Dear Coverage Pointers Subscribers:

We welcome 15 new subscribers to our ever-growing Coverage Pointers family.  We are delighted to know that you find the publication so valuable and the feedback we receive is truly appreciated.

Apologies to those who received the encrypted version of Coverage Pointers two weeks ago, without, as one subscriber put it, the "decoder ring."  Being down in Orlando at Disney World, we faced some unexpected challenges and appreciate your understanding.  Something in Disney was "goofy," if you can believe it.  As a reward, we have cut you subscription price in half for the remainder of the year, as an accommodation for our snafues. Could we be more generous?


With over 30 case reviews in this issue (including a guest review in Jen's Gems column), there is something for everyone's taste.

Of particular interest may be an interesting decision out of the Second Department in Burlington Insurance Company v. Utica First involving a very common question surrounding unsigned contracts. When a blanket AI provision requires an "executed contract," for the AI status to be effective, just what does that term mean?

Continuing Education Alerts: 

  • March 21-24:  PLRB/LIRB Claims Conference in San Antonio.
    I am pleased to see a few Coverage Pointers subscribers signed up to be entertained on Approaching Complex Liability Coverage Issues next week In San Antonio. Do stop by and say "hi".
  • 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."  Audrey and I will be there, so why not you? Registration information available on the DRI website, www.dri.org
  • May 8:   Practical Skills Course -- Basic Tort & Insurance Law Practice in Buffalo
    This full-day practical skills program is designed for the newly-admitted general practitioner, as well as the more experienced attorney, who is interested in learning or reviewing the issues confronting those who litigate cases involving bodily injury, whether incurred in an automobile accident, an accident at commercial or personal premises, or on a sidewalk. In addition to providing a general overview of substantive law relative to bodily injury litigation, the local faculties, comprised of experienced litigators, will also address recurring insurance issues as they relate to the specific claims and will address the topic of liens and subrogation, including the recent amendment to the General Obligations law and the new Medicare set aside legislation.

I am the Buffalo Program Chair and Steve Peiper will be presenting the Premises Liability Coverage Overview with a focus on additional insured coverage, commonly litigated coverage exclusions and priority of coverage issues.

  • 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.

From Audrey Seeley, Queen of No Fault:

There are only four weeks left until the DRI Insurance Coverage and Claims Institute!  If you are interested in attending it is never too late to register.  If you need more information please send me an email at [email protected].

 I received an interesting call last week and had a great discussion with a chiropractor regarding proper claims handling practices.  It was refreshing and I would encourage future discussions of that nature as everyone on both sides of the v can benefit from ensuring that their practices are in compliance with the no-fault regulations.  This does not require, and I certainly will not engage in, any discussion on how to win against a provider or against an insurer.  Rather, it is limited as to ensuring that your practices are in accordance with the regulations that govern you when you accept a no-fault patient and handle a no-fault claim.  Very refreshing indeed and I would welcome further inquiries.

In this edition there is a noteworthy arbitration decision regarding an insurer's claims handling practices which ultimately lead to a decision in the insurer's favor.  The insurer chose to appear pro se when the Applicant was represented by counsel.  Normally, this is not recommended but in this case it was warranted and the insurer was successful as the arbitration turned on communications between Applicant's counsel and this insurer.  Further, the insurer in this case acted appropriately when its claims handling was being challenged.  I commend the adjuster who argued this case, who I must disclose that I personally know, for her actions. 

Finally, Spring is here and if you need some spring training please feel free to contact us.

Audrey

One Hundred Years Ago Today, Insurance Companies Claimed the Headlines:

The (Syracuse) Post-Standard

March 19, 1910

Page 1, Col. 1

FIRE UNDERWRITERS

RAISED $10,000 FUND

FOR LEGISLATIVE USE

Testimony Brought Out by Superintendent
Hotchkiss Relates to Year 1901

Witness Claims Money Was Divided
Among Politicians, Including Aldridge
of Rochester


NEW YORK, March I8.-Charges that the fire insurance interests of the state contributed $10,000 in the early part of 1901 to influence legislation, $5,000 going to the Republican State Committee and $5,000 to various politicians, "were made today before Insurance Superintendent Hotchkiss in an investigation begun by him here today.

The name of George W. Aldridge, one of the up-state Republican leaders, was mentioned as the alleged recipient of a part of this fund.

How Money Was Divided.

Five thousand dollars of the money, according to the testimony of Elijah R. Kennedy, of the firm of Weed & Kennedy, fire insurance brokers, was handed over to the late Reuben L. Fox, for the Republican State Committee, and the other $5,000 was divided among politicians.  Mr. Kennedy was a member of the Committee on Laws and Legislation of the New York Board of Fire Underwriters in 1901. In his testimony  today he said that he had received what he thought was the approval of Governor Odell to a measure favoring the fire insurance companies, but that when 'the bill failed of the Governor's signature he made a special trip to Albany with Senator George R. Malby, now in Congress, to learn what held it up."  They found that the bill had been vetoed and it was only after the most urgent representations that Governor Odell was finally induced to sign it.

Editor's Note:  According to Gustavas Myers, in his History of Tammany Hall, On April 8, 1910, State Superintendent of Insurance Hotchkiss made a full report to Governor Hughes of the investigation that he had made.  Mr. Hotchkiss reported that the aggregate of disbursements by fire insurance companies in connection with legislation affecting those companies, from 1901 to 1909, probably exceeded $150,000.

"The moneys so paid," Mr. Hotchkiss reported, "were disbursed for traveling expenses of individuals and delegations; annual and special retainers of regular counsels; so-called retainers of legislative lawyers; contributions to political committees;  gifts or payments to men of political prominence and influence, and entertaining legislators and others, at times in a somewhat lavish manner."

Eventually, the Legislative Investigating Committee reported little corruption and the Republican's who pursued these charges ended up finding few indictable offenses.  This led to the Republican's losing to Tammany Hall Democrats being elected into office, including William Sulzer, a Tammany Hall regular and the only Governor in New York's history to be impeached.

From Steve Peiper, Purveyor of Property and Potpourri:

 After several weeks, at long last, we have a veritable flood of first-party decisions.  Okay, so maybe three is not a flood, but nonetheless, we have three honest-to-goodness decisions this week.  The only problem is that two of them are, shall we say, challenged on the courts' development of the relevant facts. 

