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Coverage Pointers - Volume XI, No. 18

Dear Coverage Pointers Subscribers:

 

If the front desk people at the Disney Grand Floridian tell me one more time to have a magical day, I may need to personally thrash the other six of the Seven Dwarfs until they too are grumpy. 

 

I bring you greetings from the FDCC Winter Meeting in rather "brisk" Orlando.  While we haven't yet had snow flurries, suffice it to say, the only Vitamin D available is from orange juice.  I did get my picture taken with Mickey, Minnie, Jasmine and Aladdin, rode the Toy Story Ride, flew to Mars from Epcot and went "Soarin'" there as well (besides listening to top notch speakers on cutting edge topics).

 

Introducing:  Jennifer Ehman and Jen's Gems:

 

We are delighted to welcome, now officially, Jennifer Ehman to our firm as a newly minted lawyer and as a member of our coverage team.  Jennifer has been with us for several months, as she awaited news that she successfully passed the Bar Exam and then when through the admission process.  A graduate of the Buffalo Law School and (like Audrey) one of the top students in my Insurance Law course there, Jennifer has been working behind the scenes as a lawyer-in-waiting until her official bar admission.

 

Jen grew up in Buffalo, attended Loyola College, which is now Loyola University Maryland, where she majored in Finance.  During law school, she also earned an MBA.  I asked Jennifer to describe any hobbies she might be willing to disclose and she confided that she is trying to learn how to cook.  Surely important to survival, perhaps in future Gems columns she'll pass on some new recipe for yak egg omelets or some such thing.

 

Jennifer was anxious to join the Coverage Pointers team and has now done so, with her inaugural column in this week's issue.  As you are aware, we have reported on every New York appellate decision on insurance coverage for almost 12 years.  Jen's Gems will look at lower court decisions coming from our state's trial level court, the Supreme Court to try to spot interesting cases that may be the harbinger of things to come in the future. 

 

For example, in today's issue, Jennifer reports on a very unique lower court decision allowing a liability carrier facing hundreds of millions of dollars in claims arising out of the tragic crane collapse in New York City where eight people were killed and many injured, to exhaust its rather limited policy by settling one case and bring closure to its duty to defend the many other pending claims.  See the Rite-Aid summary.  Full decision available upon request.

 

Spring Training

 

Spring training has started in both the Grapefruit and Cactus Leagues and also for claim professionals and lawyers alike.  Here are a few of the headliners:

 

Continuing Education Alerts:

 

  • March 21-24:  PLRB/LIRB Claims Conference in San Antonio.
    Yours truly will be presenting on Approaching Complex Liability Coverage Issues and has the pleasure of serving on the Planning Committee for this blockbuster conference.  Hope to see many of you there.
  • April 14-16: DRI Insurance Coverage and Claims Institute in Chicago.
    Superb insurance coverage programming with a diverse panel of presenters on a variety of timely topics.  Hurwitz & Fine's Kirsten Lowery Summers will be speaking on "The Landscape of Green Issues, Claims and Coverage Issues Today and Tomorrow."  Registration information available on the DRI website, www.dri.org.
  • June 13-17: FDCC Litigation Management Conference and Graduate Program at Emory University in Atlanta
    There is no better training program for claims professionals anywhere.  Visit the FDCC website, www.thefederation.org for registration and program information.
  • November 18-19: DRI Insurance Claims and Practice Symposium in New York City.
    As Program Chair for the ICPS, I guarantee you an education program of the highest caliber, with phenomenal speakers and advanced insurance programming.  Registration information not yet available.

 

Audrey, Captured:

 

Our Audrey Seeley was nicely profiled in both Buffalo Business First and Buffalo Law Journal.  The profile also captured a very nice picture.  You can find the article here: http://buffalo.bizjournals.com/buffalo/stories/2010/02/22/story8.html

 

From Audrey, the Undisputed Queen of No Fault:

 

I hope our NYC and Maryland subscribers survived last week's winter storm.  After speaking with some in the NYC area I think I can say that Buffalo probably had less snow from that storm.

 

One positive thing that occurred around the time of this storm is that we gained a new lawyer!  We welcome Jennifer A. Ehman, Esq. who was just admitted last week and is eager to work on insurance coverage and no-fault issues.

 

There are quite a few interesting decisions, particularly in the arbitration area, this edition.  Some use and operation, one year ascertainability rule, material misrepresentation, and even the F word is used.  As always if you would like a copy of any of the decisions or awards please send me an email.

 

Also, please remember that there is a great program being presented at the DRI Insurance Law Committee in Chicago April 14-16th. You do not have to be a coverage guru to attend.  This conference is geared heavily toward claims handling.  If you register before March 25th there is a discount in the program price.  Also, for insurers there are incentives provided in the form of discounts and credits if you send a group from your company.  If you have an interest please email me at [email protected] and I can provide you with the details.  I note that in addition to the excellent education provided there will also be a number of networking opportunities.  Every evening there is a cocktail reception and each evening you can sign up for dinner at a local restaurant and have dinner with a much smaller group (around 10 people) of people for the evening.  Finally, if you do plan on attending please send me an email so that I will ensure to catch up with you in Chicago!

 

Audrey

 

One Hundred Years Ago Today, the Founder of the Waldorf-Astoria Made the Headlines:

 

Syracuse Post Standard

March 4, 1910, Page 1

CELEBRATES ON EVE

OF DIVORCE GRANT

Colonel John Jacob Astor Gives Brilliant Ball-The Favors Alone Cost $l8,000-More Than 1,600 Roses Used 

NEW YORK - On the eve of granting the final decree of divorce obtained by his wife, Colonel John Jacob Astor gave a brilliant ball tonight in the reconstructed Astor mansion at Sixty fifth Street and Fifth Avenue. One hundred and forty dozen roses were used in the decorations and it is estimated the favors cost $18,000. There were 150 guests, including the best known society people of the city. 

 

This is the first large entertainment that has been given in the Astor residence for several years and was in the nature of a house warming as the Astor houses, the one occupied during her life by Colonel Astor's mother and his own adjoining, have been made into one afforded with extensive alterations.

Editor's Note:  Astor had divorced his first wife, Ava Lowle Willing the year earlier after it was revealed that Ava had an affair and that their daughter Ava Alice was in fact fathered by someone other than Astor. 

 

On September 11, 1911, Astor married an 18-year old woman named Madeline Talmage Force (she was a year younger than his son Vincent).  When she became pregnant, the two, traveling in Europe at the time, decided to return to the United States for the birth of their child.  Unfortunately, they did so by virtue of the RMS Titanic.  Astor died as the ship sank, while Madeline survived in Lifeboat 4.  Madeline gave birth to John Jacob Astor V, four months after the sinking of the Titanic and he died in 1992.

 

It is said that Astor commented, as the ship went down, "I ordered more ice, but this is ridiculous."

 

During World War I, Madeline remarried and in doing so, gave up her claim to the Astor fortune, pursuant to the stipulation in the Astor will.

 

Fifty-Seven Years Ago Tomorrow:

 

Virtually every newspaper in America contained banner headlines advising that Soviet leader Joseph Stalin was on his death bed.  He in fact died on that day, March 5, 1953.  Surely, had Stalin's grave condition not been front page news, the story of the impending birth of the future editor of Coverage Pointers, also to occur on March 5, would have been there instead.

 

Here are the Headlines for the Summaries In This Week's Issue:

 

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

  • Proper Cancellation of Premium Financed Policy Established So Claimant Entitled to Proceed With Uninsured Motorists Arbitration 

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

  • Failure to Address MRI Findings Is Fatal to Summary Judgment Motion
  • Report That Did Not Sufficiently Quantify Limitations Is Nonetheless Deemed Qualitatively Sufficient
  • Range of Motion Limitations Noted During Examination Four Years After Accident Do Not Support Claim Under Permanent or Non-Permanent Categories
  • Affidavit Overcomes Allegations That Injuries Were Degenerative, Pre-Existing or Caused By Subsequent Accident
  • Plaintiff's Experts' Conclusions Regarding Causation Are Speculative
  • Once Again, Unsubstantiated Conclusion That ROM Limitations Are Self-Imposed Fails
  • Unsubstantiated Complaints Do Not Raise Issue of Fact
  • The Battle of the Radiologists
  • Affidavit Stating Injuries Are Permanent and Causally Related Defeats Summary Judgment
  • Court Denies Motion to Amend Bill of Particulars to Add Injury Not Evidenced in Records Until Almost a Year After Accident
  • Defendant's Motion Fails Where IME Doctor Fails to Address Traumatic Brain Injury Alleged in Bill of Particulars 

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

ARBITRATION

 

  • Applicant Terminated Because of Disability Due to Injuries and Entitled to Lost Wages
  • Coverage Denied Based Upon Misrepresentation of Facts to Obtain Lower Premium
  • Use and Operation As Well As One Year Rule Decided in One Case!
  • Arbitration Premature As Bills Not Submitted to Insurer
  • Fraud Not Proven to Uphold Denial
  • Expedited Hearing Limited to Documentary Evidence? 

