Coverage Pointers - Volume XI, No. 17

Dear Coverage Pointers Subscribers:

Another banner issue is attached, with our eclectic array of very interesting and important appellate decisions from the New York courts. From late notice cases, to garage liability, from late disclaimers, to additional insured, from farmers to firefighters, from first party to no fault and everything in between, this issue is chock full of counseling points and advice.

Collateral Source Rules Changes

In an earlier edition, we reported on the adoption of Section 5-335 of the General Obligations Law which changes the "collateral source" rules and substantially reduces health benefits providers' rights to reimbursement or subrogation.

We've received a lot of questions surrounding the new statute and we are working with insurers to assist them in developing training protocols in this arena. Contact the undersigned if you're interested in some help or insight into these new and important restrictions.

Medicare Secondary Payer

Nothing is garnering more chatter than the Medicare Secondary Payer obligations. Mike Perley is our point person and he has been on the road providing training and assistance to those implementing work plans. In this issue, he offers his second "Liening Tower of Perley" column on the subject. Mike can be reached at [email protected] if you are looking for help.

From Steve Peiper, Prince of Property (and, of course, Potpourri)

Greetings! Another full offering of property and potpourri comes your way. Although we are always surprised to see people challenge clear policy provisions, this issue offers yet another decision on the well settled two-year suit limitation in a homeowner's policy. In addition, we'd advise that you take an extra-close look at the Fourth Department's recent decision regarding non-party depositions.

Best wishes; see you again in two weeks and feel free to contact me at [email protected].

Steve

From Audrey Seeley, Queen of No Fault:

Thank you again to those who sent e-mails congratulating me on the Hurwitz Award.

This edition we have some decisions on lost wage claims, failure to appear for scheduled IMEs, and vacating default judgments. We try to bring you the good, the bad, and the ugly, leaving to you to decide which category they fall into.

Spring is, I think, around the corner. If you are in need of any Spring Training please send me an email and I would be happy to speak with you about your training needs - [email protected] with the phrase SPRING TRAINING in the re: line.

Audrey

Olympic Cancellation Insurance

In case you're wondering, reports have it that the Olympic Organizing Committee had purchased about $2.5 billion in Cancellation Insurance through the London Market for the Winter Games.

One Hundred Years Ago, an Insurance Dispute Rattled Wisconsin

Stevens Point (Wisconsin) Journal

February 19, 1910

P. 7, Col 2

INSURANCE CASE SETTLED

Alderman Frank Abb Secures Judgments

for $1,200 and Costs Against Father Hummel.

In the circuit court at Grand Rapids on Tuesday, judgment was rendered in favor of the plaintiffs in the two cases growing out of the settlement of the Estate of the late Father Abb of Green Bay. Father Abb, many years ago, took out two life insurance policies, one in the Catholic Order of Foresters for $1,000, payable to his brother, Frank Abb, of this city, and one in the Catholic Knights for $1,000 payable to several specified beneficiaries including, also Frank Abb, each beneficiary to receive $200. Before his death Father Abb also made a will and named Father Hummel of Green Bay as executor of his estate. Among other things, the will directed Father Hummel to "collect the insurance." This was construed by Father Hummel to mean that the money derived from the insurance was to be in the Estate and not paid to the beneficiaries. Suits became necessary to unravel the tangle but when the cases came up to court, the plaintiffs were permitted to take judgment.

Similar questions have been passed by the courts many times and it is well established that insurance money must be paid to the beneficiaries named in the policy regardless of wills or subsequent legal documents to the contrary. Old line companies will write policies payable to the estate of the insured but must fraternal orders insist on having specified beneficiaries named in the policy.

As a result of these suits, Mr. Abb took judgment for $1000 and interest and costs $72.42 in relation to the Foresters policy and $200 in case of the Knights. The interest and costs in the latter case amount to $63. The costs are charged against Father Hummel who will be reimbursed out of the estate. It should be stated that neither the Foresters nor the Knights were directly interested in these suits. They paid their money over to the court in due season, the disagreement lying wholly between the executor and the plaintiffs.

In This Week's Issue:

KOHANE'S COVERAGE CORNER
Dan D. Kohane

[email protected]

  • Court Considers Additional Insured Status and Almost Gets it Right
  • A "Short" Decision Provides An Important Counseling Point on New York Late Notice Rules
  • Fishing For Clarification of the Kipper Rule: The Battle Between "No Liability Clauses in Garage Policies and "Excess Clauses" in Family Auto Policies
  • Prosecution and Settlement of Uninsured Motorists Benefits Claim Does Not Necessarily Preclude Subsequent Action Against Responsible Tortfeasor: Subject To Subrogation Claims By UM Carrier
  • Notice Given Three Months After Being Placed on Notice of Action Is Untimely, Even Where Insured Expects to Pass Liability On To Another; Disclaimer Within Four Weeks of First Notice is Timely
  • Volunteer Firefighter Directing Traffic Was Neither Named Insured Under Policy Issue to Fire Company Nor Occupying A Vehicle
  • A Farm Vehicle Accident that Occurred on a Public Roadway Between Two Farm Properties Nine Miles Apart is Considered an On-Premises Accident
  • Both Contractual and Extra-Contractual Claims Dismissed Against Carrier
  • Insufficient Proof of Mailing of Disclaimer Sinks Carrier
  • Where Additional Insured Knew of Accident and Injury Contemporaneously With Happening of Accident and Completed In-House Accident Report, Failure to Report to Carrier is Breach of Contract

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

[email protected]

  • Persuasive Evidence of Preexisting Condition Requires Rebuttal
  • Work Loss of More Than 90 Days Is Not Determinative for 90/180-Day Claim
  • Insignificant ROM Findings One Month After Accident And No Qualitative or Quantitative Findings During Recent Exam Defeat Claim
  • Reports Noting "Full" or "Normal" ROM Are Not Sufficient
  • Photographs Refute Claim of "Significant Disfigurement"
  • Defendants' Fail to Address 90/180-Day Category Alleged in BOP
  • Defendants Again Fail to Address Claims Set Forth in BOP
  • MRI Report Based on Contemporaneous Testing, And Which Contains No Findings of Degenerative Condition, Is Sufficient
  • Affirmations That Do Not Set Forth Contemporaneous, Actual Range-of-Motion Findings And Compare to the Norm, Do Not Raise Issue of Fact
  • Findings in Examining Orthopedist's Report Precludes Summary Judgment
  • Treating Physician's Affirmation Is Enough to Raise Issue of Fact
  • Treating Chiropractor's Ideal Affidavit

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

ARBITRATION

  • Lost Wage Claim Properly Denied As Applicant Not Disabled From Operating Tractor-Trailer
  • Applicant Failed to Appear for Scheduled IMEs and Assignee Did Not Present Reasonable Justification for Noncompliance

LITIGATION

  • In Criminal Action Against Law Firm Convicted of Assisting Clients In Submitting Fraudulent No-Fault Claims, Intent to Defraud Not An Element of Penal Law §175.35
  • Insurer's Motion to Vacate Default Judgment Denied
  • Summary Judgment Denied to Plaintiff for Failing to Establish PF Case
  • Wage Continuation Plans - New Circular Letter

PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper

[email protected]

Of Property

  • When Time Is Not On Your Side: CanceledCanceledCanceledCanceledCanceledCanceledCanceledCanceledCanceledCanceledPolicy Is Cancelled for Late Payment of Premiums after Insured's Death
  • Two-Year Statute of Limitations in a Homeowners' Policy is Upheld, AGAIN!

And Potpourri

  • Counsel to Non-Party Witness Precluded From Objecting or Otherwise Participating in Pre-Trial Deposition
  • Non-Party Witness' Motion to Quash Granted Where Plaintiff's Subpoena was Deemed Irrelevant as to the Actions and Intent of the Defendants
  • Contractual Indemnity Clause Within Lease Agreement Voided by Operation of GOL § 5-321

FIJAL'S FEDERAL FOCUS
Katherine A. Fijal

[email protected]

  • When Does The Defective Workmanship Exclusion Apply?

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

Keep Your Eye on Alabama

EARL'S PEARLS
Earl K. Cantwell

[email protected]

Professional Liability Duty to Defend Gets Expansive Interpretation

Well, that's all for now. While you read this week's offerings, I'm going to dye my hair red, buy a snow board and head out for the half-pipe before it's too late to compete.

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]
Michael F. Perley
Katherine A. Fijal
Audrey A. Seeley
Steven E. Peiper
Margo M. Lagueras


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


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


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


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


KOHANE’S COVERAGE CORNER
Dan D. Kohane

[email protected]

2/18/10           Village of Brewster v. Virginia Surety Company
Appellate Division, Third Department
Court Considers Additional Insured Status and Almost Gets it Right


The Village contracted with Laws Construction (“Laws”) to build a new water distribution and collection system.  The contract provided that Laws would indemnify the Village for all claims for injury to property arising out of Laws' work and required Laws to maintain CGL coverage naming the Village an additional insured.
Laws obtained a CGL insurance policy from defendant Virginia Surety Company, Inc. (“Virginia”), which included an additional insured endorsement naming the Village as an additional insured, but "only with respect to liability arising out of [Laws'] work for [the Village]." The Village also had a CGL policy from the New York Municipal Insurance Reciprocal (“NYMIR”).
A water main broke and a resulting flood caused property damage to two village residents and they commenced an action against both the Village and Laws.  The Village tendered to Virginia and Laws seeking coverage and defense under the indemnity agreement. Defendant disclaimed coverage on the basis that Laws' operations did not cause or contribute to the property damages claimed in the underlying complaints and, therefore, any alleged loss did not arise out of Laws' work.
The Village and NYMIR, commenced this declaratory judgment action seeking a declaration that defendant was required to defend and indemnify the Village for any liability arising out of the underlying actions and that defendant must reimburse NYMIR for legal fees and costs incurred to date in defending the Village. Virginia argued that the Village was responsible for the maintenance and operation of the existing plant and that Laws had no responsibility to maintain the existing system. Virginia also argued that Laws only worked on the new system, which was void of water and 10 miles away from the site of the main break
The Third Department found that the allegations in the complaint were that Laws conduct caused the water main break and the resulting property damage and therefore, based on the allegations, Virginia had a duty to defend.  It could not present or rely upon extrinsic evidence, because the duty to defend existed, even if the allegations were groundless, false or fraudulent.  A determination on indemnity will come after the trial.
Relying upon uninvoked exclusions as a basis for denial, now, cannot form the basis for a favorable coverage decision because a carrier has an obligation to deny with specificity.  The court found that the insurer waived those defenses.
On the issue of priority, the other insurance clauses of the Virginia and NYMIR policies must be compared.  Since the NYMIR policy provided it would be excess over any policy where its insured is provided coverage by virtue of an additional insured endorsement, it sits in an excess provision to the Virginia policy.
Editor’s Note:  With one exception, this case seems appropriately decided.  The court did not recognize that the duty to deny coverage promptly (to avoid waiver of policy exclusions) applies only to bodily injury and wrongful death cases, and not property damage cases.  The court’s footnote posited that a “three-year delay in raising exclusions” is untimely as a matter of law (citing to two personal injury/wrongful death cases).  Section 3420(d) (2) of the Insurance Law the section that imposes the obligation to disclaim promptly, does not apply to property damage cases.  The court should have looked to see whether or not there was prejudice as a result of the late disclaimer.

2/11/10           Short v. Progressive Northwestern Ins. Co.
Appellate Division, Fourth Department
A “Short” Decision Provides An Important Counseling Point on New York Late Notice Rules
Short was driving a car owned by his girlfriend’s father when he had an accident injuring Sussman.  Short was also a named insured on a policy issued to his grandmother by Progressive.

Progressive alleged late notice on the part of both Short and Sussman and the Fourth Department held that there was factual questions that require a hearing on when, in fact Short gave notice and whether Sussman’s delay in giving notice was reasonable.
Editor’s Note: This case serves as a reminder about a peculiarity of the New York Insurance Law that out-of-state readers need to remember.  In New York, under Insurance Law Section 3420(a), an injured party has a statutory right to give notice of an accident to a liability carrier for the putative defendant.  If the injured party acts promptly to provide that notice (makes a prompt inquiry to determined the identity of the carrier, uses due diligence to give notice directly, etc.) any failure on the part of the insured to give notice is ignored by the courts.

Accordingly, if notice is given by the injured party and the insurer believes that notice is late, the insurer must so state in its disclaimer letter or it will waive its right to complain about that notice being late. 

Accordingly, in crafting NY disclaimer letters based on late notice, an insurer should refer not only to the insured’s breach of the insurance contract but, in addition, to the injured party’s failure to provide prompt notice as permitted under the Insurance Law. 

Progressive did that here, thus preserving its right to have the court rule on the issue. Had it not raised that ground in its disclaimer letter, the court would have ruled that Progressive had an obligation to defend and indemnify.

2/11/10           Progressive Casualty Ins. Co. v. Harco National Ins. Co. Appellate Division, Fourth Department
Fishing For Clarification of the The Kipper Rule: The Battle Between “No Liability Clauses in Garage Policies and “Excess Clauses” in Family Auto Policies
Webb’s car was being repaired by Burdick Pontiac (“Burdick”) and Burdick gave him a loaner vehicle.  Webb’s son, Justin, was driving the loaner when he collided with a car driven by Walker.  Walker sued Justiin and Burdick for injuries.

The loaner vehicle was insured under a Garage Liability Policy issued by Harco and the Webbs were insured under a family auto policy issued by Progressive.  The Harco policy had a “no liability clause.”  The “no liability clause,” common in garage policies, provided that a customer only has coverage under the garage policy if the customer "[h]as no other available insurance (whether primary, excess or contingent)" or "[h]as other available insurance (whether primary, excess or contingent) less than the compulsory or financial responsibility law limits where the covered auto' is principally garaged."
The Progressive policy contained an "excess" clause, which stated that any insurance provided for a vehicle, other than a covered vehicle, "will be excess over any other valid and collectible insurance."
In a battle over primacy of coverage, Progressive argued that there was other coverage available and thus its coverage was excess.  Harco argued that its “no liability” clause rendered its coverage inapplicable for the driver.
The appellate court agreed with Harco.  The Webb was excluded from the definition of “insured” because he had coverage through Progressive and it met, at least, the NY minimum limits.
The general rule that applies where one policy has a “no liability” clause and the other has an “excess” clause is that the “no liability” clause will not be given effect.  This has become affectionately known as the Kipper rule, based on a holding in Kipper v Universal Underwriters Group, 304 AD2d 62.  However, there is an exception to the Kipper rule which was applicable here. If the “no liability” clause provides that the garage policy will be inapplicable if there is other insurance and it specifically references "primary, excess or contingent insurance," then the Kipper rule, which would otherwise rendered the “no liability” clause null and void, is not applied and the “no liability clause” is given effect.
Progressive had two other creative, but unsuccessful arguments.  First, it argued that the “other insurance” clause in the Harco policy rendered the policy primary for owned vehicles.  The court rejected that argument, indicating that the clause was only triggered if the policy triggered coverage otherwise.  Since the “no liability” clause eliminated coverage, the “other insurance” clause was irrelevant.
The final argument was that Harco did not disclaim coverage promptly.  The court held that a prompt disclaimer was unnecessary where the policy did not provide coverage in the first place.
Editor’s Note:  There have been a flurry of questions lately on garage policies and the effect of “no liability” (or contingent) coverages.  This decision provides a good teaching tool on the issues raised. 


2/11/10           McHale v. Anthony
Appellate Division, First Department
Prosecution and Settlement of Uninsured Motorists Benefits Claim Does Not Necessarily Preclude Subsequent Action Against Responsible Tortfeasor: Subject To Subrogation Claims By UM Carrier
Accident occurred between McHale’s vehicle and a truck operated by Anthony and leased to Anthony’s employer, Empire Beef (“Empire”) by Ryder Truck.  Earlier, because Ryder has gone into bankruptcy and Ryder’s carrier, Frontier had gone into liquidation. McHale had filed a claim for uninsured motorist’s benefits with its own carrier, Liberty.  That claim was resolved for $725,000.  The court held that the settlement with Liberty does not preclude a subsequent action against Empire. Of course, Liberty would be subrogated to the extent of the $725,000 paid.
Editor’s Note:  The tortured history of this matter has been secured from previous appellate decisions.