What we can take from this week's offering is that the "earth movement" exclusion, despite some recent "erosion," is still alive and well.  Also, please take a moment to review the Haggerty v. Brady decision in this week's potpourri.  Once again, the written word prevails over oral assurances.  That's it for this week, see you in April. 

Steve

[email protected]

 

Also, One Hundred Years Ago Today:

 

New York Times
March 19, 1910
Page 1

CANNON BEATEN, FRIENDS ADMIT

Obtain Adjournment of House and
Urge Him to Retire from Rules Committee

He Stubbornly Refuses

Regular and Insurgent Republicans Can Arrange
Differences on Rules Only if He Quits

SESSION LAST 28 HOUSES

Democrats Refuse to Permit a Recess After Republicans Break the Quorum - Connors Tactics Denounced

Washington - March 18 --Admitting defeat upon enlarging and changing the membership of the Committee on Rules, but still striving desperately to prevent the personal humiliation of Speaker Cannon through his forcible elimination from that committee, the regular Republicans in the House this afternoon gained the help of enough insurgents to bring about a postponement of the whole matter until tomorrow so as to give time for rest and for further effort to reach a satisfactory compromise .

Editor's Note:  Joseph Gurney Cannon served as Speaker of the House of Representatives from 1903 to 1911.  The Republican ran the House with unprecedented and dominating control. "Uncle Joe" Cannon wielded the office of Speaker with unprecedented power. Not only did he serve as Speaker, but he was the Chair of the Rules Committee, the body which determined under what circumstances bills could be debated, amended, considered or whether they would come to a vote.  He also appointed Committee Chairs and members as he saw fit.  While Progressive Teddy Roosevelt, a fellow Republican was President, old guard Cannon made it quite difficult for Roosevelt's progressive proposals to see the light of day.

On March 17, 1910, Nebraska Representative George Norris led a coalition of 42 progressive Republicans and the entire delegation of 149 Democrats in a revolt. With many of Cannon's allies celebrating St. Patrick's day and absent from the House chamber, Norris introduced a resolution that would remove the Speaker as Chair of the Rules Committee and take away his power to appoint and assign Committees. It took two days of parliamentary wrangling for the House to finally adopt the resolution, one hundred years ago today, and the era of Cannon control was finally at an end.  While he remained as Speaker, he was no longer on the Rules Committee and thus divested of his power.

The Cannon House Office Building, completed in 1908, bears his name. The 86 year-old Cannon was the subject of the first Time Magazine cover on March 3, 1923, on the day of his retirement.  In Vol. 1, No. 1 of that publication, Time described Cannon this way:

Uncle Joe in those days was Speaker of the House and supreme dictator of the Old Guard. Never did a man employ the office of Speaker with less regard for its theoretical impartiality. To Uncle Joe, the Speakership was a gift from heaven, immaculately born into the Constitution by the will of the fathers for the divine purpose of perpetuating the dictatorship of the stand-patters in the Republican Party. And he followed the divine call with a resolute evangelism that was no mere voice crying in the wilderness, but a voice that forbade anybody else to cry out - out of turn.

 

In this Week's Coverage Pointers: 

KOHANE'S COVERAGE CORNER
Dan D. Kohane

[email protected]  

  • How Much Detail Must Be Given In Notice Under A Claims Made Policy?  Notice Of Circumstances, Even Without Detail, Sufficient
  • A Reasonably Inquiry into an Occurrence Requires a Little Bit of Effort; Late Notice Not Excused
  • Where Blanket Additional Insured Provision in Policy Required Contract to Be "Executed" Prior to Injury for Coverage to Be Effective, Unsigned Purchase Order Ineffective Where Work Had Not Been Performed
  • Mailing Presumes Receipt
  • Mailing Presumption Rebutted; Questions of Fact Abound With Respect to Direct Action
  • Late Notice of Underinsurance Claim Not Late 

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

[email protected] 

  • Sufficient Qualitative Assessment Regarding Torn Medial Meniscus Raises Triable Issue of Fact
  • Plaintiffs' Physicians Fail to Rebut Defendants' Experts' Findings That Conditions Are Degenerative
  • Appellate Court Finds Defendants Did Not Meet Their Prima Facie Burden
  • Motion to Set Aside Jury Verdict Denied and Judgment Affirmed
  • IME Reporting Full ROM and No Contemporaneous Report from Plaintiff Results in Summary Judgment for Defendants
  • Conclusions Regarding Causation Ruled Speculative Due to Failure to Address Findings That Injuries Are Degenerative in Nature
  • Unaffirmed Report Has No Probative Value
  • Plaintiffs' Contemporaneous and Recent Reports Defeat Summary Judgment
  • Again, Submission of Both Contemporaneous and Recent Reports Defeats Trial Court Reversed - Plaintiff Raises Triable Issue of Fact
  • Once Again, Failure to Address Findings Renders Conclusion Regarding

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

ARBITRATION

  • Domotor Discussed AGAIN and Conclusory IME on Causation Insufficient to Deny Lost Wages
  • Applicant Is Not Entitled to Lost Wages for Subsequent Accident in Which He Never Made a Claim for Lost Wages
  • You Need More Than Just a Difference of Opinion and Chiropractor Is Not Awarded Reimbursement Under CPT 95999

LITIGATION

  • Plaintiff's Failure to Rebut the IME Report Results in Dismissal
  • Plaintiff Raises Triable Issue of Fact as to Medical Necessity and All Motions Denied 

PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper

[email protected]

Of Property 

  • Court Upholds the "Earth Movement" Exclusion to Bar the Insured's Claim for Coverage
  • Insured's Claim Denied as a Result of Late Notice
  • Trial Court's Sua Sponte Decision to Dismiss Plaintiff's Complaint on the Basis of Accord & Satisfaction Was Improper Where Defendant Never Asserted Accord & Satisfaction as an Affirmative Defense

 And Potpourri

  • Agreement to Arbitrate Is Held Enforceable Where Plaintiff Cannot Establish Fraud
  • Question of Fact Precludes Owner and Tenant's Claim for Contractual/Common Law Indemnity from Snow Plow Contractor;  however, Contractor's Failure to Procure Insurance Was Found as a Matter of Law

FIJAL'S FEDERAL FOCUS
Katherine A. Fijal

[email protected]

  • What Happens When an Insured Refuses to Accept Insurer's Panel Counsel; and, Interpreting Policy Terms 

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

 

  • No Ambiguity Where Blanket AI Endorsement Also Contains Exclusions
  • Convenience of Forum Bounces Coverage Case to the Garden State
  • Be Careful to Sue the Right Insurer
  • A Major Change in Lead Paint Litigation? 