LITIGATION

 

  • Master Arbitration Award Not Vacated
  • Insurer Did Not Establish Mallela Defense to Establish Entitlement to Summary Judgment
  • Sole Corporate Owner Must Be Licensed in Acupuncture at Time Service Rendered to Be Eligible for Reimbursement
  • Plaintiff Failed to Rebut Insurer's Assertion that Peer Review Report Was Not Stamped 

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

 

Of Potpourri

  • Workers' Compensation Board Has Sole Jurisdiction Over Workers' Compensation Benefits 

FIJAL'S FEDERAL FOCUS
Katherine A. Fijal
[email protected]

  • Policy Language Is Paramount When Analyzing Coverage Issues 

JEN'S GEMS
Jennifer A. Ehman
[email protected]

  • Additional Insured Status Under Georgia Law
  • Court Allows Insurer to Pay Policy Limits on One Case to Extinguish Defense Obligations on Other Pending Claims
  • Additional Insured With Respect to Acts or Omissions 

EARL'S PEARLS
Earl K. Cantwell
[email protected]

Referring Out a Case:  Referring in a Malpractice Claim

 

All for now.  See you after the Ides.

 

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
Jennifer A. Ehman


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

Jennifer A. Ehman

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
Jen’s Gems
Earl’s Pearls
Across Borders

KOHANE’S COVERAGE CORNER
Dan D. Kohane

[email protected]

2/16/10          Matter of Progressive Northeastern Ins. Co. v. Akinyooye
Appellate Division, Second Department
Proper Cancellation of Premium Financed Policy Established So Claimant Entitled to Proceed With Uninsured Motorists Arbitration
Progressive sought a stay of an uninsured motorist arbitration, claiming that Allstate, the offending motorist’s insurer, had not properly canceled a policy which had been premium financed.  Allstate was able to establish that its insured was provided with a notice of intent to cancel and a cancellation notice fully compliant with Banking Law § 576, more than one year prior to the subject accident.  Accordingly, the UM arbitration would proceed.

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

[email protected]

2/25/10           Beazer v. Webster
Appellate Division, First Department

Failure to Address MRI Findings Is Fatal to Summary Judgment Motion
The defendants’ experts did not distinguish or even address the findings in an MRI, an EMG/NCV test, or other objective testing.  In addition, the defendants’ own ROM findings were not supported by an enumeration of the objective tests performed.  These failures were fatal to their motion.

2/25/10           Byong Yol Yi v. Canela
Appellate Division, First Department

Report That Did Not Sufficiently Quantify Limitations Is Nonetheless Deemed Qualitatively Sufficient
The plaintiff’s claim under the permanent loss of use category was dismissed because the loss was not total, and his claim under the 90/180-day category was defeated by his own deposition testimony, even though only one of the defendant’s doctors addressed the MRI findings, and none of them addressed the plaintiff’s chiropractor’s reports.  As to plaintiff’s remaining claims, although the defendant’s experts opined that the changes in the plaintiff’s spine were age-related, the plaintiff’s experts opined that they were causally related to the accident.  In coming to that conclusion, the plaintiff’s doctor performed objective tests and did not rely solely on the MRI which showed herniated and bulging discs.  Although he did not quantify all the ROM limitations, the court found the doctor’s report qualitatively sufficient. 

Note:  Also unfortunate for the defendant was the fact that he did not preserve arguments regarding gap in treatment or the lack of contemporaneous findings which resulted in the appellate court’s refusal to consider those arguments.

2/25/10           Rivera v. Honey Express Cab Corp.
Appellate Division, First Department

Range of Motion Limitations Noted During Examination Four Years After Accident Do Not Support Claim Under Permanent or Non-Permanent Categories
Here, even though the plaintiff’s experts quantified his ROM limitations in 2007 and 2008, none of the plaintiff’s experts provided any ROM findings that were contemporaneous with the 2003 accident, nor did they address a back injury sustained in 1986.  Furthermore, plaintiff’s own bill of particulars and deposition testimony defeated his 90/180-day claim.  Therefore, on appeal the trial court’s dismissal of the complaint was affirmed.

2/23/10           Garcia v. Leon
Appellate Division, First Department

Affidavit Overcomes Allegations That Injuries Were Degenerative, Pre-Existing or Caused By Subsequent Accident
On appeal, the defendants’ motion was granted but only to the extent of dismissing the 90/180-day claim.  However, Jennifer Garcia successfully resisted the defendants’ motion through the submission of her chiropractor’s affidavit, in conjunction with unsworn statements of her medical experts and MRI tests, which raised issues of fact as to whether her injuries were permanent or significant and not pre-existing, degenerative, or caused by a subsequent accident.

2/23/10           Casimir v. Bailey
Appellate Division, Second Department

Plaintiff’s Experts’ Conclusions Regarding Causation Are Speculative
The plaintiff’s experts did not address the defendant’s radiologist’s conclusions that the bulging and herniated discs observed on the MRI films were degenerative and not caused by the accident.  This failure results in their opinion as regards causation being considered speculative and insufficient to defeat the motion for summary judgment.  Furthermore, as well established, the mere existence of herniated or bulging discs is not evidence of serious injury in the absence of evidence as to the extent of the resulting limitations and their duration.  No such evidence was presented in opposition to the defendant’s motion.

2/23/20           Kim v. Orourke
Appellate Division, Second Department

Once Again, Unsubstantiated Conclusion That ROM Limitations Are Self-Imposed Fails
The defendant did not make his prima facie case because, among other things, his examining neurologist not only reported ROM limitations but then did not explain or substantiate, with any objective medical testing, his conclusion that the limitations were self-imposed. 

2/23/10           Noh v. Duffe
Appellate Division, Second Department

Unsubstantiated Complaints Do Not Raise Issue of Fact
And in this case all the plaintiffs presented were their own subjective complaints of ROM limitations and pain, without any verified, objective medical evidence in substantiation.  Such submissions cannot defeat a prima facie showing by the defendant, who submitted affirmed reports of a neurologist, an orthopedist and a radiologist in support of her motion.

2/18/10           Vera v. Islam
Appellate Division, First Department

The Battle of the Radiologists
And here the plaintiff’s sufficiently rebuts the defendants’ where the plaintiff submitted affirmed MRI reports providing objective evidence of herniated discs and bulges or the cervical and lumbar spine.  The defendants’ radiologist observed disc changes and concluded they were normal and unrelated to the accident, even though the plaintiff was only 30 years old.   In addition, the plaintiff submitted the affirmed report of his treating physician, based both on contemporaneous and recent examinations, in which the physician quantified ROM limitations and asserted they were caused by the accident. 

2/16/10           Benitez v. Lashnitz
Appellate Division, Second Department

Affidavit Stating Injuries Are Permanent and Causally Related Defeats Summary Judgment
The plaintiff submitted an affidavit of her treating chiropractor which was based on contemporaneous and recent examinations and stated that the plaintiff’s lumbar and cervical injuries were both permanent and causally related to the accident.  Contrary to the trial court’s ruling, this was sufficient to defeat the defendants’ motions.

2/16/10           Daly-Caffrey v. Licausi
Appellate Division, Second Department

Court Denies Motion to Amend Bill of Particulars to Add Injury Not Evidenced in Records Until Almost a Year After Accident
The plaintiff sought to amend her Bill of Particulars to include a new injury that had never previously been mentioned and that did not appear in her medical records until almost a year after the accident.  The court denied leave to amend stating that there must be both an explanation for the delay and a medical affidavit showing a causal connection between the accident and the alleged injury.  Here there were not and the trial court erred in granting leave.  However, the defendant did not carry his burden so summary judgment was denied without consideration of the plaintiff’s opposing submissions.

2/16/10           Safer v. Silbersweig
Appellate Division, Second Department

Defendant’s Motion Fails Where IME Doctor Fails to Address Traumatic Brain Injury Alleged in Bill of Particulars
The plaintiff’s Bill of Particulars alleged traumatic brain injury but the defendant’s only examining doctor, an orthopedic surgeon, did not address this allegation.  The Bill, in of itself, was enough to defeat the defendant’s motion. 


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

3/1/10             Applicant v. Progressive Ins. Co.
Arbitrator Veronica K. O’Connor,
Erie County
Applicant Terminated Because of Disability Due to Injuries and Entitled to Lost Wages

The Applicant, eligible injured person, sought lost wages arising out of a 5/11/08 motor vehicle accident.  The Applicant was a paralegal and testified that she tried to continue working at her new job.  The Applicant actually declined surgery due to starting her new job.  The Applicant contended that she was forced to take sick days and vacation time in order to attend appointments and medical examinations.  Further, she was taking pain medication which affected her sleep and resulted in affecting the quality of her work.  Ultimately, the Applicant was terminated in June due to performance related issues. 
The insurer denied the lost wage claim on the basis that the Applicant was terminated from her employment for reasons other than inability to work due to injuries from the accident.
The assigned arbitrator determined that the reason why the Applicant was terminated was due to her inability to work to injuries.
2/26/10           Applicant v. Preferred Mutual Ins. Co.
Arbitrator Veronica K. O’Connor,
Erie County
Coverage Denied Based Upon Misrepresentation of Facts to Obtain Lower Premium

The insurer denied the Applicant’s no-fault claim alleging that the assignor and her father were involved in rate evasion and materially misrepresented material facts in procuring coverage.  Specifically, while the father was the named insured on the policy the vehicle insured was actually in the sole possession of the assignor and used only by the assignor on a daily basis.  Apparently, the father procured the insurance to obtain a lower premium and the insurer contended that the premium would have been higher had it known the assignor was the actual vehicle owner and user.
The assigned arbitrator determined that the policy was procured through material misrepresentation of the facts and denied the claim in its entirety.
2/25/10           Applicant v. Erie Ins. Co. of New York
Arbitrator Veronica K. O’Connor, Erie County
Use and Operation As Well As One Year Rule Decided in One Case!