2/11/10           Lehigh Construction Group, Inc. v. Lexington Ins. Co. Appellate Division, Fourth Department
Notice Given Three Months After Being Placed on Notice of Action Is Untimely, Even Where Insured Expects to Pass Liability On To Another; Disclaimer Within Four Weeks of First Notice is Timely
Sherk was injured in January 2004 when he fell from a height during the course of performing construction work on a church. Sherk's employer was a subcontractor to Lehigh and was performing construction and renovation services on the church. Three years later, in January 2007, Sherk commenced a Labor Law action against the owner and general contractor.  Lehigh was served through the Secretary of State on January 12, 2007 and received notice of such service by mail on February 23, 2007.

Plaintiff was an additional insured under a commercial general liability policy issued to Sherk’s employer by Lexington. Notice was not given to Lexington until April 17, 2007 (its first notice of the accident) and Lehigh waited until May 8, 2007 before it gave Lexington a copy of the complaint.
Lexington denied coverage on May 15, 2007 based on late notice.
Lehigh argued that it as a good faith belief in non-liability because it was only a “pass through” defendant. Plaintiff's assumption that other parties would bear the ultimate responsibility for Sherk's injuries is an insufficient excuse for failing to provide Lexington with timely notice of the fact that the underlying action had been commenced.  Moreover, since Lexington had to conduct an investigation, a disclaimer within four weeks of its first notice of Sherk's accident and the underlying action was timely.


2/11/10           Gallagher v. Republic Franklin Ins. Co.
Appellate Division, Fourth Department
Volunteer Firefighter Directing Traffic Was Neither Named Insured Under Policy Issue to Fire Company Nor Occupying A Vehicle
Plaintiff, a volunteer firefighter, sought underinsured motorist (SUM) benefits under a policy issued by Republic to the volunteer fire company.  The endorsement covered “you” (the volunteer fire company) and “any other person while occupying . . . [a] motor vehicle insured for SUM under this policy."

The term "occupying" is defined as "in, upon, entering into, or exiting from a motor vehicle." At the time of the accident the plaintiff was directing traffic away from the scene of a motor vehicle accident. The plaintiff was neither a named insured nor a person occupying the truck. His accident was "unrelated to the [truck]" and was not incidental to his exiting it.”

2/11/10           McLaughlin v. Midrox Insurance Company
Appellate Division, Fourth Department
A Farm Vehicle Accident that Occurred on a Public Roadway Between Two Farm Properties Nine Miles Apart is Considered an On-Premises Accident
A Farmowners Policy provided incidental auto coverage for on-premises accidents. The insured was operating a pickup truck off the insured premises when it collided with a motorcycle The incidental liability provisions of the policy covered liability for bodily injury and property damage that "occurs on the insured premises and results from the ownership, maintenance, use, loading or unloading of . . . motorized vehicles not subject to motor vehicle registration because of their type or use . . . ." Pursuant to the policy, the "[i]nsured premises" include the Blodgett defendants' main farm as identified in the "Described Location" section as well as "any premises used . . . in connection with the described location," the "approaches and access ways immediately adjoining the insured premises," and "other land [the insured] use[s] for farming purposes . . . "
The carrier contended that the policy did not cover an accident on a public roadway. The court holds that the various definitions of "insured premises" were "broad enough to include public roadways used by the insured to transport workers and materials between the insured's farms” (even though the two farms were nine miles apart)" Since the pickup truck was used exclusively for farm purposes, and the accident occurred along the most direct route between the two farm parcels coverage is available. The pickup truck was not subject to regular motor vehicle registration because of its exclusive use as a farm vehicle.


2/11/10           Falco v. Allstate Insurance Company
Appellate Division, Fourth Department
Both Contractual and Extra-Contractual Claims Dismissed Against Carrier
Plaintiff’s claim under General Business Law § 349 were properly dismissed.  Plaintiff failed to allege that "the acts or practices [complained of] have a broader impact on consumers at large" and thus failed to state a cause of action for the violation of that statute.  Likewise, plaintiff failed to even establish that that was any agreement between Allstate and the parties or that plaintiff could be a third-party beneficiary of any such agreement.

2/9/10           Mid City Construction Co., Inc. v. Sirius America Ins. Co.
Appellate Division, Second Department
Insufficient Proof of Mailing of Disclaimer Sinks Carrier

Finaly General Contracting established that Sirius did not disclaim as soon as reasonably possible, demonstrating that the carrier had enough information to do so in June of 2005, but did not disclaim until August. Sirius claimed that it sent out an earlier disclaimer letter but did not establish either proof of actual mailing or a standard office practice designed to assure that items are properly address and mailed. Even the certified mail receipt, standing alone, was insufficient to raise a triable issue of fact as to actual mailing. Whether the insured’s notice to the insurer was late becomes immaterial.


2/2/10          Hanson v. Turner Construction Co.
Appellate Division, Second Department
Where Additional Insured Knew of Accident and Injury Contemporaneously With Happening of Accident and Completed In-House Accident Report, Failure to Report to Carrier is Breach of Contract
Additional insured, Turner Construction Company knew of the accident when it occurred and also knew that plaintiff suffered a back injury. It prepared an accident report and gave it to its in house “insurance company.  That conduct is inconsistent with the current argument – proffered to excuse a two-year delay in giving notice to its liability carrier – that it had a good faith belief in non-liability.


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

[email protected]

2/11/10           Hartman-Jweid v. Overbaugh
Appellate Division, Fourth Department

Persuasive Evidence of Preexisting Condition Requires Rebuttal
Here the defendant’s orthopedic surgeon found that the only objective medical findings with respect to an alleged injury were related to a preexisting degenerative condition of the spine.  The plaintiff failed to rebut because the affidavits submitted in opposition did not address the defendant’s expert’s conclusion that changes were degenerative and not due to the accident.  The plaintiff’s claims under the permanent consequential limitation and significant limitation of use categories fail. 

In addition, the plaintiff’s claim under the 90/180-day category failed where the defendant’s expert indicated that the claimed injuries lacked a physiological base and any restrictions were self-imposed.  Because the expert affidavits submitted in opposition only addressed the alleged spinal injuries, and those were found to be related to a degenerative condition, the plaintiff failed to raise a triable issue of fact.

2/9/10             Amamedi v. Archibala
Appellate Division, First Department

Work Loss of More Than 90 Days Is Not Determinative for 90/180-Day Claim
Although the plaintiff may have missed more than 90 days of work is not determinative under the 90/180-day category where there was no evidence that he was prevented from performing “substantially” all the material acts that constituted his usual and customary daily activities during at least 90 of the 180 days immediately following the accident.

In addition, the defendants’ experts found no medical evidence of recent trauma but rather a degenerative condition involving desiccation along the spine which, by definition, is a drying out of the disc material that occurs over an extended period and was consistent with the plaintiff’s age, occupation and weight.  The court noted that this finding warranted some kind of rebuttal on the plaintiff’s part but his experts completely failed to address the condition.

2/9/10             Acosta v. Alexandre
Appellate Division, Second Department

Insignificant ROM Findings One Month After Accident and No Qualitative or Quantitative Findings During Recent Exam Defeat Claim
The plaintiff claimed injuries under the permanent loss, permanent consequential limitation of use and the significant limitation of use categories for injury sustained to his left knee.  One month after the accident, his treating physician noted only insignificant limitation.  During his recent examination, his physician failed to quantify or qualify any ROM findings.  In addition, the records of another doctor, who examined the plaintiff’s knee on two occasions, revealed normal ROM.  Although the MRI revealed a partial tear of the anterior cruciate ligament, it is well established that the mere existence of a tear in a ligament is not evidence of a serious injury absent objective evidence of the extent of the limitations and its duration.

2/9/10             Chiara v. Dernago
Appellate Division, Second Department

Reports Noting “Full” or “Normal” ROM Are Not Sufficient
Here the defendants fail to meet their burdens because the affirmed reports of their orthopedist noted “full” range-of-motion of the cervical and lumbar spine of one plaintiff, and “normal” range-of-motion of the cervical spine of the other plaintiff, but failed to set forth the objective tests done in reaching such conclusions.  Similarly, the remaining medical reports submitted also failed to set forth the tests used and/or did not address all the injuries claimed.

2/9/10             Maldonado v. Piccirilli
Appellate Division, Second Department

Photographs Refute Claim of “Significant Disfigurement”
The plaintiff claimed that the injuries to her face and nose qualified as a serious injury under the “significant disfigurement” category.  However, the court found that the photographs she herself submitted in opposition to the defendants’ motion did not meet the standard and therefore refuted her claim.   A reasonable person viewing her face would not regard it as unattractive, objectionable or the object of pity and scorn, and that is the standard.

2/2/10             Breedy v. Jenkins
Appellate Division, Second Department
Defendants’ Fail to Address 90/180-Day Category Alleged in
BOP
Consequently, and as seen repeatedly, they fail to meet their prima facie burden and their motion is denied, without the need to consider the sufficiency of the plaintiff’s opposing papers.
Note:  As we have often noted, it is essential that the motion papers address every one of the allegations in the Bill of Particulars.  The failure to do so will always result in the summary judgment being denied, even if the plaintiff does not have sufficient admissible evidence in opposition.

2/2/10             Encarnacion v. Smith
Appellate Division, Second Department
Defendants Again Fail to Address Claims Set Forth in
BOP
Again, it is a 90/180-day category claim set forth in the plaintiff’s BOP.  The plaintiff alleged she was incapacitated and unable to work since the accident and the defendants’ own examining orthopedic surgeon, who examined her over two years later, noted that she did not return to work due to the injuries sustained in the accident.  The plaintiff was also examined by the defendants’ neurologist, but both examining doctors failed to relate any of their findings to the 90/180-day category for the period immediately following the accident.  In addition, the defendants’ motion failed because their radiologist only considered the plaintiff’s cervical and lumbar spines, but not any of the other injuries alleged in her BOP.

2/2/10             Harris v. Boudart
Appellate Division, Second Department
MRI Report Based on Contemporaneous Testing, And Which Contains No Findings of Degenerative Condition, Is Sufficient
On appeal, the plaintiff wins a reversal and the defendants’ motion is denied.  The plaintiff alleged serious injury to her cervical and lumbar spine under the permanent consequential and/or significant limitation of use categories.  Her treating chiropractor examined her both contemporaneously and recently and reviewed MRI reports that revealed disc bulges and herniation.  He causally related the injuries to the accident, stating that the injuries were permanent.  In addition, the plaintiff’s treating physician addressed a prior neck injury ad stated that the plaintiff had not treated for that injury for some 15 years. 

The court further found that, even though the plaintiff did not directly address the defendants’ radiologist’s opinion that her injuries were degenerative in nature, the MRI report, that was based on testing that was contemporaneous with the accident, did not contain any findings that the injuries were degenerative and neither her physician nor chiropractor gave any indication that her injuries might have been caused by degenerative changes or anything else other than the accident.

2/2/10             Johnson v. Tranquille
Appellate Division, Second Department
Affirmations That Do Not Set Forth Contemporaneous, Actual Range-of-Motion Findings and Compare to the Norm, Do Not Raise Issue of Fact

On appeal, the defendants’ motion is granted where both their orthopedist and neurologist concluded that their examinations of the plaintiff were normal and, in opposition, the plaintiff submitted affirmations that did not set forth the actual ranges-of-motion that were contemporaneous with the accident or compare them with what are normal ranges-of-motion. 

2/2/10             Penoro v. Firshing
Appellate Division, Second Department
Findings in Examining Orthopedist’s Report Precludes Summary Judgment

The defendants’ motion is denied on appeal because their examining orthopedist indicated in his report that he found range-of-motion limitations of the plaintiff’s cervical and lumbar spine.  Such findings precluded summary judgment without considering the plaintiff’s opposing papers.

2/2/10             Rogers v. Aquino
Appellate Division, Second Department
Treating Physician’s Affirmation Is Enough to Raise Issue of Fact

Even though the defendant’s orthopedist and radiologist, and the plaintiff’s own deposition testimony, established that he did not sustain a serious injury, his treating physician’s affirmation was sufficient to raise a triable issue of fact to deny summary judgment.

2/2/10             Whitehead v. Olsen
Appellate Division, Second Department
Treating Chiropractor’s Ideal Affidavit

This plaintiff’s chiropractor knows.  She opined that the plaintiff’s lumbar injuries and range-of-motion limitations were significant, permanent and causally related to the accident.  She based her opinion on both contemporaneous and recent examinations, and reviews of MRI reports revealing a lumbar herniation and bulge.  In addition, she adequately addressed issues of degeneration and also explained that the plaintiff treated continuously since the accident and that there was no gap in treatment.  The trial court’s dismissal of the defendants’ motion was, not surprisingly, affirmed.


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

ARBITRATION

2/8/10             Applicant v. GEICO Ins. Co.
Arbitrator Thomas J. McCorry, Erie County
Lost Wage Claim Properly Denied As Applicant Not Disabled From Operating Tractor-Trailer
The Applicant, eligible injured person, sought $28,000.00 in lost wages, arising out of a June 9, 2007, motor vehicle accident.  Based upon the Applicant’s testimony, the assigned arbitrator determined that the Applicant was out of work for reasons other than disability due to injuries from the accident.  Rather, the Applicant, a truck driver, was out of work due to required attendance at a refresher coursed required by the NYS Department of Transportation. 
The Applicant contended that he was required to take the refresher course because he had physical limitations that prohibited him from passing the employer’s required retraining course.  Yet, the Applicant admitted that he was physically able to perform the job and the insurer presented medical documentation from the Applicant’s treating physician that his inability to work was not accident related.  Further, it appeared that the Applicant could not afford the $3,000.00 retraining fee which resulted in him being out of work for more than six months.


2/5/10             Buffalo ENT Specialist v. Unitrin Advantage Ins. Co.
Arbitrator Veronica K. O’Connor, Erie County
Applicant Failed to Appear for Scheduled IMEs and Assignee Did Not Present Reasonable Justification for Noncompliance

The Applicant’s assignor was involved in a January 17, 2006, motor vehicle accident and the insurer scheduled her for IME on May 17, 2006.  The assignor changed counsel and the IME scheduling letter was sent to her prior counsel and to the assignor.  The assignor failed to appear for that IME.  The Applicant argued that this should not be held against the assignor.  The insurer indicated that it did not it as a no show.
The insurer scheduled a second IME on May 8, 2006, and the notice was mailed and faxed to the current counsel to the assignor as well as the assignor.  The assignor failed to appear.  The Applicant argued that the assignor’s attorney had contacted the insurer complaining of location of the IME.  However, there was no agreement that the IME would be rescheduled and the assignor’s counsel contacted the insurer after the third no-show with the same IME location to request another opportunity to appear.  In that final discussion with the insurer, the assignor’s counsel never raised the IME location again as basis for not being able to appear.
The assigned arbitrator determined that the assignor violated a condition precedent under the policy to appear for scheduled IMEs and that the Applicant failed to provide a reasonable justification for noncompliance.

LITIGATION


2/11/10           People v. Taylor
Court of Appeals
In Criminal Action Against Law Firm Convicted of Assisting Clients In Submitting Fraudulent No-Fault Claims, Intent to Defraud Not An Element of Penal Law §175.35

A law office was convicted of four counts of offering a false instrument for filing under the Penal Law.  The theory was that the law office engaged in a scheme to submit fraudulent no-fault insurance claims by having illegally solicited accident victims exaggerate their injuries; obtain excessive medical treatment; and file inflated claims.  On appeal was whether the Appellate Division properly reversed the conviction as to the law office’s filing of retainer statements with the Office of Court Administration (OCA) with false representations as to the client referral source.
The Court of Appeals reversed the Appellate Division’s decision on the ground that the legal standard applied was incorrect.  The provision of the penal law with regard to this count, Penal Law §175.35, did not require establishing “intent to defraud.”  Rather, the statute’s plain terms lacked this element.


2/5/10             SZ Med., P.C. a/a/o Cowan v.  Lumbermens Mut. Cas. Co.
Appellate Term, Second Department
Insurer’s Motion to Vacate Default Judgment Denied
n appeal, the Appellate Term reversed the trial court and denied the insurer’s motion to vacate a default judgment.  The insurer failed to establish that a reasonable excuse existed for the default and that there was a meritorious defense to the action.  The insurer did not submit an affidavit from anyone with personal knowledge as to why no opposition was submitted to plaintiff’s summary judgment motion.  Further, counsel admitted that he was in receipt of the order with notice of entry and a copy of the proposed judgment for nearly six months before this motion was filed.  The Court held that this was intentional default which is not excusable.
In addition, a meritorious defense was not established in that 40% of the claims were paid.  The checks annexed to the motion papers indicated that they were void.