EARL'S PEARLS
Earl K. Cantwell

[email protected]

The Economic Loss Doctrine: A Tale of Two Cases 

Our next issue will be on Good Friday, being prepared on April Fool's Day.  Who knows what to expect?

See you on down the road.

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]


3/18/10           JPMorgan Chase & Co., v. The Travelers Indemnity Company
Appellate Division, First Department
How Much Detail Must Be Given In Notice Under A Claims Made Policy?  Notice Of Circumstances, Even Without Detail, Sufficient.


Within hours before Claims Made policy period was about to expire, JPMorgan gave written notice to Travelers, an excess carrier on the risk that Morgan might be facing Enron-related claims  No details were provided of wrongful acts but a summary of the work performed by JPMorgan was included.  The notice indicated, in part:

While we have not received notice of any claim or potential claim at this time, it is anticipated that we may be named in litigation expected to arise out of the financial difficulties of Enron as a result of the relationship described above.

Such litigation could include, among other things, allegations of breaches of fiduciary duty, aiding and abetting breaches of fiduciary duty, errors and omissions, securities fraud, negligence (including gross negligence), fraudulent conveyance, equitable subordination and misrepresentation. While JP Morgan Chase would vigorously contest the validity of any such claims, and has no actual knowledge of such acts, we believe that all of the foregoing constitutes Wrongful Acts that could give rise to a claim under the policy.

Despite lack of enumerated wrongful acts, the court found that circumstances of potential claim were sufficiently conveyed to satisfy requirements of notice under claims made policy.

3/16/10           Tower Ins. Co. New York v. Christopher Court Housing Co.
Appellate Division, First Department
A Reasonably Inquiry into an Occurrence Requires a Little Bit of Effort; Late Notice Not Excused

A tenant in the insured’s building was assaulted in the hallway outside her apartment. The incident report generated by the security guard on duty, which was submitted to defendant's employee, the building's property manager, reported that the tenant claimed she was "grabbed" by the assailant, police and emergency medical personnel were called to the scene, and there was "no evidence" of the assailant.
The police report, which the property manager did not obtain, reported that the tenant stated that an unknown assailant came out from the stairwell, grabbed her, pulled her hair, knocked off her glasses and that her arm was scratched; that the tenant was going through an "anxiety attack," was "very distraught," and was taken to the hospital by emergency medical personnel; and that the officers canvassed the premises but were unable to find the assailant.
It took three months for the insured to notify Tower, and only after a suit was commenced against it by the tenant.  Did the insured have a “good-faith belief in non-liability,” to justify the delay?
The question to be considered is whether and to what extent, the insured has inquired into the circumstances of the accident or occurrence. The inquiry here was not reasonable. The property manager knew that the building's security staff did not speak to the tenant and had learned of the incident from the responding police officers and never asked about the police report.  Had the report been secured, the details not reported by the security staff (distress and transport to hospital by ambulance) would have been revealed. Coupled with the known problem with a secured door, a better inquiry would have alerted the property manager to the possibility of a claim.
Editor’s Note:  Attaboy Max and Company.

3/9/10             Burlington Ins. Co. v. Utica First Ins. Co.
Appellate Division, Second Department
Where Blanket Additional Insured Provision in Policy Required Contract to Be “Executed” Prior to Injury for Coverage to Be Effective, Unsigned Purchase Order Ineffective Where Work Had Not Been Performed
Wah Cheong Chow (Chow) sued Manlyn Development Corp. in an underlying action. Manlyn was a construction manager of a renovation project and subcontracted some work to New York Interiors (Interiors). Interiors was to obtain insurance in specified minimum amounts, and name Manlyn as an additional insured. The purchase order was dated June 26, 2003, but was not signed and "authorized" by Manlyn until July 9, 2003, and not signed by Interiors until July 23, 2003.
Of course, Chow was injured on June 27 and sued Manlyn and Interiors. Utica First (Utica), Interior’s insurer, refused to defend and indemnify Manlyn on the ground that Manlyn did not qualify as an additional insured. The blanket additional insured endorsement provided that an "insured" included any person or organization the insured was required to named as an additional insured on the policy "under a written contract or written agreement." The endorsement further provided that the written contract or agreement must be currently in effect or become effective during the terms of this policy; and . . . executed prior to the bodily injury.  Utica argued that the purchase order was not signed at the time of the underlying plaintiff's alleged injury and, therefore, had not been "executed" as of that time.
The court found that since the contract was unsigned and not performed at the time of the accident, it was not “executed”.   AI status was not obtained.

3/2/10             Gartner  v. Unified Windows, Doors and Siding, Inc.
Appellate Division, Second Department
Mailing Presumes Receipt

There was a three year delay in responding to a summons and complaint.   The defendant contended that it never received the pleadings served by mail by the Secretary of State.  The address to which it was sent was correct.  It is presumed that a properly addressed mailing is received and a mere denial of receipt it insufficient to rebut that presumption.

3/2/10 Jimenez v. New York Central Mutual Fire Insurance Company
Appellate Division, Second Department
Mailing Presumption Rebutted; Questions of Fact Abound With Respect to Direct Action

Jimenez obtained a default judgment against Sanchez for over $32,000.  Under the New York “Direct Action Statute” [Insurance Law §3420(a)(2)], if an injured person takes judgment against an insured party, an action can be commenced by the injured person (now, judgment creditor), directly against the insured party’s liability carrier if (a) the judgment is sent to the carrier and the insured and (b) after 30 days, the judgment remains unsatisfied.

Here, the insurer denied every receiving a copy of the judgment and demonstrated to the court’s satisfaction that it did not so receive it.  There were also issues of fact about the timeliness of the NYCM disclaimer.
Editor’s Note:  There was another issue is this case worth highlighting.  Generally, when a carrier receives notice of an underlying lawsuit and chooses not to defend its insured, it is precluded from relitigating the underlying facts or challenging the reasonableness of the judgment.  Here, however, NYCM was never told of the commencement of the underlying lawsuit until after a judgment was entered against its insured.  Thereafter, it had no opportunity to contest the underlying facts and can do so now.