The insurer denied a claim for right knee surgery which occurred on 12/2/08 on the basis of the one year rule and that the injury did not arise out of the use and operation of motor vehicle on 4/4/05.

The assignor was involved in a 4/4/05 accident and complained of neck and back pain for which he sought treatment.  He was thereafter incarcerated for three years and on 11/18/08 treated with Applicant complaining of right need pain since 9/8/08.  On 12/2/08, Applicant performed surgery on the right knee.

The insurer relied upon peer review of Dr. Kupersmith who opined that after an extensive review of the records he saw no causal relationship between the accident and the surgery.  Further, there was no medical documentation that the assignor even complained of a right knee problem until nearly three and a half years later.

The assigned arbitrator agreed with the insurer’s position on this issue as there was no evidence that the injury had been ascertained to the knee within the first year after the accident.

Turning to the use and operation issue, the assigned arbitrator set forth a thorough and extremely useful analysis on the case law regarding use and operation together with its evolution throughout the years to encompass loading and unloading.  The assigned arbitrator determined that this injury did not arise out of the use and operation as the evidence indicated that the assignor injured his right knee when it gave out while he was walking down the stairs.

2/25/10           Applicant v. St. Paul Travelers Ins.
Arbitrator Veronica K. O’Connor, Erie County
Arbitration Premature As Bills Not Submitted to Insurer

The Applicant was involved in a 12/20/96 accident and subsequently the majority of her medical treatment was paid by a private health insurer for some unexplained reason.  The Applicant did not contact the insurer again after the accident until February 2008 and was told that the insurer would no longer reimburse her for treatment.  Due to this representation, the Applicant did not submit her prescription bills as she believed they would not be processed.  In July 2009, the Applicant again contacted the insurer and then allegedly submitted the outstanding prescription bills for payment.

The insurer’s activity log indicates that it advised Applicant on 7/10/09 to submit her prescription bills for review.  On 8/28/09, the insurer noted receipt of an arbitration demand.

The insurer in this case did not issue a denial for the prescription bills Applicant placed into arbitration because it never received them.  The Applicant did not submit proof that she submitted them to the insurer prior to filing for arbitration.  Accordingly, the case was dismissed as not being ripe for determination.

2/24/10           Applicant v. Liberty Mut. Ins. Co.
Arbitrator Veronica K. O’Connor,
Erie County
Fraud Not Proven to Uphold Denial

The Applicant, eligible injured person, sought substitute service wages and medical expenses arising out of a 4/4/08 accident.  The insurer denied the claim based upon the Applicant’s material misrepresentation and false information presented to the Applicant.

The Applicant after the accident sought treatment for a neck, low back, left shoulder, left wrist, and left knee injuries.  The Applicant was examined by Dr. Shankman on 7/22/08 who opined that the Applicant had a lumbar herniated disc, shoulder tendonitis, and sprained left wrist causally related to the accident.  He further opined that the Applicant could work but with 10 pound lifting and carrying restrictions.  He could not climb heights, perform rapid, repetitive motions with his back or arm or work in a cramped or confined space.

Upon re-evaluation on 12/10/08, Dr. Shankman opined that the Applicant had a lumbar herniated disc, resolved left shoulder tendonitis, resolving left wrist sprain, and a left knee sprain.  The Applicant has the same working restrictions.

The Applicant was self-employed and owned and maintained a number of rental properties.  The Applicant’s treating physician, Dr. Matteliano, deemed him totally disabled and unable to perform any work relating to the properties.

The Applicant then submitted a lost wage claim for substitute services in the amount of $4,000.00 per month, which appears to be the maximum amount of coverage under the policy.  He also provided copies of cancelled checks to the individual who performed the work the Applicant could not do on the rental properties.

From 1/24/09 through 3/9/09, the Applicant was videotaped on eight different occasions wearing a sweatshirt and pants with paint splatters; entering and exiting a number of properties; entering and exiting his vehicle; carrying a paint can, bucket, and tool belt; carrying a large set of keys; walking his dog from a vehicle to a property; using a measuring tape to measure a window; pulling two rolling garbage cans to the street; and dragging plastic garbage bags to the street.

The Applicant also submitted to an EUO and testified that would monitor and confirm the work was performed by his substitute worker.  He also indicated that the paint on his sweatshirt and pants on the video was not from that day.

The insurer’s denial language, which is critical, stated that the entire claim was denied based upon the Applicant’s fraud and providing material misrepresentation of the material facts regarding events after the accident as well as submitting false information to support his claim

Again, keep in the mind the insurer’s defense is fraud, which has a high standard of proof.  The assigned arbitrator determined that the denial could not be upheld because the videotaped footage of the Applicant did not provide proof that he was performing work in excess of the recommendations by the IME physician.  Likewise, there was nothing within the EUO transcript or Applicant’s testimony that supported a fraud or material misrepresentation defense.

[NOTE:  Would the outcome has been the same had the denial not been based upon the high fraud standard?  Something to think about….]

2/23/10           Applicant v. A Central Ins. Co.
Arbitrator Thomas J. McCorry,
Erie County
Expedited Hearing Limited to Documentary Evidence?

The Applicant, eligible injured person, sought a determination on whether an exclusion for intentionally causing your own injuries applied even though no element of basic economic loss had been incurred by him.  While the hearing was expedited, two telephonic conferences occurred and it is noted that the decision does not mention that the insurer’s counsel advised in both conferences, which historically have been used as scheduling conferences, that it wanted to present two witnesses to this incident, the named insured and his spouse, instead of relying upon any written statement that may have existed from them.  A live hearing was requested each time to present the witnesses’ testimony and only at the second telephonic conference was it denied on the ground that there was insufficient documentary evidence to warrant a live hearing.  Therefore, the insurer’s opportunity to present testimony from its witnesses, even via telephone, was likewise denied.  Instead, it appears from this decision that because this was an expedited hearing that perhaps the evidence is limited to documentary evidence.

LITIGATION
2/23/10           In the Matter of Travelers Indem. Co. v. United Diag. Imaging, PC a/a/o Joseph Thankachan
Appellate Division, Second Department
Master Arbitration Award Not Vacated

The petitioner failed to demonstrate that the master arbitrator’s award was irrational and arbitrary and capricious.  Accordingly, the award in favor of the applicant for the benefit was upheld.

2/19/10           Bath Med. Supply, Inc. a/a/o Lynn Karam v. Allstate Indem. Co.
Appellate Term, Second Department
Insurer Did Not Establish Mallela Defense to Establish Entitlement to Summary Judgment

Plaintiff’s summary judgment motion should have been granted and the defendant’s denied as the defendant failed to offer a factual basis for its contention that the plaintiff was not properly incorporated as a durable medical equipment provider.  Further, the fact that the eligible injured person failed to appear for an EBT cannot impute a sanction upon the plaintiff for failure to provide disclosure, particularly when the witness is not under the plaintiff’s control. 

2/19/10           Quality Med. Care, PC a/a/o Michael Depietro v. New York Cent. Mut. Fire Ins. Co.
Appellate Term, Second Department
Sole Corporate Owner Must Be Licensed in Acupuncture at Time Service Rendered to Be Eligible for Reimbursement

At trial the parties stipulated that the physician was not certified to perform acupuncture services that were rendered at issue in the litigation.  Rather, the services were provided by a licensed acupuncturist employed by plaintiff.  The only issue at trial was whether the plaintiff had standing to proceed with this action.  The trial court held that since the plaintiff employed a licensed professional to perform the service then it could obtain reimbursement under no-fault.

The insurer appealed and relied upon 11 NYCRR §65-3.16(a)(12) which provides that a health care provider is not eligible for reimbursement under no-fault if it fails to meet any applicable New York or local licensing requirements necessary to perform the service.  Furthermore, only a licensed or certified individual may practice acupuncture in New York.  A physician is not automatically certified by virtue of a medical license.  Accordingly, the certificate of incorporation for a professional service corporation that wants to reimbursed for acupuncture services must attach a certificate issued by the Education Department certifying that each of the proposed shareholders, directors, and officers is legally authorized to practice a profession that the corporation is being organized to practice and that one or more of those individuals is authorized to practice.  See, Business Corporation Law §1503(b). 

