 AD3d at 127; Ortega v Puccia, 57 AD3d 54). The evidence submitted by the homeowners here demonstrated as a matter of law that the homeowners did not direct or control the work (see Labor Law §§ 240[1]; 241[6]; Chowdhury v Rodriguez, 57 AD3d at 126-127; Arama v Fruchter, 39 AD3d 678, 679; Ferrero v Best Modular Homes, Inc., 33 AD3d 847, 849-850; Garcia v Petrakis, 306 AD2d 315, 316; Tilton v Gould, 303 AD2d 491, 491-492). In response, the plaintiffs failed to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557). Thus, the homeowners were entitled to summary judgment dismissing those causes of action which alleged violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against them. Moreover, the Court of Appeals has held that the homeowners' exemption from liability under Labor Law §§ 240(1) and 241(6) applies to Labor Law § 241-a (see Khela v Neiger, 85 NY2d 333, 337). Thus, the homeowners were entitled to summary judgment dismissing the cause of action which alleged a violation of Labor Law § 241-a insofar as asserted against them.
Finally, the homeowners were entitled to summary judgment dismissing the cause of action which alleged a violation of Labor Law § 200 insofar as asserted against them (see Ortega v Puccia, 57 AD3d at 62-63; Arama v Fruchter, 39 AD3d at 679; Ferrero v Best Modular Homes, Inc., 33 AD3d at 850-851).
RIVERA, J.P., DILLON, BELEN and ROMAN, JJ., concur.
Howard v. Espinosa


Calendar Date: December 15, 2009
Before: Mercure, J.P., Spain, Malone Jr., Stein and McCarthy, JJ.