3/2/10             In the Matter of Tri-State Consumer Ins. Co. v. Furboter
Appellate Division, Second Department
Late Notice of Underinsurance Claim Not Late

The insured delayed 16 months before filing a claim for Supplementary Uninsured Motorists benefits (SUM or “underinsured motorist”).  The insurer moved to stay arbitration, claiming that the insured did not give notice “as soon as practicable” under the policy.

The court found that there was an acceptable excuse for the delay.  The uncontroverted affidavit and medical records demonstrated that the delay of some was attributable to the belief of his various treating physicians that his injuries were relatively minor and would resolve with treatment. When he learned that the conditions were worsening and permanent, notice was promptly given thereafter.
Editor’s Note:  Since we haven’t had the opportunity to provide this reminder recently, it is worth doing so now. While the insurer was unsuccessful in this case, it followed the correct procedure in challenging the demand for arbitration. In New York, if a uninsured motorist or underinsured motorist carrier believes that a claimant breached a policy condition, it must file an application in State Supreme Court (our trial level court) to permanently stay arbitration within 20 daysof the demand for arbitration.  A failure to do that, in most cases, will preclude the insurer from challenging the arbitrability of the claim.  There are exceptions to the rules, where the carrier contents that there is no policy in place that provides coverage for the claim in the first instance. 


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

3/18/10           Perez v. Vasquez
Appellate Division, First Department
Sufficient Qualitative Assessment Regarding Torn Medial Meniscus Raises Triable Issue of Fact

The plaintiff failed to identify an issue of scarring in his bill of particulars and admitted in his deposition that he was confined to home for only three weeks, and therefore the court refused to address any claim for scarring and dismissed the claim under the 90/180-day category.

However, the plaintiff raised a triable issue of fact under the significant or permanent consequential limitation of use categories with regard to the injury to his right knee.  He attended physical therapy and some three months following the accident his surgeon determined the knee was unstable and his findings were consistent with an MRI revealing a torn meniscus.  During the arthroscopic surgery, the Doctor determined that the tear was irreparable.  During a recent examination, he reported a 15 degree limitation in the plaintiff’s range-of-motion and stated that the surgery permanently altered the load distribution of the knee, lessening the plaintiff’s ability to sustain the load of daily activities.  The Court found this to be a sufficient qualitative assessment.

3/11/10           Santiago v. Bhuiyan
Appellate Division, First Department
Defendants Successfully Shift the Burden

The Appellate Court determined that not only had the appealing defendants met their prima facie burden thus shifting the burden to the plaintiffs to raise a triable issue of fact regarding their 90/180-day claims (which the plaintiffs failed to do), but that summary judgment was also warranted as to the remaining defendants as well.

3/9/10             Barry v. Future Cab Corp.
Appellate Division, Second Department
Plaintiffs’ Physicians Fail to Rebut Defendants’ Experts’ Findings That Conditions Are Degenerative

In an action involving a two-car collision, the defendants submitted the affirmed reports of their expert neurologist, orthopedist and radiologist in support of their motion for summary judgment.  The radiologist concluded that the conditions in Barry’ cervical and lumbar spine, as well as in both knees, were degenerative in nature and unrelated to the accident.  In opposition, the plaintiffs submitted reports, none of which rebutted the radiologist’s findings.  Therefore, plaintiffs’ orthopedist’s opinion that the injuries were causally related was conclusory and did not raise a triable issue of fact to defeat the defendants’ motion.

3/9/10             Burrowes v. New York City Tr. Auth.
Appellate Division, Second Department
Appellate Court Finds Defendants Did Not Meet Their Prima Facie Burden

As always occurs when the defendants fail to meet their prima facie burden, summary judgment is denied without consideration of the sufficiency of the plaintiff’s submissions.

3/9/10             Chery v. Souffrant
Appellate Division, Second Department
Motion to Set Aside Jury Verdict Denied and Judgment Affirmed

The plaintiff brought a claim under the 90/180-day category and the jury awarded her $50,000 for pain and suffering in an action arising from a two-car collision in which she was rear-ended.  The defendants moved to set aside the verdict as contrary to the weight of the evidence, or for judgment as a matter of law, or to set aside the award as excessive.  The Court, in affirming the judgment, reviewed the legal standards for setting aside a jury verdict: 

  1. To determine that the verdict is not supported by legally sufficient evidence, the court must find “no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial”;
  2. To determine that the verdict is contrary to the weight of the evidence, the court must find that “the evidence so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence. “  “Where the verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view”; and
  3. The amount of damages is a question for the jury and its determination will not be set aside unless it “deviates materially” from what would be reasonable.

 

3/9/10             George v. Suarez
Appellate Division, Second Department
IME Reporting Full ROM and No Contemporaneous Report from Plaintiff Results in Summary Judgment for Defendants

The defendants, Suarez, New York City Fire Department and Jacobs, appealed separately relying on affirmed IMEs from a neurologist and an orthopedist, based on objective range-of-motion tests, concluded that the plaintiff had full ROM in his cervical and lumbar spine.  The plaintiff’s submission in opposition did not include any ROM findings that were contemporaneous with the accident.  He also did not proffer any competent medical evidence to support his claim under the 90/180-day category, resulting the this dismissal of his complaint as to all the defendants.

3/9/10             Larson v. Delgado
Appellate Division, Second Department
Conclusions Regarding Causation Ruled Speculative Due to Failure to Address Findings That Injuries Are Degenerative in Nature

The trial court had dismissed based on the plaintiff’s failure to submit evidence of ROM restrictions that was contemporaneous with the accident.  On appeal, the order was affirmed, but based on ground that the plaintiff’s examining physicians did not address the findings of the defendant’s radiologist who concluded that the injuries were degenerative and not related to the accident.  In addition, the MRI reports revealed a tear of the medial meniscus and several bulging discs but without setting forth the extent of the alleged limitations or their duration, and the plaintiff’s own affidavit did not meet the standard. 

3/9/10             Niazov v. Corlean Cab Corp.
Appellate Division, Second Department
Unaffirmed Report Has No Probative Value

Here the defendants submitted a report from an orthopedic surgeon who examined the plaintiff but the surgeon failed to affirm the contents of his report as required, resulting in the court’s ruling that it had no probative value and could not support the defendants’ motion.