Here, the corporation is solely owned by a physician unauthorized to practice acupuncture and therefore is not entitled to reimbursement under no-fault.  This is despite the fact that the physician became licensed in acupuncture after the service was rendered.  Therefore, there was no retroactive effect provided.

2/19/10           Eden Med., PC a/a/o Shelly White Carrington v. Eveready Ins. Co.
Appellate Term, Second Department
Plaintiff Failed to Rebut Insurer’s Assertion that Peer Review Report Was Not Stamped

The insurer’s cross-motion for summary judgment was properly granted.  The plaintiff summarily raising an issue that the peer review report contained a stamped signature without any further rationale as to the foundation for the belief was insufficient to raise an issue of fact.  While it was indicated that generally the issue of whether the document contained a stamped signature cannot be resolved by review of the document on a summary judgment motion, the insurer submitted an affidavit from the peer reviewer attesting that she personally applied her signature to the report.  This assertion was not rebutted by plaintiff.

PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper

[email protected]

Of Potpourri
02/16/10         Jamal v Gohel
Appellate Division, Second Department
Workers’ Compensation Board Has Sole Jurisdiction Over Workers’ Compensation Benefits

Plaintiff’s husband was killed in an automobile accident in December of 1999. At the time of the incident, the decedent was in course of his employment.  As a result, plaintiff commenced a claim for death benefits under the employer’s workers’ compensation coverage.  The Workers’ Compensation Board ultimately awarded death benefits to plaintiff and her four minor children.  Benefits were paid by the State Insurance Fund, as workers’ compensation carrier to the decedent’s employer.

While the claim for death benefits was pending, plaintiff also commenced a wrongful death case against the driver of the motor vehicle that struck the decedent.  At the conclusion of a jury trial, plaintiff was awarded $294, 359.74.  By way of stipulation filed after the trial, all parties agreed that the entirety of the award would be paid under the wrongful death cause of action. 

Subsequently, the State Fund asserted a claim for a credit/offset pursuant to Workers’ Compensation Law § 29(4).  The State Fund also stopped its payments under earlier reached the death benefits agreement.  In response, plaintiff immediately moved to compel the State Fund to continue to issue payments pursuant to the earlier agreement. 

Upon review by the Second Department, the Court ruled that the Trial Court did not have jurisdiction to decide the viability of the State Fund’s position.  Rather, the Second Department noted that questions regarding the availability of workers’ compensation benefits rest with the Workers’ Compensation Board.

FIJAL’S FEDERAL FOCUS
Katherine A. Fijal

[email protected]

2/19/10           Versai Management Corp. v. Clarendon American Ins. Co.
Fifth Circuit Court of Appeals

Policy Language Is Paramount When Analyzing Coverage Issues
Once again there have been no new coverage decisions from the United States Court of Appeals for the Second Circuit. In fact, all of the Circuit Courts have been relatively silent on insurance issues but we did find an interesting case in the Fifth Circuit, involving a property damage claim resulting from Hurricane Katrina.

The Appellant Versai Management Corporation [“Versai”] appeals the district court’s grant of summary judgment in favor of Appellees Clarendon American Insurance Company [“Clarendon”] and Employers Fire Insurance Co. [“EFIC”] on:  (1) Versai’s contract claims for un paid insurance proceeds for property damage, business interruption, replacement costs, and code compliance upgrades; and (2) Versai’s claims that EFIC and Clarendon violated Louisiana law by failing to promptly settle claims and by misrepresenting the terms of their policies. 

Versai manages the Versailles Arms Apartments in New Orleans.  These are federally subsidized apartments through the Department of Housing and Urban Development.  The apartments consist of fifty residential buildings.  Forty-nine of the buildings suffered extensive damage during Hurricane Katrina in August 2005 and were rendered uninhabitable until the property was repaired.  The fiftieth building was destroyed in a natural gas explosion during the storm. 

Versai notified its insurers of the hurricane damage to the property and submitted claims with the assistance of its retained private adjusters and contractors. 

The repairs to the buildings were estimated to cost $17,878,326.  Certain primary insurers paid claims in the amount of $8.5 million.  The Clarendon and EFIC policies provided “non-flood” insurance on the apartments in excess of the $2.5 million provided by Lloyds of London, and this coverage was limited to a maximum recovery of $13,411,288.  The Clarendon and EFIC policies follow the same terms of the underlying Lloyd’s policy, but provided excess coverage once the Lloyds insurance limits were met.

After the properties were inspected a report was submitted stating that Clarendon and EFIC each owed Versai and undisputed sum of $2,972,991.38.  Both companies issued a check for that amount.

After payment was made, the original estimate of the costs to repair the premises increased by about $10 million to include the costs of compliance with updated building codes which would require additional repairs.  No payments for code compliance were rendered.

Ultimately, Versai filed suit against Clarendon and EFIC alleging that Clarendon and EFIC had not paid the full amount due under the excess non-flood policies for property damage, business interruption loss, replacement costs, and code replacement upgrades.  Versai alleges that the failures amounted to breaches of contract, breaches of duties of good faith and fair dealing and violations of Louisiana Revised Statutes section 22:1892 and 22:1973. 

The district court granted summary judgment for EFIC and Clarendon on all claims, concluding that Versai had failed to present evidence showing a genuine issue of material fact.

Versai challenges the district court’s grant of summary judgment for EFIC and Clarendon with respect to its property loss claims.  The district court found that Versai had presented no evidence to show that it was entitled to additional compensation beyond the approximately $6 million it had already received from EFIC and Clarendon because:  (1) Versai failed to support its August 23 proofs of loss with documentation; (2) Versai failed to submit timely expert reports to support its claims; and (3) Versai’s argument was estopped because a deposition from its company president contradicted its claim for relief.

As to the first issue the Fifth Circuit agreed with Versai that the district court was not at liberty to grant summary judgment based on its “failure” to support its August 23 proofs of loss with additional documentation where the insurance policy created no such obligation.  The section of the Excess Property Conditions policy, entitled “Proof of Loss,” is as follows:

The insured shall file with this Company, or its agent, within ninety (90) days from the date of discovery of the loss occurrence, a proof of loss signed and sworn to by the insured, stating to the best knowledge and belief of the insured;
A)  The interest of the insured and of all the others in the property affected;
B)  The value of each item thereof and the amount of loss or damage thereto;
C)  All encumbrances thereon;
D)  All other contracts of insurance, whether valid or not, covering any of the property affected, and shall furnish a copy of all the descriptions and schedules in all such insurance policies, if required.

The Fifth Circuit found that the plain reading of this section reveals no requirement for additional documentation to support a proof of loss.   The court refused to buy the argument that they should read the contested requirement in the policy because “all” similar insurance policies require documentation.

Since the policy language did not preclude recovery the court had to determine whether Versai submitted evidence demonstrating its entitlement to additional payment for property damage which would permit a reasonable jury to find in Versai’s favor.   The Court found that the affidavits from a principal of Versai and its construction company were sufficient to support a claim and were not foreclosed because deposition testimony which was given before it was discovered that one of the adjusters stole two checks from the insurers which were paid to Versai.

Versai also disputes the district court’s grant of summary judgment on its claim for additional payment for business interruption losses.  The district court granted summary judgment for EFIC and Clarendon on the basis that Versai had already been compensated for upper-floor business interruption losses by the two checks which were given to the adjuster who allegedly stole the checks.  Versai argues that its fact-witness affidavits, particularly that of the company president were sufficient to support its claim for business interruption losses. 

The Fifth Circuit held that pursuant to the Federal Rules of Evidence confirms that the company president’s position permits her a broader range of testimony than a traditional lay witness would possess when testifying to matters concerning Versai’s business. The court found that the president’s statements were sufficient to raise an “issue of material fact” suggesting that Versai was entitled to compensation for the business-interruption losses at issue.

Versai also contested the district court’s grant of summary judgment on its claim for payment for the costs of bringing the Apartments into compliance with current building codes.  The district court granted summary judgment for EFIC and Clarendon because Versai had not produced any evidence showing it had incurred such costs – a prerequisite to payment under the terms of the insurance contract.

The Fifth Circuit, relying on the terms of the policy, held that Versai is not entitled to costs of compliance until after it has incurred the expenses of code compliance.  The court pointed out that where the language of an insurance policy is clear and unambiguous, courts must enforce it as it is written.

In the same vein, the Court also determined that Versai’s claim for replacement costs likewise was properly dismissed because Versai has not completed repairs on its property as required by the insurance policy. Versai’s argument that the insurer’s duty to pay replacement costs is triggered when Versai demonstrates “readiness” to enact replacement on the property, was discounted by the court because the language of the policy did not support that interpretation.

Next, the Fifth Circuit addressed Versai’s claims for relief under Louisiana Revised Statutes section 22:1892 and 22:1973.  These statutes vest the insurer with an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured. 

To prove that EFIC and Clarendon breached their insurers’ duties to timely pay Versai’s claims, Versai must show that (1) the insurer has received satisfactory proof of loss, (2) the insurer fails to tender payment within thirty days of receipt thereof, and (3) the insurer’s failure to pay is arbitrary, capricious or without probable cause. 