2/5/10             A.B. Med. Services, PLLC v.  GEICO Cas. Ins. Co.
Appellate Term, Second Department
Summary Judgment Denied to Plaintiff for Failing to Establish PF Case.

The plaintiff’s summary judgment motion was properly denied as it failed to establish its prima facie case.  The plaintiff’s billing manager’s affidavit did not establish that the documents in plaintiff’s papers were admissible pursuant to CPLR §4518.


2/5/10             NYS Insurance Department Circular Letter No. 4
Wage Continuation Plans – Circular Letter
This Circular Letter supersedes Circular Letter No. 12 (1997).
The Department of Insurance no longer maintains a list of the wage continuation plans.  Therefore, insurers are reminded of the requirements set forth in the implementing regulation, 11 NYCRR §65-3.16(b) (1) (i), wherein the following conditions must be met to take the offset:

  1. The applicant must be entitled to receive the same level of wage continuation benefits for a subsequent unrelated accident or illness when he or she returns to work after recovering from the injuries sustained in the motor vehicle accident;
  2. Benefits for a subsequent unrelated accident or illness must be equal in both time and amount to the wage continuation benefits to which the applicant was entitled as a result of the injuries suffered in the motor vehicle accident; and
  3. Wage continuation benefits for a subsequent disability must be immediately available, without any requirement that the applicant work a stated period of time before full benefits are restored.

Further, insurers are reminded that if the wage continuation plan provides less than 100% of the employee’s salary then the insurer must reduce the amount paid under the plan to the amount required to be paid in satisfaction of NYS Disability Law.  See, 11 NYCRR §65-3.19(f) (3).  Therefore, only anything in excess of the NYS Disability would be a qualified wage continuation benefit plan.
Also, the insurer cannot take a deduction for contractual or voluntary long-term disability plans, which generally are effective six months after the disability date begins.  See, 11 NYCRR §65-3.16(b) (1) (iii).


PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper

[email protected]

Of Property

2/09/10           Fidelity National Title Ins. Co. v Regent Abstract Services, Ltd.
Appellate Division, First Department
When Time Is Not On Your Side:  Policy Is Cancelled for Late Payment of Premiums after Insured’s Death
Plaintiff was covered under a life insurance policy issued by New York Life.  The policy’s monthly premium was due on February 27, 2008.  A late payment to reinstate the policy was forwarded, but not received by New York Life until March 6, 2008.  Unfortunately, the insured died on March 3, 2008.

Because the policy included terms which required the insured to be alive at the time of reinstatement, the late payment was not received in time.  As such, the policy had lapsed and could not be reinstated. 

2/02/10           Synder v. Allstate Insurance Company
Appellate Division, Second Department
Two-Year Statute of Limitations in a Homeowners’ Policy is Upheld, AGAIN!
Plaintiff commenced the instant action against Allstate for damages they alleged were covered under their homeowners’ policy.  Unfortunately for plaintiff, the lawsuit was not commenced until more than two years after the subject loss. 

Where plaintiff was unable to establish how it had been “lulled into inactivity” by the actions of Allstate, its Complaint was accordingly dismissed per the terms of the insurance policy.

And Potpourri

2/12/10           Thompson v Mather, et al.
Appellate Division, Fourth Department
Counsel to Non-Party Witness Precluded From Objecting or Otherwise Participating in Pre-Trial Deposition
Prior to the trial of this medical malpractice action, plaintiff sought to take the non-party video-taped testimony of Dr. Godishala.  At the time of the deposition, Dr. Godishala appeared, but was otherwise accompanied by counsel.  Despite plaintiff’s counsel’s protestations, during the course of testimony, counsel for Dr. Godishala objected several times regarding the form and relevance of questions being posed by plaintiff’s counsel.  As a result, the deposition was eventually suspended and plaintiff’s counsel sought an Order from the Trial Court which would preclude counsel from objecting during the course of the deposition.

The Fourth Department unequivocally held that counsel to a non-party witness “does not have a right to object during or otherwise participate in a pre-trial deposition.”  In so holding, the Court noted that it discerned “no distinction between trial testimony and pre-trial deposition testimony presented at trial.  Accordingly, plaintiff’s counsel was permitted to proceed with his deposition of Dr. Godishala free of objections from counsel.

2/11/10           Phoenix Life Ins. Co. v. The Irwin Levinson Insurance Trust II
Appellate Division, First Department
Non-Party Witness’ Motion to Quash Granted Where Plaintiff’s Subpoena was Deemed Irrelevant as to the Actions and Intent of the Defendants
Plaintiff commenced the above action to rescind a policy of life insurance that was issued to Irwin Levinson.  Shortly after the risk was bound, but prior to the payment of any premiums, Mr. Levison transferred his interest in the policy to an irrevocable trust.  The trust, in turn, transferred the policy to an unidentified third-party in exchange for payment of an unidentified sum.  Arguing that the transfer placed the benefits of the policy in the hands of a party who lacked an insurable interest, Phoenix immediately sought to rescind the policy.

In the course of prosecuting its action, Phoenix served a non-party subpoena upon an individual who allegedly had knowledge and experience with other transfers similar to the one at issue in this case.  The non-party witness moved to quash the subpoena, and the Trial Court agreed.  In affirming the Trial Court’s decision to quash, the First Department noted that the requested information was irrelevant to the intent of Mr. Levinson or the trust in this instance. 

2/05/10           Hadzihasanovic v 155 E. 72nd St. Corp.
Appellate Division, Second Department
Contractual Indemnity Clause Within Lease Agreement Voided by Operation of GOL § 5-321
Plaintiff commenced the instant action as a result of allegedly sustaining injuries while in course of performing construction work at defendants’ apartment building.  Defendants then asserted a claim for contractual indemnification against the tenant of the apartment where plaintiff sustained injury.  The tenants opposed on the basis that the indemnity provision found within the lease was unenforceable.

The Trial Court dismissed the cross-claim for contractual indemnification, and the Second Department affirmed.  In so holding, the Second Department ruled that “[a] broad indemnification provision in a lease, such as the alteration agreement here, which is not l limited the lessee’s acts or omissions, fails to make exceptions for the lessor’s own negligence, and does not limit the lessor’s recovery under the lessee’s indemnification obligation to insurance proceeds, is unenforceable pursuant to GOL § 5-321.” 

*** We wonder if there was some evidence of independent negligence on the part of the owners/purported indemnitees – the decision does not discuss that possible aspect of this case***


FIJAL’S FEDERAL FOCUS
Katherine A. Fijal

[email protected] 


2/12/10:  Fortney & Weygandt, Inc. v. American Manufacturers Mutual Insurance Company; American Motorists Insurance Company; Lumbermens Mutual Casualty Insurance Company
United States Court of Appeals for the Sixth Circuit
When Does The Defective Workmanship Exclusion Apply?
Since there were no new insurance decisions out of the Second Circuit, in this edition we will provide you with a decision from the Sixth Circuit [Ohio] which addresses the defective workmanship exclusion.

Fortney contracted with Frisch’s Restaurants, Inc to build a Golden Corral restaurant in North Canton, Ohio.  After the restaurant was nearly completed, but before it opened for business, some soil shifted around the foundation, breaking the building’s underground utility lines.  After an investigation, Frisch’s determined that the foundation was defective.  The remedy for that defect was to demolish and rebuild the restaurant, and Frisch did so.

Fortney filed a state court action against its insurer, AMICO, seeking a declaration of coverage. AMICO removed the case to federal court on diversity grounds.  Fortney thereafter filed a motion for summary judgment, and AMICO filed a motion for judgment on the pleadings.  The court also held that a completed operations exception to that exclusion did not apply to the claims, leaving Forney without coverage.
The district court denied Fortney’s motion but granted AMICO’s, holding that the defective-workmanship exclusion applied to the claims by Frisch and the architect.

The exclusion at issue in the litigation was the 2(j) (6) exclusion in the standard ISO coverage form.  Paragraph 2(j) (6) provides:

            2.         Exclusions

This insurance does not apply to:

                                                                        ********

                        j.          Damage to Property

“Property damage” to:

                                                                        ********

                                    (6)       That particular part of any property that must be restored, repaired or replaced because “your work”                                                 was incorrectly performed on it.

The parties agreed that (j)(6) would exclude coverage for claims seeking recovery for the cost of replacing only the defective foundation itself.  The claims at issue, however, sought recovery for the cost of replacing not only the foundation, but the whole building. Apart from the foundation, none of Fortneys’ work on the building was defective. 

The question presented to the Sixth Circuit was whether (j)(6) excludes coverage for the cost of replacing building parts on which the insured performed non-defective work, but that were replaced anyway because of the insured’s defective work on another part of the building.  This was the first time the Ohio courts have addressed this issue.

In rendering its decision the Court analyzed and agreed with the decisions in the Fifth Circuit and concluded that the plain meaning of the exclusion – property damage to that part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it” -- is that property damage only to part of the property that were themselves the subject of the defective work is excluded.  

The Sixth Circuit reversed the decision of the district court and held that the (j)(6) exclusion applies only to the cost of repairing or replacing distinct component parts on which the insured performed the defective work.

THE LIENING TOWER OF PERLEY
Michael F. Perley

[email protected]
Keep Your Eye on Alabama

Last summer when CMS was conducting town hall meetings for the insurance industry, insurance industry representatives perhaps took some comfort in the CMS position that it would not require Medicare Set Asides (MSAs) in liability cases.  Rather than good news, it appears that the CMS’s position was bad news.  Some consider the CMS position to indicate that insurance companies, as primary payers, would not be required to consider the future interest of Medicare in paying any settlement or judgment.  However, it would appear that the United States Attorney takes a different position in USA v. Stricker; a case currently pending in the Northern District of Alabama (CV-09-KOB-2423-E).  The United States Attorney has filed what amounts to a preemptive motion for partial summary judgment on the issue of liability against plaintiffs’ counsel, insurance companies and individual defendants with respect to a settlement entered into in 2003.  The motion filed by the United States Attorney seeks double damages for Medicare’s expense for the period 2001 through 2009, more than six years after the date of settlement, from these entities. 

While some may be surprised by the United States Attorney’s actions, the Medicare Secondary Payer Act clearly gives the government the right to seek this reimbursement and, therefore, creates the obligation on all settling defendants and insurance companies to take Medicare’s interests into proper account.  For that reason, the equivalent of a Medicare Set Aside should be on the radar screen for all settling insurance companies. 

We will closely monitor the developments in USA v. Stricker and continue to report on that and other issues as the evolving Medicare Secondary Payer issues crystallizes.

For the time being, we will continue to recommend that all settling defendants employ some mechanism to take the future liability of Medicare into account with respect to any settlement.  (42 USC 1395(y) grants the United States the right to seek reimbursement for a period of three years after the date of payment.  There is no restriction on the United States seeking reimbursement if the payment is made after the date of any settlement.  Therefore, care is required when entering into any agreement to dispose of pending litigation.

EARL’S PEARLS
Earl K. Cantwell

[email protected]
Professional Liability Duty to Defend Gets Expansive Interpretation

A Federal District Court in Texas recently held an insurance company had a duty to defend suits against a law firm alleging that the lawyers receive kickbacks when they settled silicosis claims for client workers.  American Guarantee & Liability Ins. Co. v. Hoeffner, 2009 WL 130221 (S.D. Texas 1/16/09). 

Three former clients brought suits against the law firm alleging the law firm received kickbacks in the form of attorneys’ fees for supposedly agreeing to settle silicosis claims for less than fair value.  The law firm’s professional liability policy defined “Damages” as excluding “personal profit or advantage to which the insured was not legally entitled”, and also excluded punitive, exemplary or multiple damages.  “Legal Services” were defined as “services performed by an insured as a licensed lawyer in good standing”.  The policy also contained an exclusion for intentional, criminal, fraudulent and similar conduct. 

The insurer filed a declaratory judgment suit seeking a declaration that it did not have a duty to defend or indemnify the law firm in connection with the suits alleging the kickbacks on the silicosis cases.  The insurance company moved for summary judgment, but the court denied the motion.  The insurance company brought out its full array of arguments against coverage, but each was found insufficient at least insofar as a duty to defend was concerned.

The insurance company first argued there was no coverage because engaging in the kickback scheme was not within the policy definition of “legal services” and hence not covered.  The court rejected this argument stating that the underlying injury suits were within the definition of legal services since, as we all know, bringing and settling lawsuits is activity “ordinarily performed by lawyers”. 

The insurance company next argued an exclusion argument that there was no coverage because the plaintiffs asserted claims for forfeiture, damages and punitive damages which were excluded from the policy definition of damages.  The court rejected this argument as well, noting that the cases also involved claims for “compensatory damages” seeking the difference between amounts the clients received in settlement as opposed to amounts they allegedly would have received absent any kickback scheme.  The court concluded that such types of “compensatory damages” were covered, or rather not excluded, by the policy. 

The insurance company, pressing on, also asserted a prior knowledge exclusion.  The insurer argued that coverage was precluded by “prior knowledge” because before the policy was issued the law firm knew it was (allegedly) engaging in the kickback scheme, therefore knew of its breach of a professional duty, and had a basis to foresee that such conduct could result in a claim.  Once again, the court rejected that argument because the complaint did not allege the kickback scheme began before the inception date of the policy, therefore the “prior knowledge” exclusion did not necessarily relieve the insurer of the duty to defend.

The insurance company’s final argument was to refer to the “intentional act” exclusion, and once again the court held that exclusion did not relieve the insurer of its duty to defend.  The exclusion apparently applied only where there had been a final adjudication that the insured committed intentional misconduct, or if the insured admitted to committing intentional misconduct, which was not the case given the procedural posture of both the kickback scheme litigation and the declaratory judgment action.

This case represents the far reach of the duty to defend under a professional liability policy where serious bad acts of the insured were alleged.  The insurance company’s various arguments against coverage and no duty to defend or indemnify were found either inapplicable or at least not dispositive.  The insurance company raised all of the appropriate objections to coverage, such as no coverage, exclusions, prior knowledge and intentional acts but could not prevail on its summary judgment motion. 

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

2/17/10           Roberts v. Printup

10th Circuit Court of Appeals (applying Kansas law)
In a Garnishment Action Against an Insurer to Collect a Judgment that was in Excess of the Policy Limits, Claiming that Defendant Negligently or in Bad Faith Delayed in Accepting an Offer to Settle within the Policy's Limits, Judgment for Defendant is Reversed where it was Foreseeable to Defendant that its Negligence in Failing to Implement a System to Handle Reasonable Time-Sensitive Settlement Offers from an Injured Party could Result in a Lawsuit being Filed Against its Insured
Roberts brought a garnishment action against Shelter Insurance seeking collection of judgment in excess of policy limits. Roberts was a passenger in the car driven by her son Printup. The brakes failed and the car hit a tree and Roberts sustained serious injuries. The car was insured by Shelter. Shelter received notice of the accident four days after the accident and Shelter logged the incident as a Code 39, which means, ‘one-car accident, insured at fault. In April 2002 shortly before the statute of limitations would run for filing a claim, Roberts who was still being treated but had undergone 4 surgeries wrote a letter and demanded policy limits of $25,000.00 and a response within 10 days. No response was given with in the ten days her letter was misrouted by Shelter and Roberts hired a lawyer and filed suit. Shelter, Ms. Roberts and Printup signed a Settlement Agreement. The agreement stated that “[w]ith the consent of Shelter, Printup offers to confess judgment in favor of Roberts on the issue of fault and causation and submit the issue of damages to the Court for decision. The District Court found damages in the amount of total of $1,033,891.60 and Shelter paid the policy limits of $25,000.00 Roberts then filed a garnishment action against Shelter asserting bad faith and negligence. The District Court granted summary judgment on both causes of action. On appeal the Court reversed summary judgment on the negligence claim. The Court found that It is readily apparent that it was foreseeable to Shelter that its negligence in failing to implement a system to handle reasonable time-sensitive settlement failing to implement a system to handle reasonable time-sensitive settlement offers from an injured party could result in a lawsuit being filed against its insured.
Submitted by: Tim Hughes, Markel Corporation

2/8/10             Constantino v. Skolnick
Connecticut Supreme Court
Although the  Parties Entered Into a Settlement which Allowed the Court to Decide the Effect of a Policy Limit on an Offer of Judgment, that Determination was Moot Under §52-192

Plaintiff filed an offer of judgment in the amount of $1 million, which was the limit of liability under defendant physician’s malpractice policy. The offer was not accepted within the 30 days mandated under § 52-192a and was deemed rejected. Settlement agreement entered into 19 months later reserved for the court whether insurer must pay offer of judgment interest, but the court concluded that, despite the attempt by the parties to characterize the payment of interest as a contractual issue, the statutory predicate that an award of interest comes after trial must be satisfied.
Submitted by: Michael T. Glascott, Goldberg Segalla, LLP
REPORTED DECISIONS
Hanson v. Turner Construction