Poklemba & Hobbs, L.L.C., Malta (Gary C. Hobbs of
counsel), for appellants.
Kenney, Shelton, Liptak & Nowak, Buffalo (Ryon D.
Fleming of counsel), for respondents.
MEMORANDUM AND ORDER
Spain, J.
Appeals (1) from an order of the Supreme Court (Krogmann, J.), entered August 8, 2008 in Warren County, which granted defendants' motion for summary judgment dismissing the complaint, and (2) from an order of said court, entered December 31, 2008, which, upon reargument, adhered to its prior order.
After the automobile he was driving was struck from behind by another vehicle on May 23, 2005, plaintiff John V. Howard (hereinafter plaintiff) and his wife, derivatively, commenced this action alleging serious injuries as defined in Insurance Law § 5102 (d). Defendants successfully moved for summary judgment, and said order was adhered to upon reargument. On plaintiffs' appeals, we now affirm.
On a motion for summary judgment dismissing a complaint that alleges a serious injury under Insurance Law § 5102 (d), the defendant bears the initial "burden of establishing by competent medical evidence that plaintiff did not sustain a serious injury caused by the accident" (Haddadnia v Saville, 29 AD3d 1211, 1211 [2006]; see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002]). "Upon such a showing, the burden then shifts to the plaintiff to submit objective medical evidence sufficient to raise a triable issue of fact regarding the existence of a serious injury" (Nowak v Breen, 55 AD3d 1186, 1187 [2008] [citations omitted]).
Here, Supreme Court properly found that defendants satisfied their initial burden by submitting proof that plaintiff did not suffer a serious injury as a result of the 2005 accident. No dispute exists that plaintiff — 76 years old at the time of the accident — has a significant medical history, including prior injuries to his back and neck caused by a 1952 automobile accident. Plaintiff's preexisting condition was described by his wife in a 2004 application for Veteran's Administration disability benefits, where she stated that plaintiff was "unable to walk more than 100 feet without pain[, t]hus restricting normal daily activities such as gardening, lawn care, and shopping." Immediately following the 2005 accident, plaintiff drove himself to the hospital, where a CT scan was performed that showed "mild degenerative changes" throughout plaintiff's cervical spine. Plaintiff was diagnosed with cervical strain, given a prescription for pain medication and discharged. In support of their motion, defendants also provided the report of an independent medical examination obtained in April 2008, conducted by physician Bryan Bilfield. Bilfield stated that plaintiff's 2005 postaccident MRI was essentially the same as an MRI taken in 2002. Although the later MRI showed a new slight disk protrusion at C-7, T-1, Bilfield opined that there was no evidence that the protrusion was caused by the 2005 motor vehicle accident as opposed to the "natural progression" of plaintiff's long-standing cervical spondylosis.
This proof was sufficient to sustain defendants' burden of demonstrating a lack of serious injury, under any category, attributable to the 2005 accident (see Monk v Dupuis, 287 AD2d 187, 189 [2001]; Blanchard v Wilcox, 283 AD2d 821, 822 [2001]). Indeed, plaintiffs do not dispute the fact that defendants met their initial burden on their motion for summary judgment except with respect to the 90/180-day serious injury category (see Insurance Law § 5102 [d]). In that regard, plaintiffs argue that because Bilfield did not address the extent of plaintiff's functional limitations within 180 days of the accident, defendants did not demonstrate a lack of serious injury under that category. To the contrary, a 90/180-day serious injury requires both objective evidence of a medically determined injury or impairment causally related to the accident, as well as proof that such impairment prevented the plaintiff from performing substantially all of his regular activities for the requisite period of time (see Toure v Avis Rent A Car Sys., 98 NY2d at 357; Talcott v Zurenda, 48 AD3d 989, 990 [2008]). Here, by offering evidence that plaintiff did not sustain any serious injury as a result of the 2005 accident, defendants met their burden under all categories. Further, through the signed statement of plaintiff's wife, defendants also offered prima facie proof that the claimed restrictions on plaintiff's activities predated the 2005 accident.
The issue thus distills to whether plaintiffs' submissions in opposition to the motion raise a triable issue of fact as to the existence of any serious injury related to the 2005 accident (see Lee v Laird, 66 AD3d 1302, 1303 [2009]). With respect to both the permanent consequential limitation and significant limitation categories, Supreme Court correctly concluded that plaintiff failed to submit any medical "quantitative or qualitative assessment to differentiate serious injuries from mild or moderate ones" (Clements v Lasher, 15 AD3d 712, 713 [2005]; see Paton v Weltman, 23 AD3d 895, 897 [2005]; John v Engel, 2 AD3d 1027, 1029 [2003]). Plaintiffs submitted the affidavit of a physical therapist, Steven Bassin, and rely on an independent medical examination conducted in December 2005 by physician Robert Sellig, both of whom reported limitations on plaintiff's range of motion. Sellig also diagnosed plaintiff with preexisting cervical spondylosis, noted the new bulge at C-7, T-1 and opined that plaintiff's condition was aggravated by the May 2005 accident. Plaintiff also relies on his own description of the physical limitations he experienced following the accident.
As Supreme Court noted, however, the limitations on plaintiff's range of motion as reported by Sellig, which are comparable to those reported by Bassin immediately following the accident, are nearly identical to those taken by the Department of Veterans Affairs approximately eight months prior to the accident in question [FN1] . Further, although Sellig opined that plaintiff's preexisting disease was aggravated by the 2005 accident, he does not compare plaintiff's current complaints or limitations with those preexisting the accident or otherwise specify what injuries were caused by the 2005 accident (see Nowak v Breen, 55 AD3d at 1188). Indeed, Sellig never opines either that the C-7, T-1 bulge was caused by the accident or whether and how it might relate to plaintiff's physical complaints (see June v Gonet, 298 AD2d 811, 812 [2002]). Evidence of the bulge alone, even if there were evidence of causation, would not be sufficient to sustain a claim of serious injury (see John v Engel, 2 AD3d at 1029).
To the extent that plaintiffs continue to rely on Bassin's conclusion that, despite the fact that plaintiff's loss of range of motion did not worsen immediately following the 2005 accident, it got progressively worse over the next two years and that this decline was causally related to the 2005 accident's aggravation of his preexisting spinal stenosis and arthritis, it is misplaced. As Supreme Court properly noted, a physical therapist "cannot by definition diagnose or make prognos[e]s and is incompetent to determine the permanency or duration of a physical limitation" (Delaney v Lewis, 256 AD2d 895, 897 [1998]; see Brandt-Miller v McArdle, 21 AD3d 1152, 1154-1155 [2005]; Tornatore v Haggerty, 307 AD2d 522, 522-523 [2003]). Thus, given the dearth of any competent medical evidence of any significant loss of use that could be correlated with injuries arising out of the 2005 accident and any comparison between plaintiff's limitations and his normal — albeit diseased — bodily function, Supreme Court correctly granted summary judgment in defendants' favor (see Felton v Kelly, 44 AD3d 1217, 1219 [2007]; Paton v Weltman, 23 AD3d at 897; Brandt-Miller v McArdle, 21 AD3d at 1154-1155).
Likewise, plaintiffs failed to raise a triable issue of fact that plaintiff suffered a serious injury under the 90/180-day category. As discussed, plaintiffs' medical submissions are devoid of any expert opinion based on objective findings linking the alleged curtailment of plaintiff's activities to an exacerbation of his preexisting injuries and are thus insufficient to meet plaintiffs' shifted burden as to the 90/180-day serious injury category (see Toure v Avis Rent A Car Sys., 98 NY2d at 357; Palmer v Moulton, 16 AD3d 933, 935 [2005]; Creech v Walker, 11 AD3d 856, 856 [2004]). Sellig noted that plaintiff reported minor limitations to his ability to drive or participate in his volunteer work, but did not opine as to what extent these limitations stemmed from the 2005 accident, as opposed to his preexisting condition (see Burford v Fabrizio, 8 AD3d 784, 786 [2004]; Dongelewic v Marcus, 6 AD3d 943, 944-945 [2004]; Blanchard v Wilcox, 283 AD2d at 823).
Footnotes

Footnote 1: Sellig found a range of motion in plaintiff's neck to be 30 degrees right/45 degrees left rotation, and 10 degrees of hyperextention and 30 degrees of flexion. Bassin noted limitations immediately following the accident of rotation 30 degrees/30 degrees, 20 degrees extension and 30 degrees flexion. According to Bassin's affidavit, measurements taken by the Department of Veterans Affairs prior to the accident show rotation at 45 degrees/30 degrees and lateral flexion of 20 degrees/20 degrees.

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