The Court held that with respect to the first factor Louisiana has adopted liberal rules concerning the lack of formality relative to proof of loss.  So long as the insurer obtains sufficient information to act on the claim, “the manner in which it obtains the information is immaterial”.  As to the second factor, the Court found that the insurers had sufficient information to support proof of loss and that payment was not made within thirty days therefore.  The final factor addressed was whether of not the insurers acted in an “arbitrary and capricious” manner. The Court pointed out that the Louisiana Supreme Court has recognized that “any insurer who fails to pay an undisputed amount has acted in a manner that is, by definition, arbitrary, capricious or without probable cause.  Thus, the failure to pay an undisputed amount is a per se violation of the statute.

The Fifth Circuit also found that Versai is entitled to a reversal of the district court’s grant of summary judgment on its claim of misrepresentation under Louisiana Revised Statutes section 22:1973(B)(1).  Versai presented evidence that EFIC and Clarendon’s adjuster misrepresented the availability of insurance upgrades for compliance with updated business codes.  The court stated that a misrepresentation occurs when an insurer either makes untrue statements to an insured concerning pertinent facts of a policy or fails to divulge pertinent facts to the insured.  The terms of the statute require that the misrepresentations relate to a coverage issue which would involve facts about the policy itself, such as the amount of coverage, lapse or expiration of the policy, or exclusions from coverage.  Code upgrade coverage is a “coverage issue under the statute, so a misrepresentation of code upgrade coverage would be a statutory violation.  The Court found that Versai has alleged facts sufficient to preclude summary judgment on the misrepresentation claim.

Practice Note:  Although this decision is specific to the application of Louisiana Law, it verifies that perhaps the most important aspect of coverage analysis involves close scrutiny of the policy terms and conditions.   

JEN’S GEMS
Jennifer A. Ehman
[email protected]

3/1/10             Arthur Kill Power, LLC v. American Cas. Safety Ins. Co.
Supreme Court, New York County
Additional Insured Status Under Georgia Law
Arthur Kill Power LLC (“Arthur”) engaged Wing Environmental, Inc (“Wing”) to perform asbestos abatement at Arthur’s Staten Island power plant.  Thereafter, Jose Barros (“Barros”), a Wing employee, allegedly sustained personal injuries in a slip and fall on grease.

Barros commenced an action against Arthur and other defendants.  Arthur then impleaded Wing, seeking contractual indemnification, common-law indemnification and contribution, and damages for Wing’s alleged failure to procure insurance. 

ACE American Insurance Company (“ACE”) issued a liability insurance policy to Arthur, and American Safety Casualty Insurance Company (“ASCIC”) issued a policy to ETW Fireproofing, Inc., which contained an endorsement that named Wing as an additional insured. 

Arthur argued that, pursuant to the ASCIC policy, it was also an additional insured.  ASCIC disclaimed coverage citing an employer’s liability exclusion.  ASCIC also noted that, even it owed coverage, it was excess to any policy issued to Arthur. 

Per a choice of law provision in the ASCIC policy, the court applied Georgia law.  The court then determined that the ASCIC policy defined an additional insured as “any person shown as an Additional Insured on a certificate of insurance issued by us to our authorized representative, or by endorsement to the policy, provided such person is required to be named as an Additional Insured in a contract with you…”  Per Georgia law, the word contract was interpreted to include all the documents that were executed contemporaneously.  Therefore, the proposal, purchase order and agreement, where read together.  As the agreement between Wing and Arthur required that Arthur be named as an Additional Insured under the ASCIC policy and a certificate of insurance was issued to Arthur by an authorized representative, Arthur was an additional insured. 

The court then examined the employer’s liability exclusion.  It held that as the exclusion contained an exception for insured contracts, and the agreement between Wing and Arthur was an insured contract, it did not apply.  Lastly, the court determined that the ACE policy was primary and the ASCIC policy was excess.

2/24/10           Rite Aid of New York, Inc. v. East 51st Street Development Co.
Supreme Court, New York County
Court Allows Insurer to Pay Policy Limits on One Case to Extinguish Defense Obligations on Other Pending Claims
In March 2008, a crane collapsed on East 51st Street, New York.  Lincoln General Insurance Company (“Lincoln”) was the primary insurance carrier for the project’s crane company, Joy Contractors, Inc.  The owner, developer and general contractor were additional insureds under the Lincoln policy.  The policy provided one million dollars in coverage for the multi-party litigation.  Lincoln has picked up the defense of several contractors above it.

 

Lincoln moved to intervene in the instant action and settle the case with Rite Aid, a store damaged in the accident.  Lincoln also moved for a declaration that upon the payment of its policy limit in either settlement of Rite Aid’s claim or by depositing it with the court, its obligation to pay the defense costs of its insured and additional insureds would be extinguished. 

The court held that absent an allegation of bad faith, or a claim that a settlement is unreasonable, an insurer who pays the entire proceeds of its policy in settlement of a claim in multi-party litigation, can be released from the continuing obligation to defend where the policy’s language is clearly and unambiguously provides for such result. 

At oral arguments, the court rejected Lincoln’s application for the settlement of the Rite Aid action as there was some question regarding how much loss Rite Aid actually suffered.  The court recommended the parties seek more reasonable settlements in the cases. 

In response, Lincoln proposed that it pay the entire policy to the estate of Clifford Canzona, a construction worker killed in the collapse.  The court rejected this proposal as there was not sufficient evidence that the amount was reasonable.  Lincoln then proposed to intervene in the Perez action and to divide its policy in settlement of the Perez claim and the Rite Aid claim.  Both claimants offered to provide full releases to defendants. 

The court concluded that settlement with Perez and Rite Aid was fair and reasonable, and it permitted Lincoln to intervene in both actions.  Therefore, Lincoln was released of its obligation to provide any further defense. 
Editor’s Note:  This is a very unusual result.  There are many cases presently pending against Joy Contractors, Lincoln’s named insured.  As noted, Lincoln has picked up the defense of several parties.

The court is permitting Lincoln to walk away from the defense of pending matters by exhausting its indemnity dollars on a very few, based on a “good faith settlement” approach. 

2/24/10           Ciampa Estates LLC v. Tower Ins. Co. of New York
Supreme Court, New York County
Additional Insured With Respect to Acts or Omissions
Accident occurred on a construction site.  Tower Insurance Company (“Tower”) issued a policy of insurance to subcontractors Sanita Construction Corp. (“Sanita”) and Bellarose Construction Corp (“Bellarose”).  The court held that plaintiff Ciampa Management Corp. (“Management”) had no contractual relationship with Sanita or Bella and it was not listed as an insured on Tower’s policy.  Nevertheless, plaintiff Ciampa Estates, LLC (“Estates”) did qualify as an additional insured but “only with respect to acts or omissions of the named insured, his agents, servants, and employees for which the Additional Insured may be held liable.” 

Defendants argued that although Estates was an additional insured the accident was outside the risks defined in the policy.  The court disagreed as the underlying action arose out of work being performed by Sanita and Bellarose’s employees.  Therefore, the policy, with regard to Estates, was triggered.  The court also held that the additional insurance coverage was primary.  In the end, however, Estates received no coverage as it failed to comply with the condition precedent of prompt notice of claim.

EARL’S PEARLS
Earl K. Cantwell

[email protected]

Referring Out a Case:  Referring in a Malpractice Claim
In Bloom v. Hensel, 2009 WL 281304 (N.Y. App. Div. 2/6/09), a New York appeal court held that an attorney who referred a case to another lawyer could retain an attorney/client privilege with the clients based upon an alleged oral fee sharing arrangement and some alleged minor continued involvement in the case.  The referring attorney moved for summary judgment on grounds that he had no remaining involvement in the bodily injury case in response to a legal malpractice claim.  The trial court granted the motion, but the appellate court reversed on a divided vote. 

The appellate court held there were questions of fact whether the referring attorney maintained and retained an attorney-client relationship with the clients.  There was testimony regarding an oral agreement to split the fee between the attorneys.  Some pleadings in the case listed both attorneys as the clients’ attorneys.  The referral attorney also apparently sent copies of correspondence to the clients to the referring attorney.  The court held this evidence raised a factual issue whether an attorney/client relationship continued between the clients and the referring attorney.

A strong dissent argued that, at most, the evidence suggested that the clients believed they were still being represented by the referring attorney, but this is insufficient to create an attorney/client relationship because a unilateral belief of the client concerning representation is insufficient.  The referral attorney admitted that he did all the work on the personal injury case and, once the referral was made, the clients apparently had no further contact with the referring attorney. 
Cases in other jurisdictions have been equally split and inconsistent.  If the referring attorney remains involved in the case to some extent, that may suggest a continuing attorney/client relationship.  In other cases, the presence of an express or implied referral fee/agreement has been ruled to help establish a continuing attorney/client relationship, but other cases have held that an attorney is not vicariously liable for the claimed negligence of counsel to whom a case is referred. 