Miranda Sambursky Slone Sklarin Verveniotis LLP, Mineola, N.Y.
(Neil Sambursky and Maurizio Savoiardo of counsel), for third-party
defendant-appellant.
Cullen and Dykman LLP, Brooklyn, N.Y. (Dawn C. Wheeler of
counsel), for defendant third-party
plaintiff-respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, etc., and a third-party action for a judgment declaring, inter alia, that the third-party defendant Sompo Japan Insurance Company, f/k/a Yasuda Fire and Marine Insurance Company, is obligated to defend and indemnify the defendant third-party plaintiff, Turner Construction Company, in the main action, the third-party defendant Sompo Japan Insurance Company, f/k/a Yasuda Fire and Marine Insurance Company, appeals from an order of the Supreme Court, Kings County (Sunshine, Ct. Atty. Ref.), dated February 25, 2009, which, after a framed-issue hearing, in effect, granted that branch of the motion of the defendant third-party plaintiff, Turner Construction Company, which was for summary judgment declaring that it must include the defendant third-party plaintiff as an additional insured under the policy of insurance it issued and that it is obligated to defend and indemnify the defendant third-party plaintiff in the main action, and denied that branch of the cross motion of the third-party defendants which was for summary judgment declaring that the third-party defendant Sompo Japan Insurance Company, f/k/a Yasuda Fire and Marine Insurance Company, need not include the defendant third-party plaintiff as an additional insured under the policy of insurance it issued, and that it is not obligated to defend and indemnify the defendant third-party plaintiff in the main action.
ORDERED that the order is reversed, on the law, with costs, that branch of the motion of the defendant third-party plaintiff which was for summary judgment declaring that the third-party defendant Sompo Japan Insurance Company, f/k/a Yasuda Fire and Marine Insurenace Company, must include the defendant third-party plaintiff as an additional insured under the policy of insurance it issued and that it is obligated to defend and indemnify the defendant third-party plaintiff in the main action, is denied, and that branch of the cross motion of the third-party defendants which was for summary judgment declaring that the third-party defendant Sompo Japan Insurance Company, f/k/a Yasuda Fire and Marine Insurance Company need not include the defendant third-party plaintiff as an additional insured under the policy of insurance it issued, and that it is not obligated to defend and indemnify the defendant third-party plaintiff in the main action, is granted, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the third-party defendant Sompo Japan Insurance Company, f/k/a Yasuda Fire and Marine Insurance Company, need not include the defendant third-party plaintiff as an additional insured under the policy of insurance it issued and is not obligated to defend and indemnify the defendant third-party plaintiff in the main action.
Where, as here, an insurance policy requires an insured to provide notice of an occurrence as soon as practicable, such notice must be provided within a reasonable time in view of all of the circumstances (see Eagle Ins. Co. v Zuckerman, 301 AD2d 493, 495; Travelers Indem. Co. v Worthy, 281 AD2d 411). "While a good-faith belief of nonliability may excuse or explain a failure to give timely notice, the insured bears the burden of demonstrating that the delay in giving notice was reasonable" (Travelers Indem. Co. v Worthy, 281 AD2d at 412; see St. James Mech., Inc. v Royal & Sunalliance, 44 AD3d 1030, 1031).
In this case, the defendant third-party plaintiff, Turner Construction Company (hereinafter Turner), possessed contemporaneous knowledge of the accident and that the injured plaintiff sought treatment at a medical facility for an injury to his back immediately following the accident. Moreover, the fact that Turner provided a copy of the accident report it prepared to, among others, its "insurance company department," was inconsistent with Turner's claim of having a good-faith belief in nonliability. Under the circumstances, Turner's delay of nearly two years in giving notice of the accident was unreasonable (see Fischer v Centurion Ins. Co., 9 AD3d 381, 382; Zadrima v PSM Ins. Cos., 208 AD2d 529, 530).
Since the third-party action is a declaratory judgment action, the matter must be remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the third-party defendant Sompo Japan Insurance Company, f/k/a Yasuda Fire and Marine Insurance Company need not include Turner as an additional insured under the policy of insurance it issued and is not obligated to defend and indemnify Turner in the main action (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).
Breedy v. Jenkins


Cohen, Kuhn & Associates (John T. Ryan, Riverhead, N.Y.
[Robert F. Horvat], of counsel), for appellants.
Alexander Bespechny, Brooklyn, N.Y. (Louis A. Badolato 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 (Schmidt, J.), entered February 2, 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 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, 956-957). The defendants' motion papers failed to adequately address the plaintiff's claim, clearly set forth in her bill of particulars, that 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 (see Smith v Quicci, 62 AD3d 858; Alexandre v Dweck, 44 AD3d 597; Sayers v Hot, 23 AD3d 453, 454).
Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiff in opposition to the defendants' motion were sufficient to raise a triable issue of fact (see Smith v Quicci, 62 AD3d at 859;Alexandre v Dweck, 44 AD3d 597; Sayers v Hot, 23 AD3d 453; Coscia v 938 Trading Corp., 283 AD2d 538).
Encarnacion v. Smith


Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (Michael
F. Ingham of counsel), for appellants.
Berkman Law Office, Brooklyn, N.Y. (Robert J. Tolchin and
Eileen Kaplan of counsel), for
respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants GC Alarm, Inc., and Jonathan E. Reilly appeal from an order of the Supreme Court, Kings County (Bayne, J.), dated February 13, 2008, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
While we affirm the order appealed from, we do so on a ground other than that relied upon by the Supreme Court. The appellants 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, 956-957). The appellants' motion papers failed adequately to address the plaintiff's claim, clearly set forth in her bill of particulars, that 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) (see Alvarez v Dematas, 65 AD3d 598; Smith v Quicci, 62 AD3d 858; Alexandre v Dweck, 44 AD3d 597; Sayers v Hot, 23 AD3d 453, 454). The subject accident occurred on June 14, 2004. In her bill of particulars, the plaintiff alleged that, since the subject accident, she has been confined to her bed and home, and has been incapacitated and unable to work. The medical report of Dr. Edward Toriello, the appellants' examining orthopedic surgeon, who examined the plaintiff two years and four months after the subject accident, noted that the plaintiff did not return to work due to the injuries sustained in the subject accident. In addition, the plaintiff was examined by Dr. Daniel J. Feuer, the appellants' examining neurologist, on September 19, 2006. Both Dr. Toriello and Dr. Feuer failed to relate their findings to the 90/180 category of serious injury for the period of time immediately following the subject accident.
While the appellants also relied on the affirmed medical reports of their radiologist, Dr. Alan B. Greenfield, these reports were insufficient to meet their prima facie burden. Greenfield's reports dealt solely with the cervical and lumbar regions of the plaintiff's spine, whereas, in her bill of particulars, she alleged injuries to parts of her body in addition to those regions of her spine (see Menezes v Khan, 67 AD3d 654; Takaroff v A.M. USA, Inc., 63 AD3d 1142, 1143; Delayhaye v Caledonia Limo & Car Serv., Inc., 61 AD3d 814, 815; Carr v KMO Transp., Inc., 58 AD3d 783, 784-785; Jensen v Nicmanda Trucking, Inc., 47 AD3d 769, 770).
The appellants' remaining contentions either are without merit or refer to material that, as the Supreme Court correctly determined, was improperly submitted for the first time with the appellants' reply papers (see CPLR 2214; Klimis v Lopez, 290 AD2d 538).
Accordingly, the Supreme Court properly denied the appellants' motion for summary judgment regardless of the sufficiency of the plaintiff's opposing papers (see Alvarez v Dematas, 65 AD3d 598).


Harris v. Boudart
Harold Solomon, Rockville Centre, N.Y. (Bernard G. Chambers of
counsel), for appellant.
Richard T. Lau, Jericho, N.Y. (Joseph G. Gallo of counsel), for
respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Nassau County, dated January 12, 2009, which, upon an order of the same court (LaMarca, J.), dated November 24, 2008, made upon reargument and renewal, adhering to a prior determination in an order dated June 18, 2008, granting 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 in favor of the defendants and against her, dismissing the complaint. The notice of appeal from the order dated November 24, 2008, is deemed a notice of appeal from the judgment dated January 12, 2009 (see CPLR 5512[a]).
ORDERED that the judgment is reversed, on the law, with costs, upon reargument and renewal, the order dated June 18, 2008, is vacated, and the defendants' motion for summary judgment dismissing the complaint is denied, and the order dated November 24, 2008, is modified accordingly.
While the defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957), in opposition, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to her cervical and/or lumbar spine under the permanent consequential and/or the significant limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident (see Dong Soo Kim v Kottler, 58 AD3d 670; Williams v Clark, 54 AD3d 942; Casey v Mas Transp., Inc., 48 AD3d 610; Green v Nara Car & Limo, Inc., 42 AD3d 430).
The plaintiff's treating chiropractor, James W. Rogers, opined, based on his contemporaneous and recent examinations of the plaintiff, as well as on his review of the plaintiff's magnetic resonance imaging reports, which showed, inter alia, disc bulges in the cervical spine and disc herniation in the lumbar spine, that the plaintiff's lumbar and cervical injuries and observed range of motion limitations were permanent and causally related to the subject accident. He further concluded that the injuries amounted to a permanent consequential limitation of use of the cervical and lumbar spine as well as a significant limitation of use of those regions.
Contrary to the defendants' contention, the plaintiff's treating physician, Philip Rafiy, sufficiently addressed a prior injury to the plaintiff's neck in 1988, 18 years before the subject accident, noting that despite her intermittent neck pain, she essentially had been asymptomatic and without treatment for at least 15 years. Coupled with the facts that even the defendants' doctor, Naunihal Sachdev Singh, concluded that what he described as a cervical spine sprain was caused by the instant accident and that the plaintiff also sustained an injury to her lumbar spine, the plaintiff was not obliged to do more to overcome the defendants' motion for summary judgment motion (see Pommells v Perez, 4 NY3d 566, 578; Linton v Nawaz, 62 AD3d 434, 441; Sforza v Big Guy Leasing Corp., 51 AD3d 659, 661).
Similarly, contrary to the defendants' contention, although the plaintiff's submissions did not directly address the defendants' radiologist's opinion that the injuries were degenerative in nature, the magnetic resonance imaging reports based on testing performed contemporaneously with the subject accident contained no findings that the plaintiff's injuries were degenerative in nature. Moreover, the plaintiff's treating physician and chiropractor gave no indication that her symptoms may have been caused by degeneration changes, were chronic, or were caused by anything other than the accident (see Pommells v Perez, 4 NY3d at 577-578; Linton v Nawaz, 62 AD3d at 441; Sforza v Big Guy Leasing Corp., 51 AD3d at 660-661).
Contrary to the defendants' contention, there was no lengthy gap in treatment (see Pommells v Perez, 4 NY3d at 574; Seecoomar v Ly, 43 AD3d 900, 901).
.
Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.


Johnson v. Tranquille
Timothy M. Sullivan, New York, N.Y., for appellants.
Eric H. Green, New York, N.Y. (Marc Gertler of counsel), for
respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schack, J.), dated February 6, 2009, as, upon granting that branch of their motion which was to vacate their default in opposing the plaintiffs' prior motion for leave to reargue, and thereupon granting the plaintiff's motion for leave to reargue, upon reargument, denied their motion 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) and granted the plaintiffs' cross motion for summary judgment on the issue of liability.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and, upon reargument, the determination in an order dated November 5, 2007, granting the defendants' motion for summary judgment dismissing the complaint and denying the plaintiffs' cross motion for summary judgment on the issue of liability is adhered to, and an order dated March 28, 2008, is vacated.
Contrary to the determination of the Supreme Court, the defendants made a prima facie showing that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) through their submission of the affirmed reports of their expert orthopedist and neurologist, who examined the plaintiffs and concluded that their examinations were essentially normal (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352; Gaddy v Eyler, 79 NY2d 955, 957; Shevardenidze v Vaiana, 60 AD3d 660; Nelson v Distant, 308 AD2d 338, 339). In opposition, the plaintiffs failed to raise a triable issue of fact. Notably, the medical affirmations submitted on behalf of the plaintiffs failed to set forth the actual ranges of motion achieved by the plaintiffs contemporaneously with the accident, and to compare those findings to normal ranges of motion (see Morris v Edmond, 48 AD3d 432). Likewise, the plaintiffs' submissions failed to raise a triable issue of fact regarding any other statutory category of serious injury.
In view of the foregoing, the defendants' motion for summary judgment dismissing the complaint should have been granted, and the plaintiffs' cross motion for summary judgment on the issue of liability should have been denied.

Penoro v. Firshing
Mitchell Dranow, Mineola, N.Y., for appellants.
Russo, Apoznanski & Tambasco, Westbury, N.Y. (Susan J.
Mitola of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Murphy, J.), dated January 6, 2009, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff Lorraine Penoro did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
The defendant failed to make a prima facie showing that the plaintiff Lorraine Penoro (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The report of the defendant's examining orthopedist disclosed that he found limitations in the ranges of motion of the cervical and lumbar regions of the injured plaintiff's spine (see Powell v Prego, 59 AD3d 417, 419; Norme v Ajons, 57 AD3d 749; Wright v AAA Constr. Servs., Inc., 49 AD3d 531, 532; Umar v Ohrnberger, 46 AD3d 543, 544; Bentivegna v Stein, 42 AD3d 555). Since the defendant failed to establish her prima facie entitlement to judgment as a matter of law, we need not examine the sufficiency of the plaintiffs' opposition papers (see Held v Heideman, 63 AD3d 1105, 1106; Landman v Sarcona, 63 AD3d 690, 691; Alam v Karim, 61 AD3d 904; Liautaud v Joseph, 59 AD3d 394, 395).


Rogers v. Aquino
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellant.
Alexander Bespechny, Brooklyn, N.Y. (Louis A. Badolato of
counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated May 18, 2009, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
The defendant established, prima facie, through the affirmed reports of his expert orthopedist and expert radiologist and the plaintiff's deposition testimony, 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 Richards v Tyson, 64 AD3d 760; Berson v Rosada Cab Corp., 62 AD3d 636; Byrd v J.R.R. Limo, 61 AD3d 801). However, the affirmation of the plaintiff's treating physician was sufficient to raise a triable issue of fact. Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.

Whitehead v. Olsen
Zaklukiewicz Puzo & Morrissey, LLP, Islip Terrace, N.Y. (Candace
M. Bartone of counsel), for appellants.
Rosenberg & Gluck, LLP, Holtsville, N.Y. (Matthew Bligh 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, Suffolk County (Costello, J.), dated November 19, 2008, 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 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 Giraldo v Mandanici, 24 AD3d 419). In opposition, the plaintiff principally relied on the affidavit of her treating chiropractor, Dr. Kim L. Wist. In that affidavit, Dr. Wist opined that the plaintiff's lumbar injuries and observed range-of-motion limitations were significant and permanent, and causally related to the subject accident. Dr. Wist based her opinion on her contemporaneous and most recent examination of the plaintiff and her review of the plaintiff's magnetic resonance imaging reports of, inter alia, her lumbar region, which revealed a herniated disc at L4-5 and a bulging disc at L5-S1. Thus, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to her lumbar spine under the permanent consequential limitation of use or the significant limitation of use category of Insurance Law § 5102(d) as a result of the subject accident (see Eusebio v Yannetti, 68 AD3d 919; Sanevich v Lyubomir, 66 AD3d 665; Azor v Torado, 59 AD3d 367, 368; Williams v Clark, 54 AD3d 942, 943; Casey v Mas Transp., Inc., 48 AD3d 610, 611; Green v Nara Car & Limo, Inc., 42 AD3d 430, 431; Francovig v Senekis Cab Corp., 41 AD3d 643, 644-645).
Contrary to the defendants' contentions on appeal, there was no gap in the plaintiff's treatment. Dr. Wist explained in her affidavit that the plaintiff essentially was treated by her continuously from the time of the subject accident until her recent examination of the plaintiff in 2008. Furthermore, Dr. Wist adequately addressed in her affidavit any issues regarding degeneration.

Mid City Construction Co., Inc. v. Sirius America Insurance Company

White, Quinlan & Staley, LLP, Garden City, N.Y. (Christopher M.
Otten of counsel), for appellant.
Georgoulis & Associates PLLC, New York, N.Y. (Michael
McDermott of counsel), for
respondent.