3/9/10             Parker v. Singh
Appellate Division, Second Department
Plaintiffs’ Contemporaneous and Recent Reports Defeat Summary Judgment

The plaintiff, Parker, submitted the affirmation and report of her treating physician based on a contemporaneous examination in which he noted significant causally related limitations in the cervical and lumbar spine, as well as the affirmed report of another physician, based on recent examination, which found the same limitations and stated that they were permanent and causally related to the accident. 

The co-plaintiff, Greaves, similarly submitted an affirmation and report from the treating physician, based a contemporaneous examination, and which found significant limitations in his right knee.  He also submitted an affirmed report, based on recent examination, which noted limitations even after arthroscopic surgery, and stated that the limitations were permanent and causally related to the accident.  These submissions were sufficient to raise a triable issue of fact and summary judgment should not have been granted to the defendants.

3/9/10             Yeong Hee Kwak v. Villamar
Appellate Division, Second Department
Again, Submission of Both Contemporaneous and Recent Reports Defeats Summary Judgment

Here the plaintiff relied on the affidavit of her chiropractor who, based on both recent and contemporaneous examinations, opined that her cervical and lumbar injuries were permanent and causally related to the accident, warranting the reversal of the trial court’s order.

3/2/10             Bachan v. Paratransit
Appellate Division, Second Department
Trial Court Reversed – Plaintiff Raises Triable Issue of Fact

On appeal, the trial court is reversed.  The plaintiff’s submissions of an affidavit of her treating chiropractor who examined her contemporaneously with the accident and reported significant range-of-motion limitations in her lumbar spine, together with the affirmed report of a neurologist, who noted similar findings on recent examination and opined that the limitations were caused by the accident, were sufficient to raise a triable issue of fact under the permanent consequential and/or significant limitation of use categories and defeat summary judgment. 

3/2/10             Rodrigez v. Grant
Appellate Division, Second Department
Once Again, Failure to Address Findings Renders Conclusion Regarding Causation Speculative

Both of the plaintiff’s treating physicians failed to address the findings of the defendant’s radiologist who determined that the plaintiff’s left knee injuries were degenerative and unrelated to the accident.  As such, their opinions that the injury was related to the accident were speculative.  In addition, the MRI, which revealed a tear in the anterior cruciate ligament and medial meniscus, was not, in of itself, evidence of a serious injury as the plaintiff did not submit evidence of the extent of the resulting limitation or its duration, as required.

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

ARBITRATION

3/16/10           Applicant v. New York Cent. Mut. Fire Ins. Co.
Arbitrator Thomas J. McCorry, Erie County
Domotor Discussed AGAIN and Conclusory IME on Causation Insufficient to Deny Lost Wages

The Applicant, eligible injured person, sought lost wages from the insurer arising out of a January 9, 2005, motor vehicle accident.  The insurer denied lost wages based upon a blanket denial dated August 9, 2005, upon the independent medical examination of Dr. Patrick Hughes.  The denial’s effective date was August 13, 2005.
The Applicant sought lost wages from the effective date of the denial until March 1, 2006.  It was noted that the issue in the arbitration appeared to be whether the Applicant had a continuing obligation to submit a claim for lost wages after the denial’s effective date.
The assigned arbitrator determined, that based upon these facts, the Applicant did not have such an obligation.  The arbitrator relied upon not only Domotor v. State Farm but also a 2009 decision from Judge Sweeney captioned, NY Med. Health PC v. New York City Transit Auth.
Thereafter, the issue of whether the blanket denial based upon Dr. Hughes examination was proper.  The assigned arbitrator determined that Dr. Hughes opinion was conclusory on the issue of causal relationship between the accident and the injuries.  Dr. Hughes did opine that the Applicant could return to work without restriction.
The Applicant presented evidence that Dr. Pilcher performed lumbar decompression surgery on August 22, 2005, and that the Applicant could return to work on February 6, 2006.
The arbitrator found Applicant’s evidence more persuasive and awarded lost wages until February 6, 2006.

3/12/10           Applicant v. MetLife Auto & Home Ins. Co.
Arbitrator Veronica K. O’Connor,
Albany County
Applicant Is Not Entitled to Lost Wages for Subsequent Accident in Which He Never Made a Claim for Lost Wages

The Applicant was involved an August 18, 2005 (2005 accident) and sought lost wages.  The Applicant was also involved in a previous accident on August 14, 2003 (2003 accident) and also sought lost wages.  In addition, the Applicant was involved in a previous 2001 accident and submitted a claim with Progressive.

Interestingly, the Applicant claimed after the 2001 accident he was unable to work at full capacity as a self employed insurance broker/agent.

Both Progressive and MetLife paid the Applicant lost wages as a result of the 2001 accident the 2003 accident.

After the 2005 accident, the Applicant submitted his application for no-fault benefits to MetLife indicating that he did not lose any time from work as a result of the 2005 accident because he was already disabled.  Due to this representation, MetLife did not pay any lost wages.

A review of MetLife’s wage payments indicate that it paid the Applicant lost wages from August 19, 2005 through June 15, 2006 under the 2003 accident.

All lost wages were denied under the 2003 accident based upon an IME conducted by Dr. John Ring.

Applicant contends that he is entitled to lost wages under the 2005 accident and therefore his lost wages are extended to August 18, 2008.  The Applicant further contends that it discussed this issue with the insurer on numerous occasions. 

The insurer submitted a notarized statement from a no-fault supervisor addressing the communications issue.  The supervisor stated that a comprehensive review of both claims files did not reveal any documentation of phone calls regarding Applicant’s alleged complaint that wages were being paid under the wrong claim and should have been paid under the 2005 accident.  There was further disclosure of whether all calls would be documented but the supervisor stated that a call of the nature disputing proper payment of lost wages would be documented.

The Applicant retorted that he was the unfortunate victim of multiple motor vehicle accidents wherein his lost wage claim period overlapped accidents.  He further argued that he advised the insurer after the 2003 accident that his lost wages were being paid by his 2001 accident.  The Applicant also sent correspondence to the insurer after the 2003 accident advising that the time period for wages under the 2001 accident were due to expire and he wanted to maintain continuity of payment thereby asserting a claim for wages as a result of the 2003 accident.  The Applicant claims that he did the same thing after the 2005 accident.