The lessons to be learned from these cases are that when a bona fide referral is made it should be clearly made, documented in writing, all file materials passed on to the new attorney, and the clients directed to address all further correspondence and communication to the new attorney.  Any referral agreement should be in writing and state to what extent, if any, the referring attorney is going to remain involved (or not) in the case and proceedings.  If the referring attorney is not going to be involved in any proceedings, that disclaimer should be explicitly set forth, and adhered to in practice.  If there has been a bona fide, complete referral of the case, there would also seem to be no reason why the referring attorney would be copied on pleadings or significant correspondence since the client relationship at that point would have passed to the new attorney. 
If it is a true referral situation, the referring attorney’s name should not be included on pleadings or correspondence.  Referring counsel should also not meet separately with the clients without the presence of the handling attorney.  All billings in the case, whether for fee or disbursements, should be sent to the clients by the handling attorney.  Inquiries about the case should be directed to the office of the handling attorney.  Referring counsel should be mindful of appearance and maintaining a clean record that the case and client communications are with the handling counsel.  The pitfall is that as a referring attorney remaining even remotely involved in the case as a “family friend” or business confidante may inject you into a legal malpractice claim if the litigation or business transaction flounders.


ACROSS BORDERS


2/26/10           Boyd v. Evanston Insurance Company
Fifth Circuit Court of Appeals
The Act Underlying The Legal Malpractice Claim Fell Within The Policy Exclusion Where Appellants Did Not Disclose Their Knowledge of The Act in The Application for Coverage
Byrd and Associates ( Byrd) represented the Bowie family in a medical malpractice action filed in November 1999. An expert was not named in the time set forth in the scheduling order. An extension of time was denied by the Court and the case was dismissed. This dismissal was affirmed by the Supreme Court of Mississippi on December 31, 2003. The Bowie family filed a legal malpractice action against Byrd on April 29, 2004 and Byrd promptly notified their carrier, Evanston. Byrd submitted their application for malpractice insurance with Evanston on November 13, 2002. At this time the Bowie case was pending before the Mississippi Supreme Court and in the application stated that they were unaware of any act reasonably expected to result in a claim. Insurance was issued with an effective date of February 28, 2003 and was renewed a year later with the same responses. The Court found that Byrd had knowledge of both the 2001 failure to name experts and the 2003 dismissal of the action prior to renewal and the failure to disclose this barred coverage.
Submitted by: Kay Gaffney Crowe, Barnes Alford

2/25/10           School Board v. Commonwealth
Virginia Supreme Court

Insurer Has Duty to Provide Coverage for Monetary Liability Arising Out of Action Under IDEA
The Commonwealth through its Division of Risk Management insures the School Board. Stefan Jaynes brought an action against the School Board. The Commonwealth was timely notified of this action. The Commonwealth took the position that the recovery under the IDEA (Individuals with Disabilities Education Act) was a reimbursement not a monetary claim under the policy A judgment against the School Board was obtained by Stefan Jaynes in the amount of $191,485.67. The Supreme Court found that the action under the IDEA was a cause of action and the award was a claim for damages and therefore covered under the insurance contract.
Submitted by: Kay Gaffney Crowe, Barnes Alford

REPORTED DECISIONS

 

Vera v. Islam
Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Steven N. Feinman of counsel), for Pierre-Paul Kesner and
Mist Hacking Corp., appellants.
Bamundo, Zwal & Schermerhorn, LLP, New York (Ben
Bartolotta of counsel), for respondent.
Order, Supreme Court, Bronx County (Dominic R. Massaro, J.), entered July 31, 2009, which denied defendants' motions for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d), unanimously affirmed, without costs.
Assuming that defendants established their prima facie entitlement to summary judgment by showing that plaintiff did not suffer a serious injury (see e.g. Rossi v Alhassan, 48 AD3d 270 [2008]), plaintiff met his burden in opposition by submitting affirmed MRI reports of a radiologist and an affirmed report of his treating physician, which raised issues of fact as to whether he suffered serious injuries caused by the accident. The MRI reports provide objective evidence of disc herniations and bulges in the cervical and lumbar spine, and the physician asserted that he performed objective tests quantifying decreased ranges of motion in the cervical and lumbar spine, both shortly after the accident and three years later, and that the injuries and resulting limitations were caused by the accident (see Colon v Bernabe, 65 AD3d 969, 970 [2009]; Hernandez v Rodriguez, 63 AD3d 520 [2009]).
The conclusions of defendant's radiologist that the observed disc changes in plaintiff, who was 30 years old at the time of the accident, were normal or unrelated to the accident were sufficiently rebutted by the plaintiff's radiologist (see Frias v James, __ AD3d __, 2010 NY Slip Op 301 [1st Dept 2010]; June v Akhtar, 62 AD3d 427, 428 [2009]).


Benitez v. Lashnitz
Cannon & Acosta, LLP, Huntington Station, N.Y. (June Redeker
of counsel), for appellant.
Richard T. Lau, Jericho, N.Y. (Kathleen E. Fioretti of counsel),
for respondent Meadow Lashnitz.
James Hiebler, Hempstead, N.Y. (Shayne, Dachs, Corker, Sauer
& Dachs, LLP [Jonathan A. Dachs],
of counsel), for respondent Santos
Umana.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Adams, J.), dated January 21, 2009, which granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of 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 reversed, on the law, with one bill of costs, and the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them are denied.
The Supreme Court properly determined that the defendants met their prima facie burdens of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). However, the Supreme Court erred in determining that the plaintiff failed to raise a triable issue of fact.
In opposition to the defendants' motions, the plaintiff relied on the affidavit of her treating chiropractor, Dr. Nicholas Martin. In his affidavit, Dr. Martin opined, based upon his contemporaneous and most recent examinations of the plaintiff, that the plaintiff's cervical and lumbar injuries were permanent and causally related to the subject accident. Thus, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to her cervical and lumbar spine as a result of the subject accident (see Sanevich v Lyubomir, 66 AD3d 665; Azor v Torado, 59 AD3d 367, 368; Williams v Clark, 54 AD3d 942, 943; Casey v Mas Transp., Inc., 48 AD3d 610, 611; Green v Nara Car & Limo, Inc., 42 AD3d 430, 431; Francovig v Senekis Cab Corp., 41 AD3d 643, 644-645).


Daly-Caffrey v. Licausi
Breen & Clancy, Hauppauge, N.Y. (Anne Marie Caradonna of
counsel), for appellant.
Bamundo, Zwal & Schermerhorn, LLP, New York, N.Y.
(Ben Bartolotta 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, Nassau County (Cozzens, J.), dated February 17, 2009, which denied his motion to dismiss the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and granted the plaintiff's cross motion for leave to amend the bill of particulars.
ORDERED that the order is modified, on the law and the facts, by deleting the provision thereof granting the plaintiff's cross motion for leave to amend the bill of particulars and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed, without costs or disbursements.
"Motions to amend or supplement a bill of particulars are governed by the same standards as those applying to motions to amend pleadings" (Koch v St.FrancisHospital, 112 AD2d 142, 143; see Carranza v Brooklyn Union Gas Co., 233 AD2d 287). A plaintiff seeking leave to amend a bill of particulars by asserting a new injury must show a reason for the delay in asserting the injury and include a medical affidavit showing a causal connection between the alleged injury and the original injuries sustained (see Kyong Hi Wohn v County of Suffolk, 237 AD2d 412; Simino v St. Mary's Hosp. of Brooklyn, Catholic Med. Ctr. of Brooklyn & Queens, 107 AD2d 800). In this case, the plaintiff sought to add a new injury to the bill of particulars which had not been mentioned previously, and which did not appear in the medical records until nearly a year after the date of the accident. Under these circumstances, it was an improvident exercise of discretion to grant the plaintiff leave to amend her bill of particulars (see Kraycar v Monahan, 49 AD3d 507).
The defendant failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see McMillan v Naparano, 61 AD3d 943; Lunja v Mocha Limo Car Serv., 50 AD3d 971; Dettori v Molzon, 306 AD2d 308). Since the defendant failed to satisfy his prima facie burden, it is unnecessary to consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Weingrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).


Safer v. Silbersweig
Philip J. Rizzuto, P.C., Carle Place, N.Y. (Kenneth R. Shapiro of
counsel), for appellants.
Martyn Toher & Martyn, Mineola, N.Y. (Joseph S. Holotka of
counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), entered July 21, 2009, as granted that branch of the defendant's motion which was for summary judgment dismissing the complaint on the ground that the plaintiff Dov Safer did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the defendant's motion which was for summary judgment dismissing the complaint on the ground that the plaintiff Dov Safer did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is denied, so much of the order as denied, as academic, that branch of the defendant's motion which was for summary judgment on the issue of liability is vacated, and the matter is remitted to the Supreme Court, Nassau County, for a determination on the merits of that branch of the motion.
The Supreme Court erred in failing to consider those claims of serious injury set forth in the amended bill of particulars of the plaintiff Dov Safer. The amended bill of particulars was properly served "as of course, prior to the filing of [the] note of issue" in this case (CPLR 3042[b]).
In addition, contrary to the Supreme Court's determination, the defendant failed to meet his prima facie burden of showing that the plaintiff Dov Safer (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 injured plaintiff alleged in his bill of particulars and amended bill of particulars that he sustained a traumatic brain injury as a result of the subject accident. The defendant's examining orthopedic surgeon, the only doctor who physically examined the injured plaintiff on behalf of the defendant, failed to address the injured plaintiff's allegations that he sustained such a brain injury as a result of the subject accident (see Hughes v Cai, 31 AD3d 385). On this basis alone, the Supreme Court should have denied that branch of the defendant's motion which was for summary judgment on the issue of serious injury.
Inasmuch as the defendant failed to meet his initial burden on that branch of his motion, summary judgment on the issue of serious injury should have been denied without regard to the sufficiency of the plaintiffs' opposition papers (see Hughes v Cai, 31 AD3d 385).
Since the Supreme Court denied, as academic, that branch of the defendant's motion which was for summary judgment on the issue of liability, we vacate that portion of the order and remit the matter to the Supreme Court, Nassau County, for a determination on the merits of that branch of the motion.