DECISION & ORDER
In an action, inter alia, for a judgment declaring that the defendant Sirius America Insurance Company is obligated to defend and indemnify the plaintiff, Mid City Construction Co., Inc., in an underlying action entitled Levine v Colony Records & Radio Center, LLC, pending in the Supreme Court, Kings County, under Index No. 16009/05, that defendant appeals from an order of the Supreme Court, Kings County (Ambrosio, J.), dated September 5, 2008, which granted the motion of the defendant Finaly General Contracting Corp., a/k/a Finaly General Contractors, Inc., for summary judgment declaring that it is obligated to defend and indemnify the defendant Finaly General Contracting Corp., a/k/a Finaly General Contractors, Inc., in the underlying action.
ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that the defendant Sirius America Insurance Company is obligated to defend and indemnify the defendant Finaly General Contracting Corp., a/k/a Finaly General Contractors, Inc., in the action entitled Levine v Colony Records & Radio Center, LLC, pending in the Supreme Court, Kings County, under Index No. 16009/05.
The defendant Finaly General Contracting Corp., a/k/a Finaly General Contractors, Inc. (hereinafter Finaly), established its prima facie entitlement to judgment as a matter of law on its cross claim for declaratory relief against the defendant Sirius America Insurance Company (hereinafter Sirius) by demonstrating that Sirius did not disclaim coverage "as soon as is reasonably possible" (Insurance Law § 3420[d][2]; see Sirius Am. Ins. Co. v Vigo Constr. Corp., 48 AD3d 450, 452). Finaly showed that Sirius had "sufficient knowledge of facts entitling it to disclaim" by June 10, 2005, at the latest, and that Sirius did not disclaim until August 3, 2005 (see First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64, 66). In opposition, Sirius failed to raise a triable issue of fact as to whether it sent an earlier disclaimer letter on June 21, 2005, by certified mail, return receipt requested (see Rael Automatic Sprinkler Co., Inc. v Schaefer Agency, 52 AD3d 670, 673). "Generally, proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee'" (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547, quoting Matter of Rodriguez v Wing, 251 AD2d 335, 336). "The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed" (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680). Sirius offered no evidence as to its standard office practices for mailing disclaimer letters, and the affidavit of a claims representative was insufficient to raise a triable issue of fact since he did not have personal knowledge of the mailing of the disclaimer letter (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d at 547; Tracy v William Penn Life Ins. Co. of N.Y., 234 AD2d 745, 748). The certified mail receipt, standing alone, was insufficient to raise a triable issue of fact as to actual mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d at 548; Matter of State Farm Mut. Auto. Ins. Co. [Kankam], 3 AD3d 418, 419; cf. Westchester Med. Ctr. v Liberty Mut. Ins. Co., 40 AD3d 981, 983). Although issues of fact exist as to whether Finaly provided notice of an occurrence "as soon as practicable" (M & N Mgt. Corp. v Nationwide Mut. Ins. Co., 307 AD2d 257, 258), Sirius's "failure to provide notice of disclaimer as soon as is reasonably possible precludes effective disclaimer, even where the insured's own notice of the incident is untimely" (Tex Dev. Co. v Greenwich Ins. Co., 51 AD3d 775, 778; see Osterreicher v Home Mut. Ins. Co. of Binghamton, N.Y., 272 AD2d 926, 927).
Sirius's contention that Finaly's motion was premature is without merit.
Accordingly, the Supreme Court properly awarded summary judgment to Finaly on its cross claim against Sirius.
Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that Sirius is obligated to defend and indemnify Finaly in the underlying action (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).

Amamedi v. Archibala
Feinman & Grossbard, P.C., White Plains (Steven N. Feinman
of counsel), for appellants.
Budin, Reisman, Kupferberg & Bernstein, LLP, New York
(Philip M. Aglietti of counsel), for respondents.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about August 5, 2009, which denied defendants' motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Contrary to defendants' contention, plaintiffs' medical evidence was admissible, as the submissions of the injured plaintiff's treating doctors were both affirmed, and defendants' expert, Dr. Montalbano, specifically referenced the unaffirmed MRI reports and relied on the results therein. Nevertheless, defendants established prima facie entitlement to judgment that the injured plaintiff did not sustain a "serious injury" (Insurance Law § 5102[d]) by submitting expert affirmations that found no medical evidence of recent trauma on the patient's diagnostic films and reported normal ranges of motion in all tested body areas by specifying the tests they used to arrive at the measurements, and concluding that the injuries resolved without permanency (see DeJesus v Paulino, 61 AD3d 605 [2009]). The affirmation of defendants' radiologist, Dr. Eisenstadt — who stated that dessication along the spine "involves a drying out of [d]isc material which is a degenerative process greater than three months in origin. It could not have occurred in the time interval between examination and injury, and it is located at the most common levels in the population for degenerative disc disease to occur" — was sufficient to establish defendants' prima facie entitlement to summary judgment.
Defendants made a prima facie showing that plaintiff did not sustain a 90/180-day injury (§ 5102[d]); absent evidence sufficient to raise an issue of fact as to causation, this claim lacks merit (see Valentin v Pomilla, 59 AD3d 184, 186-187 [2009]). The fact that the injured plaintiff may have missed more than 90 days of work is not determinative of this claim (Ortiz v Ash Leasing, Inc., 63 AD3d 556, 557 [2009]), and there is no evidence in the record suggesting that he was prevented from performing substantially all of the material acts that constituted his usual and customary daily activities for 90 of the 180 days following the accident (see Uddin v Cooper, 32 AD3d 270, 271 [2006], lv denied 8 NY3d 808 [2007]).
Plaintiffs failed to meet the consequent burden of demonstrating serious injuries as defined in the statute (Franchini v Palmieri, 1 NY3d 536 [2003]), since both of the treating physicians failed to address the degenerative condition noted by both of defendants' experts (see Valentin, 59 AD3d at 186). Dr. Montalbano affirmed that absent any other detailed evidence, the injured plaintiff's degenerative condition was consistent with his age, occupation and comorbid condition of being overweight; at the very least, this warranted some kind of rebuttal on plaintiffs' behalf (cf. June v Akhtar, 62 AD3d 427 [2009]).


Acosta v. Alexandre
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellant.
Arze & Mollica, LLP, Brooklyn, N.Y. (Raymond J. Mollica of
counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated February 26, 2009, as denied those branches of his motion which were for summary judgment dismissing the plaintiff's claims of serious injury under the permanent loss, permanent consequential limitation of use categories of Insurance Law § 5102(d), and significant limitation of use on the ground that the plaintiff did not sustain any such serious injuries within the meaning of that statute.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendant's motion which were for summary judgment dismissing the plaintiff's claims of serious injury under the permanent loss, permanent consequential limitation of use, and significant limitation of use categories of Insurance Law § 5102(d) on the ground that the plaintiff did not sustain any such serious injuries within the meaning of that statute.
The defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact.
The affirmation of Dr. Mark S. McMahon, one of the plaintiff's treating physicians, was insufficient to raise a triable issue of fact since he noted only an insignificant limitation in the plaintiff's left knee one month after the subject accident (see Trotter v Hart, 285 AD2d 772; Cabri v Myung-SooPark, 260 AD2d 525; Waldman v Dong Kook Chang, 175 AD2d 204), and set forth no quantified range-of-motion findings or a qualitative assessment of the plaintiff's left knee on his recent examination of the plaintiff (see Toure v Avis Rent A Car Sys., 98 NY2d at 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 medical records of Dr. Jon Greenfield concerning the plaintiff failed to raise an issue of fact. Those records merely noted 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 noted normal range of motion in the left knee on the two occasions Dr. Greenfield tested that knee (see Djetoumani v Transit, Inc., 50 AD3d 944).
The magnetic resonance imaging report of Dr. Jacob Lichy concerning the plaintiff's left knee, on its own, was insufficient to raise a triable issue of fact. That report merely noted the existence of a partial tear of the plaintiff's anterior cruciate ligament. The mere existence of a tear in a ligament is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration (see Su Gil Yun v Barber, 63 AD3d 1140, 1142).
The plaintiff's affidavit also failed to raise a triable issue of fact (see Luizzi-Schwenk v Singh, 58 AD3d 811; Sealy v Riteway-1, Inc., 54 AD3d 1018).
Chiara v. Dernago


Edmond C. Chakmakian, P.C., Hauppauge, N.Y. (Anne Marie
Caradonna of counsel), for appellants.
Mulholland, Minion & Roe, Williston Park, N.Y. (Ronald J.
Morelli of counsel), for respondent
Sean P. Dernago.
Martyn, Toher & Martyn, Mineola, N.Y. (Frank P. Toher of
counsel), for respondent Connecticut
Shellfish Co.

DECISION & ORDER
In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Mahon, J.), dated October 30, 2008, which granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed, on the law, with one bill of costs payable to the plaintiffs by the defendants appearing separately and filing separate briefs, and the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) are denied.
Contrary to the Supreme Court's determination, both of the defendants failed to meet their prima facie burdens of showing that neither plaintiff sustained 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 their separate motions, both defendants relied largely on the same submissions, which included the affirmed medical reports of an orthopedic surgeon who examined each plaintiff. These reports were insufficient to sustain the defendants' respective prima facie burdens. Although the surgeon noted that the plaintiff Venetia K. Chiara had full range of motion in the cervical and lumbar regions "to all directions," and that the plaintiff Nicholas Chiara's cervical range of motion was "normal," he failed to set forth what objective testing he did in order to arrive at those conclusions (see Mannix v Lisi's Towing Serv., Inc., 67 AD3d 977; Smith v Quicci, 62 AD3d 858; Giammalva v Winters, 59 AD3d 595; Stern v Oceanside School Dist., 55 AD3d 596; Valdes v Timberger, 41 AD3d 836; Cedillo v Rivera, 39 AD3d 453; McLaughlin v Rizzo, 38 AD3d 856). The remaining medical reports submitted by the defendants were also insufficient because the physicians who prepared them failed to compare their findings to what is normal (see Wallace v Adam Rental Transp., Inc., 68 AD3d 857; Page v Belmonte, 45 AD3d 825, 826; Malave v Basikov, 45 AD3d 539, 540; Fleury v Benitez, 44 AD3d 996), failed to set forth the objective tests employed to arrive at their conclusions, and/or did not address all the injuries alleged by the plaintiffs.
Since the defendants failed to meet their respective prima facie burdens, it is unnecessary to decide whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see Mannix v Lisi's Towing Serv., Inc., 67 AD3d 977; Smith v Quicci, 62 AD3d 858; Giammalva v Winters, 59 AD3d 595; Stern v Oceanside School Dist., 55 AD3d 596; Coscia v 938 Trading Corp., 283 AD2d 538).


Maldonado v. Piccirilli
Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C.,
Syosset, N.Y. (Anton Piotroski of counsel), for respondent James
A. Piccirilli.
Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola, N.Y.
(Jonathan A. Dachs of counsel), for
respondent Jorge Manuel DaSilva.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Kerins, J.), dated September 12, 2008, which granted the motion of the defendant Jorge Manuel DaSilva, and the separate motion of the defendant James A. Piccirilli, for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with one bill of costs.
In opposition to the defendants' respective prima facie showings of their entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact as to whether she sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. The plaintiff alleged that the injuries to her face and nose sustained in the accident constituted a "significant disfigurement" and, therefore, qualified as a serious injury within the meaning of Insurance Law § 5102(d). Contrary to the plaintiff's contention, however, the photographs she submitted in opposition to the defendants' motions refute the claim that a reasonable person viewing the plaintiff's face would, as a result of the remnants of the injury, regard it as unattractive or objectionable, or as the object of pity and scorn (see Lynch v Iqbal, 56 AD3d 621; Sirmans v Mannah, 300 AD2d 465; Loiseau v Maxwell, 256 AD2d 450; Edwards v DeHaven, 155 AD2d 757). Accordingly, the Supreme Court properly granted the defendant's respective motions for summary judgment dismissing the complaint insofar as asserted against them.


Falco v. Allstate Insurance Company
Appeal and cross appeal from a judgment and order (one paper) of the Supreme Court, Monroe County (John J. Ark, J.), entered September 12, 2008 in a personal injury action. The judgment and order granted in part and denied in part defendant's motion to dismiss the complaint.

CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (KRISTEN B. DEGNAN OF COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT.
RICHARD G. VOGT P.C., ROCHESTER (LINDA J. VOGT OF COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.


It is hereby ORDERED that the judgment and order so appealed from is unanimously modified on the law by granting the motion in its entirety and dismissing the complaint and as modified the judgment and order is affirmed without costs.
Memorandum: Even accepting all of the facts alleged by plaintiff in his complaint as true and according him the benefit of every favorable inference, as we must in the context of defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (see Leon v Martinez, 84 NY2d 83, 86-87; Kumar v American Tr. Ins. Co., 49 AD3d 1353, 1354), we conclude that Supreme Court properly granted that part of defendant's motion seeking dismissal of the cause of action alleging the violation of General Business Law § 349. Plaintiff failed to allege that "the acts or practices [complained of] have a broader impact on consumers at large" and thus failed to state a cause of action for the violation of that statute (Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25). We agree with defendant, however, that the court erred in denying that part of its motion seeking dismissal of the breach of contract cause of action, thereby granting the motion in its entirety. Plaintiff failed to allege facts sufficient to establish the existence of any agreement between the parties or between defendant and plaintiff's insurer. Thus, plaintiff failed to state a cause of action for breach of contract, inasmuch as "no contract of any kind exists between plaintiff and defendant and there is no recognized theory upon which defendant . . . might be held liable to plaintiff, as a third-party beneficiary" (Area Masonry v Dormitory Auth. of State of N.Y., 64 AD2d 810, 811). We therefore modify the judgment and order accordingly.


McLaughlin v. Midrox Insurance Company
Appeal from a judgment of the Supreme Court, Ontario County (William F. Kocher, A.J.), entered March 3, 2009 in a personal injury action. The judgment, inter alia, directed defendant Midrox Insurance Company to pay plaintiffs the sum of $1 million.


TOWNE, RYAN & PARTNERS, PC, ALBANY (AMANDA R. STERN OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAELS & SMOLAK, P.C., AUBURN (MICHAEL G. BERSANI OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
JONES AND SKIVINGTON, GENESEO (PETER K. SKIVINGTON OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.