The assigned arbitrator determined that the Applicant did not adhere to the same procedure previously described after the 2005 accident.  Initially, the Applicant did not establish documentary proof that he wanted to maintain continuity of payment once the 2003 accident lost wage time period expired by making a lost wage claim as a result of the 2005 accident.  Further, while the insurer recognized that it had issues with regard to documenting communications, which have since been improved, a review of the claims notes and activity logs for both claims indicate that there was no contact from Applicant to discuss a lost wage claim as a result of the 2005 accident.  In addition, the insurer’s denials regarding lost wages all referred to the 2003 accident.

3/10/10           Anthony Bianchi DC PC v. New York Cent. Mut. Fire Ins. Co.
Arbitrator Kent L. Benziger, Erie County
You Need More Than Just a Difference of Opinion and Chiropractor Is Not Awarded Reimbursement Under
CPT 95999
The Applicant’s assignor was involved in an October 18, 2005, accident and treated with, among other specialities, Anthony Bianchi, D.C. for chiropractic care as a result of neck and low back injuries.

The assignor was independently examined on three different occasions by Michael Weig, DC, who opined by April 4, 2008, that chiropractic care was only warranted 1 time per week for the next 12 weeks as it was keeping the assignor in the work force and decreasing the frequency of prescription pain medication dependency.

On December 4, 2009, Mr. Bianchi requested his patient be examined by Anthony Garmone, DC.  It is unclear if Mr. Bianchi’s intent was to obtain a second independent examination.  Mr. Garmone opined that it was difficult to determine the number of treatments the assignor required but it could range from 20 to 50 per year.

The assigned arbitrator determined that the issue was the number of chiropractic treatments needed and Mr. Weig failed to establish that the number of treatments Mr. Garmone presented were excessive pursuant to generally accepted chiropractic standards.

Next, the assigned arbitrator turned to a denial of a bill for 34 procedures submitted under CPT 95999 and upheld the insurer’s denial.  The documents submitted indicate that the procedures conducted were a Nervoscope (which pertains to a heat detection method) and other documents referred to it as surface EMG testing.

CPT 95999 is defined as an “unlisted neurological or neuromuscular diagnostic procedure.”  The relative value for this CPT code is BR or by report.  General Ground Rule 3 applied to this BR code and the assigned arbitrator determined that the Applicant failed to submit sufficient evidence as described in the General Ground Rule to substantiate entitled to reimbursement for the procedure.  Furthermore, to the extent that procedure was a surface EMG it has already been determined that this is not compensable under the workers’ compensation fee schedule and the no-fault system.

LITIGATION

3/8/10             Eastern Star Acupuncture, PC a/a/o Alejandro Soriano v. Mercury Ins. Co.
Appellate Term, Second Department
Plaintiff’s Failure to Rebut the IME Report Results in Dismissal

The insurer’s summary judgment motion should have been granted as the plaintiff failed to rebut and meaningfully refer to the insurer’s IME chiropractor/acupuncturist’s conclusions within the IME report.

3/8/10             Infinity Health Products, Ltd. a/a/o Alfonzo Ruiz v. Mercury Ins. Co.
Appellate Term, Second Department
Plaintiff Raises Triable Issue of Fact as to Medical Necessity and All Motions Denied

Both parties’ summary judgment motions were properly denied.  The Court reasoned that plaintiff established its prima facie case entitlement to summary judgment.  Likewise, the defendant established its prima face case entitlement to summary judgment through submission of requisite affidavits establishing timely mailing of the denial forms and the IME report containing a factual and medical rationale for the conclusion of lack of medical necessity.  The Court further indicated that the burden shifted to plaintiff to raise a triable issue of fact as to medical necessity.  Here, the plaintiff created a question of fact precluding summary judgment through its doctor’s affirmation.

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

Of Property

3/09/10           Lordae Realty Corp. v United States Fire Ins. Co.
Appellate Division, Second Department
Court Upholds the “Earth Movement” Exclusion to Bar the Insured’s Claim for Coverage
Unfortunately, the Second Department did not provide us with many facts in this case.  However, the Court noted that the “earth movement” exclusion unambiguously applied to the facts (although unreferenced) of this case.  In so holding, the Court also noted that when interpreting the applicability of exclusions, the burden of proof rests with the carrier.

3/02/10           Rangoli, Inc. v. Tower Insurance Company
Appellate Division, Second Department
Insured’s Claim Denied as a Result of Late Notice
In this case, the insured sought recovery under its property policy for damages it allegedly sustained.  Unfortunately for the insured, the Second Department ruled that the insured had failed to provide timely notice of its claim under the policy thereby resulting in the loss of coverage  (unfortunately for us, the Second Department did not elaborate on the length of the insured’s apparent delay).

In addition, the Court also noted that even if notice of the claim was prompt, the insured failed to sustain its burden that the claimed loss actually occurred during the applicable policy period.

3/02/10           Progressive Northeastern Ins. Co. v. North State Autobahn, Inc.
Appellate Division, Second Department
Trial Court’s Sua Sponte Decision to Dismiss Plaintiff’s Complaint on the Basis of Accord & Satisfaction Was Improper Where Defendant Never Asserted Accord & Satisfaction as an Affirmative Defense
In this matter, Progressive commenced an action arguing that the defendant had charged for repairs it had not performed, charged for unnecessary repairs, charged for parts that were not installed, and also documented excessive labor charges.  The defendant North State moved to dismiss Progressive’s Complaint, and the Trial Court, in fact, dismissed the Complaint.   However, the Trial Court’s decision, sua sponte, was based on the Judge’s opinion that Progressive’s payment of the charges without a formal reservation of rights, or any other form of protest, resulted in Progressive’s current claims being barred under the doctrine of accord and satisfaction.

Upon appeal, the Second Department reversed the Trial Court’s ruling.  In overturning the Trial Court’s decision, the Second Department noted that the accord and satisfaction doctrine must be pled as an affirmative defense.  Further, the Court noted that the doctrine of accord and satisfaction is inapplicable where, as here, there is a genuine dispute over whether Progressive had knowledge of the facts of the case at hand.  In turn, the matter was remanded to the underlying court for trial. 

And Potpourri

3/11/10           Haggerty v. Brady
Appellate Division, Third Department
Agreement to Arbitrate Is Held Enforceable Where Plaintiff Cannot Establish Fraud

At some point prior to trial, plaintiff and defendant both agreed that the dispute between them could be resolved at binding arbitration.  To that end, counsel to both parties entered into an Arbitration Agreement that provided a high/low of $2,500/$50,000. 