In the Matter of Progressive Northeastern Ins. Co. v. Akinyooye
Teresa Girolamo, Miller Place, N.Y., for appellant.
Robert P. Tusa, Garden City, N.Y. (Donald W. Sweeney of
counsel), for proposed additional respondent.

DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of an uninsured motorist claim, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Lally, J.), entered December 18, 2008, which, upon an order of the same court dated October 24, 2008, denying that branch of the petition which was to permanently stay arbitration, dismissed the proceeding with prejudice and, in effect, directed the parties to proceed to arbitration.
ORDERED that the judgment is affirmed, with costs.
Contrary to the petitioner's contention, the Supreme Court properly found, upon documentary submissions in lieu of a framed-issue hearing, that Allstate Insurance Company demonstrated that its insured was provided with a notice of intent to cancel and a cancellation notice fully compliant with Banking Law § 576, more than one year prior to the subject accident (see Crump v Unigard Ins. Co., 100 NY2d 12, 16; Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830; St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124; Matter of Autoone Ins. Co. v Zanders, 50 AD3d 682; Shia v McFarlane, 46 AD3d 320, 321; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680; Allstate Ins. Co. v Motor Veh. Acc. Indem. Co., 115 AD2d 264, 265). Accordingly, the Supreme Court properly, in effect, directed the parties to proceed to arbitration.
The petitioner's remaining contention is without merit.


Rivera v. Honey Express Cab Corp.
Law Office of Jeffrey M. Okun, P.C., New York (Jeffrey M.
Okun of counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for respondents.
Order, Supreme Court, New York County (Paul Wooten, J.), entered February 10, 2009, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff failed to raise an issue of fact in opposition to defendants' prima facie showing that he did not suffer a serious injury of either a permanent or a nonpermanent nature. While his experts quantified his losses in range of motion in 2007 and 2008 and opined that he suffered permanent injuries that were caused by the subject car accident, none of the experts provided range of motion assessments contemporaneous with the 2003 accident (see Mullings v Huntwork, 26 AD3d 214, 216 [2006]). Moreover, none of the experts addressed plaintiff's 1986 back injury (see Pommells v Perez, 4 NY3d 566, 574-575, 579-580 [2005]).
The motion court properly rejected the unsworn report by plaintiff's chiropractor (see Shinn v Catanzaro, 1 AD3d 195, 197-198 [2003]), which in any event provided no range of motion assessments contemporaneous with the accident.
As to plaintiff's 90/180-day claim, his bill of particulars and deposition testimony indicated that he was not confined to bed and home and did not miss any work following the accident. However, in his affidavit in opposition to the motion, plaintiff failed to raise a question of fact.
We have considered plaintiff's remaining contentions and find them unavailing.


Byong Yol Yi v. Canela
Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for appellant.
Kerner & Kerner, New York (Kenneth T. Kerner of counsel),
for respondent.
Order, Supreme Court, Bronx County (Lucy Billings, J.), entered on or about July 10, 2009, which denied defendant's motion for summary judgment dismissing the complaint for lack of serious injury, unanimously modified, on the law, to dismiss the 90/180-day claim and the claim for permanent loss of use, and otherwise affirmed, without costs.
Defendant met his initial burden of proof, even though only one of his doctors addressed plaintiff's MRIs and neither of them addressed the reports of plaintiff's chiropractor (see DeJesus v Paulino, 61 AD3d 605, 607 [2009]; see also Chintam v Fenelus, 65 AD3d 946, 947 [2009]). Defendant made a prima facie showing of entitlement to summary judgment on plaintiff's 90/180-day claim by pointing to plaintiff's deposition testimony that he was not confined to bed and home and returned to work within the first 90
days following his accident (see e.g. Alloway v Rodriguez, 61 AD3d 591, 592 [2009]).
In opposition, plaintiff raised a triable issue of fact except as to his 90/180-day and permanent loss claims. Although one of defendant's doctors opined that the changes shown in plaintiff's cervical and lumbar discs were age related, plaintiff's doctor opined that there was a causal relationship between the subject accident and plaintiff's neck and back pain (see Colon v Bernabe, 65 AD3d 969, 970 [2009]; Norfleet v Deme Enter., Inc., 58 AD3d 499, 500 [2009]). Plaintiff did not rely solely on MRIs showing bulging and herniated discs, as his doctor also performed straight-leg raising tests, which constitute "objective evidence of serious injury" (Brown v Achy, 9 AD3d 30, 32 [2004]). While plaintiff's doctor did not quantify all the limitations in plaintiff's ranges of motion, his report was sufficient on a qualitative basis (see Toure v Avis Rent a Car Sys., 98 NY2d 345, 353 [2002]). The affirmed report of plaintiff's doctor was admissible, even though it relied in part on the unsworn reports of another doctor who read plaintiff's MRIs (see Rivera v Super Star Leasing, Inc., 57 AD3d 288 [2008]; see also Pommells v Perez, 4 NY3d 566, 577 n 5 [2005]).
Defendant's arguments that plaintiff's doctor did not show limitations in plaintiff's spine contemporaneous with the 2006 accident and that there was a gap in treatment are unpreserved, and we decline to consider them (see e.g. Chintam, 65 AD3d at 947; Alicea v Troy Trans., Inc., 60 AD3d 521, 521-522 [2009]).
Plaintiff failed to raise a triable issue of fact as to his 90/180-day claim. He testified that he was not confined to bed and home and that he returned to work within the first month after the accident (see Colon, 65 AD3d at 971; Alicea, 60 AD3d at 522). He also failed to raise a triable issue of fact as to his claim that he sustained a permanent loss of use of a body organ, member, function or system. Such loss must be total (see Oberly v Bangs Ambulance, 96 NY2d 295, 299 [2001]), and the report of plaintiff's doctor showed that plaintiff sustained limitations, but not a total loss of use.
We have considered defendant's remaining contentions and find them unavailing.


Beazer v. Webster
Kay & Gray, Westbury (Lynn Golder of counsel), for
appellants.
Robert D. Rosen, Roslyn, for respondent.
Order, Supreme Court, New York County (Paul Wooten, J.), entered December 3, 2008, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants failed to meet their prima facie burden of establishing that plaintiff did not suffer a serious injury under Insurance Law § 5102(d). Defendants' experts did not address or attempt to distinguish the objective findings of plaintiff's MRI, the EMG/NCV scan, and the other evidence of serious injury (see Patterson v Rivera, 49 AD3d 337 [2008]). Defendants' failure to indicate the objective tests used to determine the range of motion in plaintiff's cervical spine was fatal to their efforts to establish a prima facie case for summary dismissal (Offman v Singh, 27 AD3d 284 [2006]).


Garcia v. Leon
Kaplan & McCarthy, Yonkers (Jeffrey A. Domoto of counsel),
for appellants.
Freed & Lerner, New York (Martin A. Lerner of counsel), for
respondents.
Order, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered January 22, 2009, that denied defendants' motion for summary judgment dismissing plaintiffs' claims based on Insurance Law § 5102(d), unanimously modified, on the law, the motion granted to the extent of dismissing plaintiffs' claims based on the 90/180 provision of Insurance Law § 5102(d), and otherwise affirmed, without costs.
Defendants do not argue on appeal that the court erred when it ruled defendants failed to meet their initial burden of proof as to plaintiff Mark Garcia's injuries, as they limited their brief to a discussion of only Jennifer Garcia's injuries. Assuming that defendants met their initial burden as to plaintiff Jennifer Garcia, the affidavit of her treating chiropractor, taken in conjunction with her medical experts' unsworn statements and her MRI tests, raises questions as to whether her shoulder and cervical and lumbar spinal injuries are permanent or significant, and not merely preexisting, degenerative, or caused by a subsequent 2007 accident (see Liriano v Ostrich Cab Corp., 61 AD3d 543 [2009]; Hammett v Diaz-Frias, 49 AD3d 285 [2008]). Accordingly, triable issues of fact were presented as to whether plaintiff Jennifer Garcia sustained serious injuries that were significant or permanent under section 5102(d) when the vehicle plaintiffs were riding in collided with defendants' vehicle while defendants were changing lanes.
Nevertheless, upon a search of the record, we find that defendants are entitled to summary judgment as to both plaintiffs' 90/180 day claims based upon evidence that neither of the plaintiffs missed work or was otherwise unable to perform usual and customary daily activities for at least 90 of the 180 days following the accident (see Liriano, 61 AD3d at 544).