It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking a determination that defendant Midrox Insurance Company (Midrox) was obligated under a farmowner's insurance policy issued to the remaining defendants, Ronald D. Blodgett and David J. Blodgett, doing business as the Blodgett Brothers Partnerships (hereafter, Blodgett defendants), to indemnify the Blodgett defendants in the underlying personal injury action and requesting judgment against Midrox in the amount of $1 million. In the underlying personal injury action, plaintiffs sought damages from the Blodgett defendants for injuries sustained by plaintiff Charles R. McLaughlin when the motorcycle he was operating collided with a pickup truck operated by Ronald Blodgett. Midrox disclaimed coverage for the accident on the ground that the accident occurred off the insured premises while Blodgett was operating a vehicle subject to motor vehicle registration. The underlying action ultimately settled, and judgment was entered against the Blodgett defendants in the amount of $1 million. Neither Midrox nor the Blodgett defendants, however, responded to plaintiffs' demand for payment pursuant to Insurance Law § 3420 [*2](a) (2).
Plaintiffs moved for summary judgment on the complaint, and Midrox cross-moved for summary judgment dismissing the complaint on the ground that it properly disclaimed coverage. In appeal No. 1, Midrox appeals from an order granting plaintiffs' motion in part and denying its cross motion in its entirety. The court determined that the pickup truck was registered as an agricultural truck pursuant to Vehicle and Traffic Law § 401 (7) (E) (2) and was properly operated on public highways only for the purposes set forth in that subdivision (see § 401 [7] [E] [3]), but the court further determined that there was an issue of fact whether the accident occurred on insured premises. In appeal No. 2, Midrox appeals from a subsequent order pursuant to which the court determined following a hearing that the policy provides coverage for the accident and that Midrox shall pay plaintiffs the sum of $1 million. We note that, in appeal No. 2, Midrox appeals from the order rather than the subsequent judgment. Nevertheless, we exercise our discretion to treat the notice of appeal as valid and deem the appeal as taken from the judgment (see Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988; see also CPLR 5520 [c]). We further note that the order in appeal No. 1 is subsumed in the final judgment in appeal No. 2, and thus the appeal by Midrox from the order in appeal No. 1 must be dismissed (see Hughes, 140 AD2d 988; Chase Manhattan Bank, N.A. v Roberts & Roberts, 63 AD2d 566, 567; see also CPLR 5501 [a] [1]).
We conclude that the court properly determined that the farmowner's policy provided coverage for the subject accident. The incidental liability provisions of the policy cover liability for bodily injury and property damage that "occurs on the insured premises and results from the ownership, maintenance, use, loading or unloading of . . . motorized vehicles not subject to motor vehicle registration because of their type or use . . . ." Pursuant to the policy, the "[i]nsured premises" include the Blodgett defendants' main farm as identified in the "Described Location" section as well as "any premises used . . . in connection with the described location," the "approaches and access ways immediately adjoining the insured premises," and "other land [the insured] use[s] for farming purposes . . . ."
Midrox contends that its policy does not provide coverage because the accident occurred on a public roadway while Ronald Blodgett was driving a pickup truck. We reject that contention. In Nationwide Mut. Ins. Co. v Erie & Niagara Ins. Assn. (249 AD2d 898), we interpreted a farmowner's insurance policy that was substantially similar, if not identical, to the Midrox policy. There, the insured's employee was involved in an accident on a public roadway while driving a pickup truck between two farms operated by the insured (id. at 898). We further concluded that the various definitions of "insured premises" were "broad enough to include public roadways used by the insured to transport workers and materials between the insured's farms" (id.). Here, the record establishes that, at the time of the accident, Ronald Blodgett was driving the pickup truck between the Blodgett defendants' main farm and leased farm property, which were approximately nine miles from each other.
We further reject the contention of Midrox that our decision in Nationwide Mut. Ins. Co. does not apply because the pickup truck was registered as an agricultural truck (Vehicle and Traffic Law § 401 [7] [E]) rather than as a farm vehicle (§ 401 [13]). The Blodgett defendants had the option of registering the truck as either a farm vehicle or an agricultural truck, and the fact that they elected to register the truck as an agricultural vehicle does not, in our view, deprive them of coverage under the policy inasmuch as the pickup truck was used exclusively for farm purposes and the accident occurred along the most direct route between the two farm parcels. Thus, the pickup truck was not subject to regular motor vehicle registration because of its exclusive use as a farm vehicle (see Nationwide Mut. Ins. Co., 249 AD2d at 898). [*3]
There is likewise no merit to the contention of Midrox that the term "premises" within the meaning of the policy is not intended to encompass public roadways. That restrictive interpretation is not supported by the language of the policy, which neither defines "premises" nor excludes public roadways from its purview (cf. Estate of Belmar v County of Onondaga, 147 AD2d 900, lv denied 74 NY2d 612). Construing the policy in favor of the insureds and resolving all ambiguities in the insureds' favor, as we must (see United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232), we conclude that the accident occurred on the "insured premises" within the meaning of one or more of the policy's alternative definitions of that phrase (see Nationwide Mut. Ins. Co., 249 AD2d at 898).


Gallagher v. Republic Franklin Ins. Co.

Appeal and cross appeal from an order of the Supreme Court, Wayne County (John B. Nesbitt, A.J.), entered December 12, 2008. The order denied the motion of defendant for summary judgment.


BROWN & KELLY, LLP, BUFFALO (JOSEPH M. SCHNITTER OF COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT.
FARACI LANGE, LLP, ROCHESTER (MATTHEW F. BELANGER OF COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT. It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and judgment is granted in favor of defendant as follows:


It is ADJUDGED and DECLARED that defendant is not obligated to provide supplementary uninsured motorist coverage to plaintiff.
Memorandum: Plaintiff, a volunteer firefighter, commenced this action seeking a declaration that defendant is obligated to provide him with supplementary uninsured motorist (SUM) coverage under a policy issued by defendant to the volunteer fire company. In relevant part, the SUM endorsement defined an insured as "[y]ou, as the named insured" and "[a]ny other person while occupying . . . [a] motor vehicle insured for SUM under this policy." The SUM endorsement also defined "occupying" as "in, upon, entering into, or exiting from a motor vehicle." Supreme Court denied defendant's motion for summary judgment. The court agreed with defendant that plaintiff was not a named insured under the policy, but nevertheless determined that there was an issue of fact whether plaintiff was covered under the policy as a person occupying the truck. Defendant now appeals, and plaintiff cross-appeals.
Addressing first plaintiff's cross appeal, we conclude that the court properly determined that plaintiff is not a named insured under the policy. The named insured was the fire company, and thus "[y]ou" in the SUM endorsement referred only to the fire company and did not, as plaintiff contends, also refer to an employee of the company (see Buckner v Motor Veh. Acc. Indem. Corp., 66 NY2d 211, 214; Matter of Coregis Ins. Co. v Miceli, 295 AD2d 511). Addressing next defendant's [*2]appeal, we agree with defendant that the court erred in determining that there is an issue of fact whether plaintiff was covered under the policy as a person occupying the truck. At the time of the accident, plaintiff had exited the fire company's truck and was directing traffic away from the scene of a motor vehicle accident. Plaintiff's conduct in directing traffic was "unrelated to the [truck]" and was not incidental to his exiting it (Matter of Travelers Ins. Co. [Youdas], 13 AD3d 1044, 1045). Thus, under the facts of this case, plaintiff was not "occupying" the truck within the meaning of that term in the policy (see Matter of Martinez, 295 AD2d 277, 278; Coregis Ins. Co., 295 AD2d at 511).


Lehigh Construction Group, Inc. v. Lexington Insurance Company
Appeal from an order of the Supreme Court, Erie County (Timothy J. Drury, J.), entered November 20, 2008 in a declaratory judgment action. The order, insofar as appealed from, denied the motion of defendant Lexington Insurance Company for a declaration that it is not obligated to defend or indemnify plaintiff in the underlying action.


GOLDBERG SEGALLA LLP, BUFFALO (TONI L. FRAIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
BROWN & KELLY, LLP, BUFFALO (RENATA KOWALCZUK OF COUNSEL), FOR PLAINTIFF-RESPONDENT. It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is granted and judgment is granted in favor of defendant Lexington Insurance Company as follows:


It is ADJUDGED and DECLARED that defendant Lexington Insurance Company is not obligated to defend or indemnify plaintiff in the underlying action.
Memorandum: Defendant John R. Sherk was injured in January 2004 when he fell from a height during the course of performing construction work on a church owned by the remaining defendants, with the exception of defendant Lexington Insurance Company (Lexington). Sherk's employer had been hired by plaintiff to perform construction and renovation services on the church. In January 2007, Sherk commenced a Labor Law and common-law negligence action (hereafter, underlying action) seeking damages for the injuries he sustained when he fell in January 2004. Plaintiff was served with Sherk's summons and complaint by the Secretary of State on January 12, 2007 and received notice of such service by mail on February 23, 2007. Plaintiff was named as a defendant in the underlying action as an additional insured under a commercial general liability policy issued to plaintiff's employer by Lexington. Pursuant to the terms of that policy, plaintiff was required to notify Lexington of an occurrence or any claim made or suit brought against any insured "as soon as practicable." It is undisputed that plaintiff did not notify Lexington of the underlying action until April 17, 2007, which was the first notice to Lexington of both the occurrence and the claim. Plaintiff did not [*2]transmit a copy of the complaint to Lexington until May 8, 2007.
By letter dated May 15, 2007, Lexington notified plaintiff that it would not defend or indemnify plaintiff in the underlying action based upon the failure of plaintiff to provide notice of its receipt of the complaint as soon as practicable. Lexington stated in a letter to plaintiff dated June 8, 2007 that Lexington had discovered that plaintiff provided notice of the occurrence to its excess carrier on January 16, 2007, "which further supports that notice to Lexington . . . three months later was indeed late." Plaintiff thereafter commenced this action seeking a declaration that Lexington is obligated to defend and indemnify it in the underlying action. Lexington served an answer to the complaint and moved, in essence, for a declaration that it is not obligated to defend or indemnify plaintiff in the underlying action on the ground that the "three-month delay is unreasonable as a matter of law." Supreme Court denied the motion based on its determination that there are issues of fact whether plaintiff's notice was timely. We reverse the order insofar as appealed from.
In opposing the motion, plaintiff contended that its delay was based upon a reasonable belief in nonliability because it was only a "pass through" defendant with respect to the underlying action. Although a good faith belief in nonliability may excuse a failure to provide timely notice of an occurrence (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743), here there was a failure to provide timely notice of the actual commencement of the underlying action. We thus conclude under these circumstances that, as a matter of law, plaintiff's assumption that other parties would bear the ultimate responsibility for Sherk's injuries is an insufficient excuse for failing to provide Lexington with timely notice of the fact that the underlying action had been commenced (see Philadelphia Indem. Ins. Co. v Genesee Val. Improvement Corp., 41 AD3d 44, 47).
Finally, there is no merit to plaintiff's further contention that Lexington's disclaimer was untimely. Lexington conducted its investigation of the matter and issued its disclaimer within four weeks of its first notice of Sherk's accident and the underlying action. We thus conclude under these circumstances that Lexington's disclaimer was timely as a matter of law (see Sevenson Envtl. Servs., Inc. v Sirius Am. Ins. Co., 64 AD3d 1234, 1235).


Hartman-Jweid v. Overbaugh
Appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.), entered December 3, 2008 in a personal injury action. The order granted the motion of defendant for summary judgment and dismissed the complaint.

JAMES G. DISTEFANO, SYRACUSE, FOR PLAINTIFF-APPELLANT.
MACKENZIE HUGHES LLP, SYRACUSE (RYAN T. EMERY OF COUNSEL), FOR DEFENDANT-RESPONDENT.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when her vehicle collided with a vehicle driven by defendant. We conclude that Supreme Court properly granted defendant's motion seeking summary judgment dismissing the complaint, which sought damages for both serious injury (see Insurance Law § 5102 [d]), and loss of earnings relating to injuries that did not constitute serious injuries. Defendant met his burden of establishing that plaintiff did not sustain a serious injury under the three categories alleged by plaintiff in the complaint, as amplified by the bill of particulars, i.e., permanent consequential limitation of use, significant limitation of use and 90/180-day categories, and plaintiff failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562).
In support of his motion, defendant submitted the affirmation and report of an orthopedic surgeon who examined plaintiff at his request. Defendant's expert concluded, based on his examination of plaintiff and his review of her medical records, that the only objective medical findings with respect to any alleged injury related to a preexisting degenerative condition of the spine. "[W]ith persuasive evidence that plaintiff's alleged pain and injuries were related to a preexisting condition, plaintiff had the burden to come forward with evidence addressing defendant's claimed lack of causation" and, here, plaintiff failed to meet that burden (Carrasco v Mendez, 4 NY3d 566, 580; see Lux v Jakson, 52 AD3d 1253). Although plaintiff submitted the affidavits of a chiropractor and her treating physician in opposition to the motion,neither affidavit addressed the conclusion of defendant's expert that the changes in plaintiff's spine were degenerative in nature (see Marsh v City of New York, 61 AD3d 552; Valentin v Pomilla, 59 AD3d 184, 186; Lux, 52 AD3d 1253).
Defendant further established that the additional non-permanent injuries alleged in the complaint, as amplified by the bill of particulars, were not causally related to the accident and thus were insufficient to establish that plaintiff sustained a serious injury in the accident under the 90/180-day category. Indeed, the affirmed report of defendant's expert indicates that those injuries lacked a physiological base and that any limitation in plaintiff's activities was self-imposed (see Marsh, 61 AD3d 552). The expert affidavits submitted by plaintiff in opposition to the motion address only her alleged spinal injuries, which as noted were related to a preexisting degenerative condition, and thus plaintiff failed to raise a triable issue of fact with respect to the 90/180-day category.
Finally, we reject the contention of plaintiff that the court erred in granting that part of defendant's motion concerning her claim for loss of earnings that continue beyond the three-year statutory period (see generally Insurance Law § 5102 [a] [2]). Although a plaintiff need not sustain a serious injury to support such a claim (see Colvin v Slawoniewski, 15 AD3d 900; Tortorello v Landi, 136 AD2d 545), defendant met his initial burden by establishing that plaintiff did not sustain any injury that was causally related to the accident and that any limitation on plaintiff's activities was self-imposed, and plaintiff failed to raise a triable issue of fact with respect to that claim.


McHale v. Anthony
Smith Mazure Director Wilkins Young & Yagerman, P.C.,
New York (Emeka Nwokoro of counsel), for appellants.
Nicoletti, Gonson, Spinner & Owen, LLP, New York (Jamie T.
Packer of counsel), for respondents.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 26, 2009, which, in an action for personal injuries sustained in an accident between plaintiffs the McHale's vehicle and a truck operated by defendant Anthony and leased to Anthony's employer, defendant Empire Beef Co. (collectively Empire), and allegedly owned by defendant Ryder Truck Rental, Inc., granted Empire's motion to dismiss the complaint and all cross claims as against it only to the extent of limiting any recovery by plaintiff Liberty Mutual Insurance Company on its subrogation claim to $725,000, unanimously affirmed, without costs.
We reject Empire's argument that the McHales' election of arbitration to resolve their claim for uninsured motorist benefits as against their insurer, Liberty, and the ultimate settlement of that claim, preclude their maintenance of this action against the alleged tortfeasors. Roggio v Nationwide Mut. Ins. Co. (66 NY2d 260 [1985]), relied on by Empire, held only that the denial of medical benefits in an arbitration award precluded the claimant from litigating in the courts his right to reimbursement for later medical bills arising out of the same accident. Furthermore, the settlement agreement shows that the McHales and Liberty intended that any future recovery by the McHales in a subsequent action against a third party would be assigned to Liberty in an amount up to $725,000. The agreement contains no restrictions on future litigation against third parties or the amount of a future award, and it does not address issues of liability (see Brink v Killeen, 48 AD2d 823 [1975]).
Empire's claim that plaintiffs lack standing to maintain the action by virtue of the settlement with Liberty was not raised in their answer and therefore was waived (CPLR 3211[e]; see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242-243 [2007]); its claim of judicial estoppel is also unpreserved and without merit.


Progressive Casualty Ins. Co. v. Harco National Ins. Co.
Appeal from a judgment (denominated order) of the Supreme Court, Onondaga County (John C. Cherundolo, A.J.), entered January 16, 2009 in a declaratory judgment action. The judgment, inter alia, granted the motion of plaintiff for summary judgment.


SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (LAURENCE F. SOVIK OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
LEVENE GOULDIN & THOMPSON, LLP, BINGHAMTON (DAVID F. MCCARTHY OF COUNSEL), FOR PLAINTIFF-RESPONDENT. It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs, the motion is denied, the declarations are vacated, the cross motion is granted, and judgment is granted in favor of defendants Harco National Insurance Company and Burdick Pontiac-GMC as follows: It is ADJUDGED and DECLARED that plaintiff is obligated to provide primary coverage to defend and indemnify defendants Jason Webb and Justin Webb in the underlying action, and


It is further ADJUDGED and DECLARED that defendant Harco National Insurance Company is not obligated to defend or indemnify defendants Jason Webb or Justin Webb in the underlying action.
Memorandum: Defendant Jason Webb borrowed a loaner vehicle from defendant Burdick Pontiac-GMC (Burdick) while his own vehicle was being repaired by the car dealership. His son, defendant Justin Webb (collectively, Webb defendants), was driving the loaner vehicle when he collided with a vehicle operated by Andrea Walker. Walker thereafter commenced the underlying action against Justin Webb and Burdick seeking damages for injuries that she allegedly sustained in the accident.
The loaner vehicle was insured under a garage liability policy issued to Burdick by defendant Harco National Insurance Company (Harco), and the Webb defendants were insured under a family motor vehicle policy issued by plaintiff, Progressive Casualty Insurance Company (Progressive). The Harco policy contained what is commonly known as a "no liability clause," which provided coverage to a customer of its insured only if the customer "[h]as no other available insurance (whether primary, excess or contingent)" or "[h]as other available insurance (whether primary, excess or contingent) less than the compulsory or financial responsibility law limits where the covered auto' is principally garaged." The Progressive policy contained an "excess" clause, which stated that any insurance provided for a vehicle, other than a covered vehicle, "will be excess over any other valid and collectible insurance."
Progressive commenced this action seeking a declaration that Harco is obligated to provide primary coverage to defend and indemnify the Webb defendants in the underlying action, and Harco asserted a counterclaim seeking a declaration that Progressive is the primary insurance carrier for the Webb defendants and thus is obligated to defend and indemnify them to the limits of its policy. We conclude that Supreme Court erred in granting the motion of Progressive for summary judgment declaring that Harco is obligated to provide primary coverage and that any insurance coverage available to the Webb defendants from Progressive is excess coverage. Rather, the court should have granted the cross motion of Harco and Burdick for summary judgment declaring that Progressive is the primary insurer and that Harco is not obligated to defend or indemnify the Webb defendants in the underlying action.
We agree with Harco and Burdick that the Webb defendants are excluded from coverage pursuant to the express terms of the Harco policy. Under the Harco policy, a customer is excluded from the definition of an "insured" unless the customer possesses insufficient insurance to meet the minimum requirements set forth in New York's financial responsibility laws. In granting the motion of Progressive, the court relied on the general rule that, "[i]n cases in which one insurance policy has a no liability clause and the other insurance policy has an excess clause, . . . the no liability clause is not given effect" (Kipper v Universal Underwriters Group, 304 AD2d 62, 65; see Utica Mut. Ins. Co. v Travelers Ins. Co., 213 AD2d 983, 984). That was error, inasmuch as "[a]n exception to the general rule arises [where, as here,] the no liability clause expressly provides that other available insurance' includes both primary and excess insurance coverage. In that case, the no liability clause is given effect and the excess insurance carrier is the primary carrier" (Kipper, 304 AD2d at 65; see Mills v Liberty Mut. Ins. Co., 36 AD2d 445, affd 30 NY2d 546;Davis v De Frank, 33 AD2d 236, 241, affd 27 NY2d 924). Here, the Harco policy specifically provides that "other available insurance" includes "primary, excess or contingent insurance" (emphasis added), and it is undisputed that the liability limits contained in the Progressive policy exceed the minimum statutory requirements. Thus, the exception to the general rule applies, the no liability clause contained in the Harco policy is given effect, and Progressive is the primary insurer for the Webb defendants (see Davis, 33 AD2d at 241).
There is no merit to Progressive's alternative contention that the "Other Insurance" clause set forth in the Harco policy renders Harco liable for coverage in this case. Contrary to the contention of Progressive, that clause does not in fact render Harco liable to provide insurance coverage with respect to all vehicles owned by Burdick. Rather, it simply clarifies that, where coverage exists under the substantive provisions of the Harco policy, coverage is primary with respect to all vehicles owned by Burdick and excess with respect to non-owned vehicles.
Finally, because the Harco policy does not provide coverage for the Webb defendants, there is no merit to Progressive's contention that Harco had a duty to provide a timely disclaimer for the subject accident (see State Farm Mut. Auto. Ins. Co. v John Deere Ins. Co., 288 AD2d 294, 297). Thus, even assuming, arguendo, that the written disclaimer provided by Harco was insufficient, we conclude that "the failure to disclaim coverage does not create coverage which the policy was not written to provide" (Zappone v Home Ins. Co., 55 NY2d 131, 134).
We thus conclude that the Progressive policy provides primary coverage for the subject accident and that Harco is not obligated to defend or indemnify the Webb defendants in the underlying action.


Short v. Progressive Northwestern Ins. Co.
Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County (Thomas G. Leone, A.J.), entered December 12, 2008 in a declaratory judgment action. The judgment, among other things, declared that defendant Progressive Northwestern Insurance Company is obligated to defend and indemnify plaintiff in the underlying personal injury action.


LAW OFFICES OF DANIEL GUARASCI, WILLIAMSVILLE (PHYLISS A. HAFNER OF COUNSEL), FOR DEFENDANT-APPELLANT.
SAMUEL P. GIACONA, AUBURN, FOR PLAINTIFF-RESPONDENT.
MICHAELS & SMOLAK, P.C., AUBURN (MICHAEL G. BERSANI OF COUNSEL), FOR DEFENDANT-RESPONDENT.


It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by denying the cross motion and vacating the declaration and as modified the judgment is affirmed without costs.
Memorandum: Plaintiff commenced this declaratory judgment action seeking a declaration that defendant Progressive Northwestern Insurance Company (Progressive) is obligated to defend and indemnify him in connection with a motor vehicle accident that occurred when plaintiff was driving a vehicle owned by his girlfriend's father. Defendant Jeffrey Sussman, a passenger in that vehicle, allegedly sustained a serious brain injury in the accident. At the time of the accident, plaintiff was a named insured on an automobile liability policy issued to his grandmother by Progressive.
Supreme Court properly denied the motion of Progressive seeking a declaration that Progressive has no duty to defend or indemnify plaintiff based upon the failure of plaintiff to satisfy the notice requirement of the policy. There are triable issues of fact when notice of the accident was provided to Progressive on plaintiff's behalf and whether such notice was given "within a reasonable time under all the circumstances" (Deso v London & Lancashire Indem. Co. of Am., 3 NY2d 127, 129; see Allstate Ins. Co. v Marcone, 29 AD3d 715, 716-717, lv dismissed 7 NY3d 841). With respect to Sussman, we conclude that the court erred in granting the cross motion because the reasonableness of his delay and the sufficiency of his excuse in notifying Progressive of the accident based on his status as an injured party present issues of fact (see Insurance Law § 3420 [a] [3]; Allstate Ins. Co., 29 AD3d at 717). We therefore modify the judgment accordingly.
Robert Snyder v Allstate Insurance Company

Robert Snyder, New York, N.Y., appellant pro se.

Lewis Johs Avallone Aviles, LLP, Melville, N.Y. (Daniel A.
Bartoldus of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for breach of a homeowner's insurance policy, the plaintiffs appeal from (1) an order of the Supreme Court, Westchester County (Donovan, J.), entered March 26, 2008, (2) an order of the same court entered May 6, 2008, which granted the defendant's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint, and (3) an order of the same court entered July 7, 2008, which denied the plaintiffs' motion, in effect, for leave to reargue their opposition to the defendant's motion.
ORDERED that the appeal from the order entered March 26, 2008, is dismissed as abandoned; and it is further,
ORDERED that the appeal from the order entered July 7, 2008, is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the order entered May 6, 2008, is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the respondent.
"A party seeking dismissal on the ground that its defense is founded on documentary evidence under CPLR 3211(a)(1) has the burden of submitting documentary evidence that resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim'" (Sullivan v State of New York, 34 AD3d 443, 445, quoting Nevin v Laclede Professional Prods., 273 AD2d 453, 453; see GuideOne Specialty Ins. Co. v Admiral Ins. Co., 57 AD3d 611, 613; Cohen v Nassau Educators Fed. Credit Union, 37 AD3d 751, 752).
Here, the documentary evidence submitted by the defendant in support of its motion conclusively established that the instant action was barred because it was commenced after the two-year limitation period contained in the subject insurance policy had expired (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967-968; Neary v Nationwide Mut. Fire Ins. Co., 17 AD3d 331). Thereupon,"the burden shifted to the plaintiffs to aver evidentiary facts establishing that the case at hand falls within [an exception to the limitations period]" (Minichello v Northern Assur. Co. of Am., 304 AD2d 731, 732). Exceptions exist where a defendant insurer has "engaged in a course of conduct which lulled [the plaintiffs] into inactivity in the belief that their claim would ultimately be processed" or has induced the plaintiffs "by fraud, misrepresentation or deception to refrain from commencing a timely action" (Minichello v Northern Assur. Co. of Am., 304 AD2d at 732 [internal quotation marks omitted]; see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d at 967-968; Neary v Nationwide Mut. Fire Ins., Co., 17 AD3d 331).
In opposition to the motion, the plaintiffs failed to demonstrate any basis for estopping the defendant from relying upon the contractual limitations period. Accordingly, the Supreme Court properly granted the defendant's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint (see Dimmick v New York Prop. Ins. Underwriting Assn., 57 AD3d 602, 603; Minichello v Northern Assur. Co. of Am., 304 AD2d 731).
The appeal from the order entered March 26, 2008, must be dismissed as abandoned, as the plaintiffs do not seek reversal of any portion of that order in their brief (see Sirma v Beach, 59 AD3d 611, 614; Bibas v Bibas, 58 AD3d 586).
The plaintiffs' remaining contentions are without merit.
SKELOS, J.P., DICKERSON, ENG and SGROI, JJ., concur.


Phoenix Life Insurance Company v The Irwin Levinson Insurance Trust II
Dorsey & Whitney LLP, New York (Patrick J. Feeley and
Christopher G. Karagheuzoff of counsel), for appellant-
respondent.
Susman Godfrey L.L.P, New York (Rebecca S. Tinio of
counsel), for Life Product Clearing LLC, respondent-appellant, and
The Irwin Levinson Insurance Trust II and Jonathan S. Berck,
respondents-respondents.
Rosenfeld & Kaplan, LLP, New York (Tab K. Rosenfeld of
counsel), for Lockwood respondents.
Order, Supreme Court, New York County (Carol Edmead, J.), entered June 1, 2009, which granted motions by the nonparty witnesses to quash certain subpoenas served by plaintiff, and order, same court and Justice, entered August 24, 2009, which denied without prejudice plaintiff's motion for leave to amend the pleadings, unanimously affirmed, without costs.
Plaintiff seeks rescission of a life insurance policy on the ground, inter alia, that the policy, which was procured by the insured Irwin Levinson, was immediately transferred into an irrevocable trust, and then, within days and prior to the payment of any premium by the insured, was transferred to unidentified third parties in exchange for payment of a substantial sum, was procured for the benefit of a "stranger investor" pursuant to a STOLI (stranger originated life insurance) arrangement, and was thus void for lack of an insurable interest under Insurance Law § 3205. Plaintiff sought documents from the nonparty witnesses with information on similarly structured transactions in which the STOLI participants had participated; the relationship among the STOLI participants; the STOLI participants' understanding, marketing and mutual correspondence with respect to STOLI policies and insurable interest requirements; financing, revenues and costs with respect to STOLI transactions; investigations and terminations that involved some insurable interest or STOLI concern; and the ownership, management, structure, creation and general business purpose of nonparty Life Product Clearing.
The court properly quashed the subpoenas as they related to the relationship among the alleged STOLI participants and a pattern of procuring policies pursuant to similar arrangements, inasmuch as such information would not prove whether the insured here intended to participate in a STOLI scheme, and there is no indication that documents pertaining to policies other than the policy at issue here would be relevant to establish the insured's intent (Velez v Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d 104, 112 [2006]; Matter of Reuters Ltd. v Dow Jones Telerate, 231 AD2d 337, 342 [1997]). Even were there evidence of fraudulent intent in those documents, that evidence would relate to the intent of the unknown third parties, and not the intent of the insured.
The court did not abuse its discretion in denying plaintiff's motion to amend the complaint to add claims of fraud and conspiracy to commit fraud against the Lockwood and Life Product nonparties, in order to support the broad discovery previously denied, particularly since it did so without prejudice to renewal after discovery, given that the proposed amendment would entail extensive discovery into other policies that would further delay and unnecessarily complicate the case (see Long Is. Light. Co. v Century Indem. Co., 52 AD3d 383, 384 [2008]).


THOMPSON v MATHER

Appeal from an order of the Supreme Court, Oswego County (Norman W. Seiter, Jr., J.), entered October 27, 2008 in a medical malpractice action. The order, among other things, directed that plaintiff will not be entitled to take the videotaped depositions of two nonparty witnesses unless certain conditions were met.


MICHAELS & SMOLAK, P.C., AUBURN (MICHAEL G. BERSANI OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

BROWN & TARANTINO, LLC, BUFFALO (ANN M. CAMPBELL OF COUNSEL), FOR NONPARTY RESPONDENTS.


It is hereby ORDERED that the order so appealed from is unanimously reversed on the law with costs, the motion is granted and counsel for nonparty respondents is precluded from objecting during or otherwise participating in the videotaped depositions.
Memorandum: Plaintiff commenced this medical malpractice action alleging that defendants deviated from the standard of care in providing obstetrical and gynecological treatment by prescribing oral contraceptives when they knew or should have known based on plaintiff's medical and family history that the use of oral contraceptives as prescribed was contraindicated. In May 2004, plaintiff suffered an acute myocardial infarction, and she alleges that defendants' departure from the standard of care was a substantial factor in causing her injury and subsequent disability.
In preparation for trial, plaintiff's counsel arranged for nonparty respondents, plaintiff's treating cardiologists (hereafter, physicians), to provide testimony in advance of trial that would be videotaped and presented at trial in accordance with 22 NYCRR 202.15. The physicians were accompanied at the scheduled videotaping by counsel retained by their medical malpractice insurance carrier. During the videotaped trial testimony of nonparty respondent Dr. Rama Godishala, counsel for that physician interposed objections to, inter alia, form and relevance. Plaintiff's counsel objected to the participation by counsel during the videotaped trial testimony and the parties were unable to resolve the dispute. The videotaping therefore was suspended and plaintiff moved for an order "precluding . . . Dr. Godishala's counsel from objecting at the videotaped trial testimony except as to privileged matters or in the event that she were to deem questioning to be abusive or harassing."
In its order deciding the motion, Supreme Court directed that plaintiff and defendants are to "consider providing general releases to the [physicians] . . . with respect to their initial treatment of [plaintiff]" and that, if such releases are provided, plaintiff will "be entitled to have a videotaped deposition of [the physicians] during which deposition the attorneys for the [physicians] shall not be permitted to speak . . . ." The order further provided that, if the general releases are not provided, then the attorneys for the parties and the physicians "shall seek to work out ground rules for a non-party deposition" of the physicians. The order then provided that, if the attorneys are unable to "work out ground rules," plaintiff will not be entitled to take the videotaped depositions of the physicians and they "are to be subpoenaed to testify" at trial.
We agree with plaintiff that counsel for a nonparty witness does not have a right to object during or otherwise to participate in a pre-trial deposition. CPLR 3113 (c) provides that the examination and cross-examination of deposition witnesses "shall proceed as permitted in the trial of actions in open court." Although counsel for the physicians correctly conceded at oral argument of plaintiff's motion in Supreme Court that she had no right to object during or to participate in the trial of this action, she nevertheless asserted that she was entitled to object during nonparty depositions and videotaped deposition questioning. We cannot agree that there is such a distinction, based on the express language of CPLR 3113 (c). Indeed, we discern no distinction between trial testimony and pre-trial videotaped deposition testimony presented at trial. We note in addition that 22 NYCRR 202.15, which concerns videotaped recordings of civil depositions, refers only to objections by the parties during the course of the deposition in the subdivision entitled "Filing and objections" (see 22 NYCRR 202.15 [g] [1], [2]). We thus conclude that plaintiff is entitled to take the videotaped depositions of the physicians and that counsel for those physicians is precluded from objecting during or otherwise participating in the videotaped depositions.
Lastly, we note that the practice of conditioning the videotaping of depositions of nonparty witnesses to be presented at trial upon the provision of general releases is repugnant to the fundamental obligation of every citizen to participate in our civil trial courts and to provide truthful trial testimony when called to the witness stand. Contrary to nonparty respondents' contention, the fact that the statute of limitations has not expired with respect to a nonparty treating physician witness for the care that he or she provided to a
plaintiff provides no basis for such a condition.
Fidelity National Title Insurance Company v Regent Abstract Services, Ltd


Kleinman, Saltzman & Bolnick, P.C., New City (Caryn F.
Blaustein of counsel), for Fidelity National Title Insurance
Company, Commonwealth Land Title Insurance Company,
United General Title Insurance Company and Old Republic
National Title Insurance Company, appellants.
Feeney & Associates, PLLC, Hauppauge (Rosa M. Feeney of
counsel), for Sheila Ferrari, Rachal Ferrari, Maureen Cappelli,
Kathleen Delvecchio and Eileen Lutz, appellants.
Lally Mahon & Rooney LLP, New York (Christopher S.
Rooney of counsel), for New York Life Insurance Company,
respondent.
Judgment and order (one paper), Supreme Court, New York County (Edward H. Lehner, J.), entered January 12, 2009, which granted respondent New York Life Insurance Company's cross motion to dismiss the petition brought pursuant to CPLR 5225 seeking an order directing respondent to release to petitioners the full value of the life insurance policy covering decedent's life, owing to Regent Abstract Services, LTD., unanimously affirmed, without costs.
The IAS court correctly held that the subject insurance policy, which had lapsed for nonpayment of premiums, was not reinstated prior to decedent's death. The policy expressly required that the insured be alive at the time it received a past due premium in order for the policy to be reinstated. The policy lapsed on February 27, 2008. The insurer, New York Life Insurance Company, received the overdue premium payment on March 6, 2008; however, the decedent died in the interim, on March 3, 2008. Since a condition for reinstatement was not met, the policy could not be revived (see Scott v American Republic Life Ins. Co., 88 AD2d 949 [1982]).
Petitioners' and cross-petitioners' reliance on the "postal acceptance rule" for payment is misplaced because here the policy specifically required receipt while the insured was alive in order for the policy to be reinstated (compare Government Empls. Ins. Co. v Solaman, 157 Misc 2d 737 [1993]).
We have considered petitioners' and cross-petitioners' remaining contentions and find them unavailing.