When the plaintiff’s counsel realized that the defendant’s policy actually provided $100,000 in coverage, counsel sought to void the agreement.  In support of plaintiff’s position, counsel argued that plaintiff was tricked into agreeing to a $50,000 high due to certain oral representations that were allegedly made by the defendant’s carrier. 

However, defendant’s counsel established that the actual amount of coverage available to defendant ($100,000) was produced in routine discovery exchange.  Thus, the Third Department ruled that where, as here, written documentation established the policy limit was $100,000, an alleged oral misstatement does not result in the otherwise duly executed Arbitration Agreement being voided.

3/02/10           Powell v CVS Jerusalem N. Bellmore, LLC
Appellate Division, Second Department
Question of Fact Precludes Owner and Tenant’s Claim for Contractual/Common Law Indemnity from Snow Plow Contractor; However, Contractor’s Failure to Procure Insurance Was Found as a Matter of Law
Plaintiff, Powell, fell and allegedly sustained injury while in the process of leaving defendant’s, CVS, premise.  Thereafter CVS, and the owner of the premises, Bellmore, commenced third-party actions against the snow plow contractor on theories of contractual indemnification, common law indemnification/contribution, and breach of the contract’s insurance procurement clause.  CVS and Bellmore’s claims were premised upon a theory that the snow plow contractor damaged the area of the walk where the plaintiff allegedly fell.

Upon review, the Second Department found questions of fact regarding the allegedly defective walkway.  However, holding that the snow plow contractor did not provide viable opposition, the Court ruled that the contractor had breached its insurance procurement obligations. 

(Peiper’s Note:  Remember, however, generally the loss for failure to procure insurance is limited to “out of pocket expenses owed by the insured”)   

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

3/15/10           New York Marine and General Ins. Co. v. LaFarge                  
United States Court of Appeals for the Second Circuit. 
What Happens When an Insured Refuses to Accept Insurer’s Panel Counsel; and, Interpreting Policy Terms
This is a coverage action arising out of Hurricane Katrina which made landfall on August 29, 2005 in New Orleans, Louisiana.  More specifically, Barge ING-4727 [“the Barge”] which may not have been merely a casualty of Hurricane Katrina but in fact may have caused the flooding of the Lower Ninth Ward.  In fact, an article in the Wall Street Journal implied that Lafarge may have failed to properly moor the Barge during the storm and that Lafarge was therefore responsible for the devastation to the Lower Ninth Ward. The article identified Ingram Barge Company [“Ingram”] as the Barge’s owner, and Lafarge as the operator responsible for the terminal to which the Barge was moored when the hurricane struck.

Lafarge, one of the largest suppliers of construction materials in the United States and Canada, was well aware that the exposure to potential liability created by the Barge threatened the existence of the company.  Consequently, upon receiving initial inquiry from the Wall Street Journal on September 8, 2005, and becoming aware of the potential connection between the Barge and the breached levee, Lafarge retained Goodwin Procter, LLP [“Goodwin Procter”] which Lafarge described as “a top law firm with a national reputation that had represented Lafarge in class action/mass tort and other complex litigation in the past.  Lafarge also retained Holland & Knight, LLP [“H & K”], which according to Lafarge had a “prominent maritime investigation and litigation practice.”  The following day, September 9, 2005, Lafarge, on the advice of Goodwin Proctor, hired local counsel in New Orleans, Chaffe McCall, LLP [“Chaffe”].  All three firms immediately began their work.

On September 9, 2005, Lafarge notified its primary insurer New York Marine and General Insurance Company [“NYMAGIC”] about the Barge and the possibility of claims against Lafarge. Lafarge advised NYMAGIC that it had retained H & K and NYMAGIC advised Lafarge that it would like the law firm of Sutterfield and Webb [“Sutterfield”] to get involved should there be any significant claim against Lafarge.

It was not until September 20, 2005, that Lafarge advised NYMAGIC that it retained Goodwin Procter and Chaffe, in addition to H & K.  Lafarge never obtained NYMAGIC’s consent to appoint any of these law firms.

In a response dated September 22, 2005, NYMAGIC advised Lafarge that it would not commit to paying for public relations or lobbying efforts and that for defense, they wished to assign one of the firms on its Louisiana Panel Counsel list.  NYMAGIC provided Lafarge with the names of six New Orleans law firms, including Sutterfield, which specialized in maritime litigation.

Lafarge did not respond to NYMAGIC’s offered list of counsel, and it became clear that Lafarge would not consent to any of the six law firms proposed by NYMAGIC and that they intended to continue to employ Goodwin Procter, Chaffe and H & K.

In an e-mail dated September 28, 2004, NYMAGIC advised Lafarge that it could agree to he costs of the experts and surveyors but would not agree to pay for the three sets of attorneys on the case, none of which had been approved by NYMAGIC.  In a separate e-mail on the same date, NYMAGIC also informed Lafarge that it had decided to appoint Sutterfield as defense counsel in Louisiana.  At that point Lafarge instructed Goodwin Procter to cooperate with Sutterfield and to bring the firm up to speed. 

The first action against Lafarge was filed in the United States District Court for the Eastern District of Louisiana on November 3, 2005.  The action enlarged and resulted in litigation of substantial magnitude and complexity, seeking damages as high as $100 billion.  The merits of the liability claims will be adjudicated in the Louisiana District Court; however, the Lafarge insurers commenced three separate actions in the United States District Court for the Southern District of New York.  In those actions, which are the subject of this appeal, the insurers sought declaratory judgments with respect to issues of coverage under the primary and excess policies.

Pursuant to the NYMAGIC primary policy, NYMAGIC paid the approved legal fees and expenses of Sutterfield and Lafarge’s expert fees and costs. These expenses exhausted the primary policy limits of $5,000,000. 

Under the excess policy issued by the three excess insurers, NYMAGIC, American Home Assurance Company [“AHAC”], and Northern Assurance Company of America [“NACA”], NYMAGIC paid and continues to pay 40% of the legal fees and expenses billed by Sutterfield and the expenses billed by Lafarge’s experts in connection with the barge litigation. The remaining 60% of the fees and expenses are said to be covered under the excess policy by AHAC and NACA, but these two insurers have refused to pay. The excess policy issued jointly by the three excess insurers covers Lafarge for liability and expenses up to $45 million and under certain circumstances $50 million.  Neither NYMAGIC AHAC and NACA has approved or paid any of the legal fees and expenses of Goodwin Procter, H & K, and Chaffe.  The total legal fees of these three firms amount to over $10 million as of November 11, 2008.