Casimir v. Bailey
Baker, McEvoy, Morrissey & Moskovits, P.C., New York,
N.Y. (Thomas Torto [Jason Levine], of counsel), for appellant.
Daniel P. Buttafuoco & Associates, PLLC, Woodbury, N.Y.
(Ellen Buchholz of counsel), for
respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Starkey, J.), entered July 13, 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 reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.
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, 350-351; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact.
The plaintiff's medical experts, Dr. Raj Tolat and Dr. Andrew Davy, failed to address the findings of the defendant's radiologist, who concluded that the bulging and herniated discs observed in the plaintiff's cervical and lumbar spine magnetic resonance imaging films were degenerative in nature and unrelated to the subject accident. Thus, the conclusions of the plaintiff's experts that the injuries and limitations noted during their respective examinations were the result of the subject accident were speculative (see Nicholson v Allen, 62 AD3d 766; Ferebee v Sheika, 58 AD3d 675, 676; Johnson v Berger, 56 AD3d 725; Ciordia v Luchian, 54 AD3d 708).
Furthermore, the affirmed magnetic resonance imaging reports of Dr. Robert Diamond, and the EMG report of Dr. Tolat, merely revealed the existence of disc bulges and disc herniations in the plaintiff's cervical and lumbar spine and radiculopathy. The mere existence of a herniated or bulging disc or radiculopathy 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 Rivera v Bushwick Ridgewood Props., Inc., 63 AD3d 712; Niles v Lam Pakie Ho, 61 AD3d 657; Pompey v Carney, 59 AD3d 416). Such evidence was clearly lacking in opposition to the defendant's motion. The deposition testimony of the plaintiff was insufficient to raise a triable issue of fact as well (see Washington v Mendoza, 57 AD3d 972; Luizzi-Schwenk v Singh, 58 AD3d 811, 812; Sealy v Riteway-1, Inc., 54 AD3d 1018).
Lastly, the plaintiff failed to submit competent medical evidence that the injuries he allegedly sustained in the subject accident rendered him unable to perform substantially all of his daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Washington v Mendoza, 57 AD3d at 974; Rabolt v Park, 50 AD3d 995; Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Sainte-Aime v Ho, 274 AD2d 569).


Kim v. Orourke


Sim & Park, LLP, New York, N.Y. (Sang J. Sim of counsel), for
appellant.
Muscarella & Diraimo, LLP (Mead, Hecht, Conklin &
Gallagher, LLP, Mamaroneck, N.Y.
[Elizabeth M. Hecht], of counsel), for
respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), entered February 17, 2009, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
The defendant failed to make a prima facie 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 defendant's own examining neurologist reported findings of limitations in the ranges of motion in the cervical and lumbar regions of the injured plaintiff's spine (see Powell v Prego, 59 AD3d 417; Norme v Ajons, 57 AD3d 749; Wright v AAA Constr. Servs., Inc., 49 AD3d 531; Umar v Ohrnberger, 46 AD3d 543; Bentivegna v Stein, 42 AD3d 555), and he failed to "explain or substantiate, with any objective medical evidence, the basis for his conclusion that the noted limitations were self-restricted" (Bengaly v Singh, 67 AD3d 1030, 1031; see Hi Ock Park-Lee v Voleriaperia, 67 AD3d 734; Chang Ai Chung v Levy, 66 AD3d 946; Moriera v Durango, 65 AD3d 1024). Since the defendant failed to establish his prima facie entitlement to judgment as a matter of law, we need not examine the sufficiency of the plaintiff's opposition papers (see Held v Heideman, 63 AD3d 1105; Landman v Sarcona, 63 AD3d 690; Alam v Karim, 61 AD3d 904; Liautaud v Joseph, 59 AD3d 394).


Noh v. Duffe
Law Offices of Dennis A. Maycher, P.C., New York, N.Y. (Steven
A. Hershkowitz of counsel), for appellants.
DeSena & Sweeney, LLP, Hauppauge, N.Y. (Shawn P.
O'Shaughnessy of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Nassau County (McCarty, J.), entered November 21, 2008, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d), and denied, as academic, their cross-motion for leave to file a note of issue.
ORDERED that the order is affirmed, with costs.
Contrary to the plaintiffs' contentions, the defendant established, prima facie, through the affirmed reports of her expert neurologist, orthopedist, and radiologist, as well as the plaintiffs' deposition testimony, that neither of the plaintiffs sustained 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). The plaintiffs' submissions were insufficient to raise a triable issue of fact, as the plaintiffs' subjective complaints of pain and limitation of motion were unsubstantiated by verified objective medical findings (see Dantini v Cuffie, 59 AD3d 490; Villeda v Cassas, 56 AD3d 762; Ranzie v Abdul-Massih, 28 AD3d 447; Lagana v Shamsian, 270 AD2d 313).
In light of our determination, it is unnecessary to address the plaintiffs' remaining contention.

Jamal v Gohel


Gregory J. Allen, Albany, N.Y. (Tommasino Salvatore Conte of
counsel), for nonparty-appellant.
Bruce G. Clark & Associates, P.C., Port Washington, N.Y.
(Diane C. Cooper of counsel), for
respondent.


DECISION & ORDER
In an action, inter alia, to recover damages for wrongful death, nonparty New York State Insurance Fund appeals from an order of the Supreme Court, Dutchess County (Brands, J.), dated November 10, 2008, which, among other things, granted the plaintiff's motion to extinguish its right to claim a credit or offset against the Workers' Compensation death benefits it was obligated to pay to the plaintiff and her children, in an amount equal to the proceeds of the jury award in the action, to compel it immediately to reinstate those death benefits, and to compel it immediately to pay those death benefits it had refused to pay, retroactive to April 9, 2008.
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion is denied.
The plaintiff filed a claim for death benefits with the New York State Workers' Compensation Board (hereinafter the Board), on her own behalf and on behalf of her four minor children, in connection with the death of her husband (hereinafter the decedent), in a work-related automobile accident that occurred on December 9, 1999. The Board awarded death benefits, payable by the New York State Insurance Fund (hereinafter SIF), the Workers' Compensation insurance carrier for the decedent's employer. The plaintiff, as administrator of the decedent's estate and on her own behalf, also commenced this wrongful death and personal injury action against Pravina V. Gohel, the driver of a vehicle involved in the decedent's accident. After a jury trial in the Supreme Court, judgment was entered in favor of the plaintiff and against Gohel in the total sum of $294,359.74. The plaintiff then obtained a decree from the Surrogate's Court, inter alia, approving both the allocation of the entire amount of the proceeds of the jury award to the wrongful death cause of action and the discontinuance of the cause of action alleging conscious pain and suffering. Thereafter, SIF retroactively consented to the Surrogate's decree, and waived its statutory right pursuant to Workers' Compensation Law § 29(1) to a lien against the recovery.
Subsequently, however, SIF asserted its right pursuant to Workers' Compensation Law § 29(4) to claim a credit or offset against the death benefits that it was otherwise obligated to pay to the plaintiff and her children in an amount equal to the proceeds of the jury award. SIF consequently suspended its payments of those benefits. The plaintiff moved in the Supreme Court to extinguish SIF's right to claim any credit or offset against the death benefits, to compel SIF to reinstate the death benefits, and to compel SIF immediately to pay the death benefits it had refused to pay, retroactive to April 9, 2008, contending that SIF failed to reserve its right to claim a credit or offset. In the order appealed from, the Supreme Court granted the motion. We reverse.
The Supreme Court erred in entertaining the plaintiff's motion. "Primary jurisdiction with respect to determinations as to the applicability of the Workers' Compensation Law has been vested in the Workers' Compensation Board" (Botwinick v Ogden, 59 NY2d 909, 911; see Liss v Trans Auto Sys., 68 NY2d 15, 21). Where, as here, the availability of Workers' Compensation benefits "hinges upon questions of fact or upon mixed questions of fact and law, the parties may not choose the courts as the forum for resolution of the questions, but must look to the Workers' Compensation Board for such determinations" (Nunes v Window Network, LLC, 54 AD3d 834, 835; see Liss v Trans Auto Sys., 68 NY2d at 20-21; Botwinick v Ogden, 59 NY2d at 911; O'Rourke v Long, 41 NY2d 219, 228). The issue of whether an employer or insurer has adequately reserved its right to claim a credit or an offset is a matter of fact for the Board (see Matter of Brisson v County of Onondaga, 6 NY3d 273, 279; Matter of Richter v Ramistain Sys., 57 AD3d 1186, 1188; Matter of Place v Ryder, 2 AD3d 961, 962). Accordingly, the instant issue is properly one for the Board's determination.
In light of our determination, we need not reach the parties' remaining contentions.
SANTUCCI, J.P., DICKERSON, CHAMBERS and SGROI, JJ., concur.

 

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