Hadzihasanovic v 155 East 72nd Street Corporation
Garcia & Stallone, Melville, N.Y. (Karl Zamurs of counsel), for
appellants.
Hoey, King, Toker & Epstein (Mischel & Horn, P.C., New
York, N.Y. [Scott T. Horn], of counsel),
for respondents.


DECISION & ORDER
In an action to recover damages for personal injuries, the defendants 155 East 72nd Street Corporation and Wallack Management Co., Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Partnow, J.), dated December 8, 2008, as denied that branch of their motion which was for summary judgment on their cross claim insofar as asserted against the defendants Dale Hoffman and Stephen Hoffman for contractual indemnification, and granted that branch of the motion of those defendants which was for summary judgment dismissing that cross claim insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendants Dale Hoffman and her husband, Stephen Hoffman (hereinafter together the Hoffmans), purchased shares in a cooperative building located at 155 East 72nd Street (hereinafter the co-op building), and entered into a proprietary lease on an apartment. The co-op building was owned by the 155 East 72nd Street Corporation, a cooperative housing board (hereinafter 155 Corp.), and managed by Wallack Management Co., Inc. (hereinafter Wallack).
The Hoffmans hired a contractor to perform certain alterations to their apartment. To gain the approval of 155 Corp. and Wallack to commence the alterations, the Hoffmans submitted an alteration agreement.
The contractor hired a number of subcontractors. The plaintiff, Muhamed Hadzihasanovic, who worked for one of the subcontractors, allegedly was injured while working in the apartment. He commenced this action against, among others, 155 Corp., Wallack, and the Hoffmans.
155 Corp. and Wallack asserted, inter alia, a cross claim against the Hoffmans for contractual indemnification. Subsequently, the Hoffmans moved, inter alia, for summary judgment dismissing the cross claim of 155 Corp. and Wallack for contractual indemnification insofar as asserted against them. 155 Corp. and Wallack moved, inter alia, for summary judgment on their cross claim insofar as asserted against the Hoffmans for contractual indemnification based on the alteration agreement.
The Supreme Court denied that branch of the motion of 155 Corp. and Wallack which was for summary judgment on their cross claim insofar as asserted against the Hoffmans for contractual indemnification, and granted that branch of the Hoffmans' motion which was for summary judgment dismissing that cross claim insofar as asserted against them. The court reasoned that the alteration agreement was void pursuant to General Obligations Law § 5-321. We affirm the order insofar as appealed from.
The Hoffmans met their initial burden of demonstrating their prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557), by proffering the alteration agreement. The alteration agreement provided that it was made in connection with or collateral to the Hoffmans' lease of real property (see General Obligations Law § 5-321). A broad indemnification provision in a lease, such as the alteration agreement here, which is not limited to the lessee's acts or omissions, fails to make exceptions for the lessor's own negligence, and does not limit the lessor's recovery under the lessee's indemnification obligation to insurance proceeds, is unenforceable pursuant to General Obligations Law § 5-321 (see Colosi v RATL, LLC, 7 AD3d 558; Sanford v Woodner Co., 304 AD2d 813, 814; cf. Castano v Zee-Jay Realty Co., 55 AD3d 770, 772). In opposition, 155 Corp. and Wallack 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). Under these circumstances, the Supreme Court properly granted that branch of the Hoffmans' motion which was for summary judgment dismissing the cross claim of 155 Corp. and Wallack insofar as asserted against the Hoffmans for contractual indemnification, and properly denied that branch of the motion of 155 Corp. and Wallack which was for summary judgment on their cross claims insofar as asserted against the Hoffmans for contractual indemnification.
RIVERA, J.P., LEVENTHAL, BELEN and AUSTIN, JJ., concur.


Snyder v Allstate Insurance Company
Robert Snyder, New York, N.Y., appellant pro se.
Lewis Johs Avallone Aviles, LLP, Melville, N.Y. (Daniel A.
Bartoldus of counsel), for respondent.


DECISION & ORDER
In an action to recover damages for breach of a homeowner's insurance policy, the plaintiffs appeal from (1) an order of the Supreme Court, Westchester County (Donovan, J.), entered March 26, 2008, (2) an order of the same court entered May 6, 2008, which granted the defendant's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint, and (3) an order of the same court entered July 7, 2008, which denied the plaintiffs' motion, in effect, for leave to reargue their opposition to the defendant's motion.
ORDERED that the appeal from the order entered March 26, 2008, is dismissed as abandoned; and it is further,
ORDERED that the appeal from the order entered July 7, 2008, is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the order entered May 6, 2008, is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the respondent.
"A party seeking dismissal on the ground that its defense is founded on documentary evidence under CPLR 3211(a)(1) has the burden of submitting documentary evidence that resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim'" (Sullivan v State of New York, 34 AD3d 443, 445, quoting Nevin v Laclede Professional Prods., 273 AD2d 453, 453; see GuideOne Specialty Ins. Co. v Admiral Ins. Co., 57 AD3d 611, 613; Cohen v Nassau Educators Fed. Credit Union, 37 AD3d 751, 752).
Here, the documentary evidence submitted by the defendant in support of its motion conclusively established that the instant action was barred because it was commenced after the two-year limitation period contained in the subject insurance policy had expired (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967-968; Neary v Nationwide Mut. Fire Ins. Co., 17 AD3d 331). Thereupon, "the burden shifted to the plaintiffs to aver evidentiary facts establishing that the case at hand falls within [an exception to the limitations period]" (Minichello v Northern Assur. Co. of Am., 304 AD2d 731, 732). Exceptions exist where a defendant insurer has "engaged in a course of conduct which lulled [the plaintiffs] into inactivity in the belief that their claim would ultimately be processed" or has induced the plaintiffs "by fraud, misrepresentation or deception to refrain from commencing a timely action" (Minichello v Northern Assur. Co. of Am., 304 AD2d at 732 [internal quotation marks omitted]; see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d at 967-968; Neary v Nationwide Mut. Fire Ins., Co., 17 AD3d 331).
In opposition to the motion, the plaintiffs failed to demonstrate any basis for estopping the defendant from relying upon the contractual limitations period. Accordingly, the Supreme Court properly granted the defendant's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint (see Dimmick v New York Prop. Ins. Underwriting Assn., 57 AD3d 602, 603; Minichello v Northern Assur. Co. of Am., 304 AD2d 731).
The appeal from the order entered March 26, 2008, must be dismissed as abandoned, as the plaintiffs do not seek reversal of any portion of that order in their brief (see Sirma v Beach, 59 AD3d 611, 614; Bibas v Bibas, 58 AD3d 586).
The plaintiffs' remaining contentions are without merit.
SKELOS, J.P., DICKERSON, ENG and SGROI, JJ., concur.


Village of Brewster v. Virginia Surety Company
Calendar Date: January 7, 2010
Before: Cardona, P.J., Peters, Rose, Kavanagh and McCarthy, JJ.


Congdon, Flaherty, O'Callaghan, Reis, Donlon, Travis
& Fishlinger, Colonie (Avis S. Decaire of counsel), for
appellants.
McElroy, Deutch, Mulvaney & Carpenter, L.L.P.,
Morristown, New Jersey (Richard S. Mills of counsel), for
respondent.
MEMORANDUM AND ORDER



Peters, J.
Appeal from an order of the Supreme Court (O'Connor, J.), entered June 18, 2009 in Albany County, which partially denied plaintiffs' motion for summary judgment.
In June 2004, plaintiff Village of Brewster contracted with Laws Construction Corporation to construct new potable water distribution and wastewater collection systems within the Village of Brewster, Putnam County. The contract provided that Laws would indemnify the Village for all claims for injury to property arising out of Laws' work and required Laws to maintain comprehensive general liability (hereinafter CGL) insurance naming the Village an additional insured. Laws obtained a CGL insurance policy from defendant Virginia Surety Company, Inc. (hereinafter defendant), which included an additional insured endorsement naming the Village as an additional insured, but "only with respect to liability arising out of [Laws'] work for [the Village]." During the relevant time period, the Village also had a CGL insurance policy from New York Municipal Insurance Reciprocal (hereinafter NYMIR).
On August 5, 2005, during the course of the work, a water main broke in the vicinity of Main Street in the Village, causing flooding to properties. Two of the affected residents thereafter sued the Village and Laws for property damage. The Village, in turn, tendered to defendant the claims against it and Laws, and demanded that defendant defend and indemnify it pursuant to the terms of the CGL insurance policy issued by defendant. Defendant disclaimed coverage on the basis that Laws' operations did not cause or contribute to the property damages claimed in the underlying complaints and, therefore, any alleged loss did not arise out of Laws' work.
The Village and NYMIR, through its attorney-in-fact (hereinafter collectively referred to as plaintiffs), thereafter commenced this declaratory judgment action seeking, among other things, a declaration that defendant was required to defend and indemnify the Village for any liability arising out of the underlying actions and that defendant must reimburse NYMIR for legal fees and costs incurred to date in defending the Village. Following joinder of issue and discovery, plaintiffs moved for summary judgment. In opposition to plaintiffs' motion, defendant averred that, pursuant to the Village's contract with Laws, the Village was responsible for the maintenance and operation of the existing plant, wastewater collection system and potable water distribution system during the construction of the new system by Laws, and that Laws had no responsibility to maintain the existing system. Defendant further asserted that the water main break occurred on a part of the existing water system, that Laws only worked on the new system, which was void of water and 10 miles away from the site of the main break, that Laws had completed its work on the new system nine days earlier, and that Laws voluntarily provided the Village with a backhoe to make repairs at the site, but did not perform any work at that site. On this evidence, Supreme Court found that defendant raised a triable issue of fact sufficient to withstand summary judgment with respect to its duty to defend and indemnify the Village. In light of its finding, Supreme Court did not reach the issues of priority of coverage and reimbursement of defense costs. This appeal by plaintiffs ensued.
Supreme Court erred in denying that portion of plaintiffs' summary judgment motion seeking a declaration that defendant was obligated to defend the Village in the underlying actions. It is now beyond cavil that an insurer's "duty to defend is 'exceedingly broad' and an insurer will be called upon to provide a defense whenever the allegations of the complaint 'suggest . . . a reasonable possibility of coverage'" (Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131, 137 [2006], quoting Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640, 648 [1993]; accord BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d 708, 714 [2007]). In other words, if the complaint contains any facts or allegations that bring the claim even potentially within the embrace of the policy, the insurer must defend its insured, "no matter how groundless, false or baseless the suit may be" (Automobile Ins. Co. of Hartford v Cook, 7 NY3d at 137 [internal quotation marks and citation omitted]; see Town of Massena v Healthcare Underwriters Mut. Ins. Co., 98 NY2d 435, 443-444 [2002]; Technicon Elecs. Corp. v American Home Assur. Co., 74 NY2d 66, 73 [1989]). Further, "'[e]ven where there exist extrinsic facts suggesting that the claim may ultimately prove meritless or outside the policy's coverage, the insurer cannot avoid its commitment to provide a defense'" (Durant v North Country Adirondack Coop. Ins. Co., 24 AD3d 1165, 1166 [2005], quoting Fitzpatrick v American Honda Motor Co., 78 NY2d 61, 66 [1991]; see Automobile Ins. Co. of Hartford v. Cook, 7 NY3d at 137).
The complaints in the underlying suits allege that Laws' negligent performance of its construction and excavation work on behalf of the Village caused the water main to break, resulting in property damage. These allegations, if ultimately proven to be true, would bring the claims within the ambit of the protection afforded by defendant's coverage, thereby triggering defendant's duty to provide the Village with a defense (see BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d at 715; Durant v North Country Adirondack Coop. Ins. Co., 24 AD3d at 1166). The extrinsic facts alleged by defendant, although supportive of its position that the claims may ultimately fall outside of its policy coverage, will not relieve it of its commitment to provide a defense (see Automobile Ins. Co. of Hartford v. Cook, 7 NY3d at 137; Pahl v Grenier, 277 AD2d 681, 683 [2000]). Indeed, defendant acknowledges that there is no evidence "about which system actually leaked, or why." Having failed to "'establish[] as a matter of law that there is no possible factual or legal basis on which it might eventually be obligated to indemnify [the Village] under any policy provision'" (Town of Massena v Healthcare Underwriters Mut. Ins. Co., 98 NY2d at 445, quoting Allstate Ins. Co. v Zuk, 78 NY2d 41, 45 [1991]; see Spoor-Lasher Co. v Aetna Cas. & Sur. Co., 39 NY2d 875, 876 [1976]), defendant must defend the Village in the underlying actions, with the issue of indemnification to await the proof at trial in those actions (see Merchants Ins. of N.H., Inc. v Weaver, 31 AD3d 945, 946 [2006]).
To the extent that defendant argues that certain exclusions contained in the policy provide an alternate basis for denying coverage, it failed to invoke these grounds in its notice of disclaimer, instead raising them for the first time in opposition to plaintiffs' motion for summary judgment. Since "'an insurer's disclaimer is strictly limited to those grounds stated in the notice of disclaimer, which disclaimer must clearly apprise the insured of the grounds on which the disclaimer is based'" (City of Kingston v Harco Natl. Ins. Co., 46 AD3d 1320, 1321 [2007], lv dismissed 10 NY3d 822 [2008], quoting Maroney v New York Cent. Mut. Fire Ins. Co., 10 AD3d 778, 780-781 [2004], affd 5 NY3d 467 [2005] [internal quotation marks and citation omitted]; see Clayburn v Nationwide Mut. Fire Ins. Co., 58 AD3d 990, 991 [2009]; Kokonis v Hanover Ins. Co., 279 AD2d 868, 870 [2001]), defendant cannot now rely on uninvoked exclusions as a basis for denying coverage.[FN1]
Turning to the issue of priority of coverage, we must review and consider the provisions of all of the relevant policies at issue to determine the priority among them (see BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d at 716; Bovis Lend Lease LMB, Inc. v Great Am. Ins. Co., 53 AD3d 140, 147-148 [2008]). Pursuant to the "other insurance" clauses in the policies issued by defendant and NYMIR, each policy provides primary coverage except that the coverage is excess where any other primary insurance is available to the insured for which the insured has been added as an additional insured by attachment of an endorsement. Here, the Village is added as an additional insured on Laws' policy with defendant, thereby triggering the excess clause in the NYMIR policy, but not in defendant's policy. Thus, pursuant to the terms of the policies, NYMIR's coverage is excess to defendant's coverage and, therefore, coverage under defendant's policy must be exhausted before NYMIR is required to contribute under its policy (see Harleysville Ins. Co. v Travelers Ins. Co., 38 AD3d 1364, 1367 [2007], lv denied 9 NY3d 811 [2007]; Firemen's Ins. Co. of Washington, D.C. v Federal Ins. Co., 233 AD2d 193, 193 [1996], lv denied 90 NY2d 803 [1997]). Accordingly, defendant must reimburse NYMIR for costs incurred to date in defending the underlying actions (see Sport Rock Intl., Inc. v American Cas. Co. of Reading, Pa., 65 AD3d 12, 29 [2009]; see also General Motors Acceptance Corp. v Nationwide Ins. Co., 4 NY3d 451, 456 [2005]).
Cardona, P.J., Rose, Kavanagh and McCarthy, JJ., concur.
ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as denied plaintiffs' motion for summary judgment declaring that defendant Virginia Surety Company, Inc. must defend plaintiff Village of Brewster in the underlying actions and reimburse New York Municipal Insurance Reciprocal for legal fees and costs incurred in defending the Village in those underlying actions; it is declared that said defendant has a duty to defend the Village in the underlying actions and that New York Municipal Insurance Reciprocal's coverage is excess to that of said defendant; and, as so modified, affirmed.


Footnotes
Footnote 1: Even were we to find no waiver on the part of defendant, we would nevertheless find that its attempt to disclaim based on these exclusions was untimely as a matter of law. Defendant failed to advance any justification or explanation for the three-year delay in raising these exclusions (see Kokonis v Hanover Ins. Co., 279 AD2d 868, 870 [2001]; Dependible Janitorial Servs. v Transcontinental Ins. Co., 212 AD2d 946, 947 [1995], lv denied 85 NY2d 811 [1995]).

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