            In addition to being covered under the above policies, Lafarge also is a member of the American Club, a non-profit mutual insurance association, which provides a “protection and indemnity” policy for its members. The American Club policy covers ship owners and charterers against third-party liabilities arising from the ownership or operation of insured vessels.  In accordance with this general purpose, a list of specific vessels to be insured is identified by Lafarge and incorporated into its Certificate of Entry, a document proving Lafarge’s membership with the American Club.  Since Ingram owned the Barge, the Barge was not listed as an insured vessel under Lafarge’s Certificate of Entry – Lafarge’s membership in the American Club included the following special term and condition:  “If Lafarge . . . acquires an insurable interest in any vessel . . . through purchase, charter, lease or otherwise, the American Club policy automatically cover such . . . vessel effective from the date and time [Lafarge] acquires an insurable interest in such . . . vessel.”

Three separate actions were filed in the District Court:  First, NYMAGIC sought judgments against Lafarge declaring that (1) NYMAGIC’s primary policy did not cover the legal fees earned by Lafarge’s counsel – Goodwin Procter, H & K and Chaffee; (2) NYMAGIC asserts that it retained the right under its primary policy to direct the defense of any action against Lafarge; (3) NYMAGIC is obligated to pay only reasonable fees and expenses relating directly to the defense of the claims against Lafarge.

Second, the American Club sought a judgment against Lafarge declaring that the American Club policy did not cover the barge and that American Club was not obligated to cover any of Lafarge’s expenses or liabilities arising from the barge litigation. 

Third, AHAC and NACA sought judgments against Lafarge and the American Club declaring that:  (1) the American Club policy covered the Barge; (2) AHAC and NACA, as excess insurers, were not obligated to pay until NYMAGIC’s primary policy and the American Club policy were first exhausted; and, (3) because NYMAGIC’s primary policy did not cover Lafarge’s  legal fees earned by Goodwin Procter, H & K, and Chaffee, AHAC and NACA also were not liable to reimburse Lafarge for payments to those law firms.  Later, NYMAGIC, in its capacity as an excess insurer, was granted leave to intervene as a party plaintiff so that it could assert claims mirroring those in AHAC and NACA’s action for declaratory judgment against the American Club and Lafarge.

            On October 27, 2008, the District Court granted the American Club’s motion for summary judgment against Lafarge.  On February 19, 2009, the District Court granted American Club’s motion for summary judgment and dismissed AHAC, NACA and NYMAGIC’s claims against the American Club; granted Lafarge’s motion for summary judgment against the excess insurers and declared that they were obligated to cover Lafarge; and, (3) granted, in part, Lafarge’s motion for summary judgment against both the primary and excess insurers and declared that they were obligated to cover the legal fees earned by Goodwin Procter and H & K but not Chaffee.  The court also denied all claims for attorneys’ fees in connection with the motions and cross motions for summary judgment.

On appeal, Lafarge, NYMAGIC, AHAC and NACA argue that the American Club policy covers the Barge. Lafarge also challenges the court’s determination that the primary and excess policies did not cover the legal fees earned by Chaffee; and the court’s refusal to award attorneys fees in connection with the motions and cross-motions for summary judgment.  NYMAGIC, AHAC, and NACA further challenge the District Court’s decisions on summary judgment, contending that the court erred in concluding that the excess policy was triggered and that both the primary and excess policies covered the legal fees earned by Goodwin Procter and H & K. 

There was no dispute between the parties that New York law applies in the Court’s examination of the various insurance policies. 

The first issue addressed by the court was whether coverage is available to Lafarge under the American Club policy.  Lafarge argued that the Barge is automatically covered pursuant to the following provision of the American Club policy:

If Lafarge . . . acquires an insurable interest in any vessel in addition to or in substitution for those set forth herein, through purchase, charter, lease or otherwise, such insurance as is afforded hereunder to any similar vessel effective from the date and time [Lafarge] acquires an insurable interest in such additional vessel.  With respect to a chartered, leased or similarly acquired vessel, the insurance hereunder automatically includes the owner as an additional Assured with waiver of subrogation against the owner, if required effective from the date and time such vessel is insured hereunder.  (emphasis added).

Lafarge argues that it acquired an insurable interest in the Barge by means “otherwise” via the transportation agreement with Ingram, which purportedly conferred upon Lafarge the status of bailee of Ingram’s barge.  Lafarge asserts that the term “otherwise” must be given its dictionary meaning, i.e., “in any other manner”.

The Second Circuit disagreed with Lafarge’s argument stating that Lafarge’s approach to interpreting the term “otherwise” would violate the fundamental rule of contract interpretation that “a court must strive to give meaning to every sentence, clause and word. The court chose to interpret the word “otherwise” narrowly noting that it was unpersuaded that “otherwise” cannot reasonably be construed to mean a narrow category of commercial conducts akin to a purchase, charter or lease. The Count went on to state that although the record does not clearly inform us of the precise limits of the term “otherwise”, it is absolutely clear what “otherwise” is not:  “otherwise” does not include the kind of relationship associated with a shipowner’s bailment to a terminal operation – the relationship Ingram had with Lafarge.

The court went on to point out that Lafarge’s conduct was a good indication that the intent of the American Club policy was not to cover third-party barges such as the Barge at issue here.  For example, among other things, the court noted that Lafarge never declared or tended any premiums for the over 3,000 third-party owned barges that had passed through the terminals for nearly seven years since Lafarge had become a member of the American Club, or is there any evidence that the American Club ever demanded premiums for these third-party barges.

The court further notes that although the Transportation Agreement between Lafarge and Ingram contemplates some control by Lafarge over Ingram’s barges for purposes of unloading cargo or shifting barges within its terminal, the agreement states that “nothing contained in this contract shall be construed as a contract by [Lafarge] for the chartering, hiring or leasing of any barge, and Lafarge shall exercise no control over the operation of any barge”.  Language which articulates the opposite condition of the Chartered Barges Clause, which requires that a qualifying vessel be acquired “through purchase, charter, lease or otherwise” to establish automatic coverage.”  The Court concluded that whatever insurable interest Lafarge acquired in the Barge through its control of the vessel under these extenuating circumstances, it was not – nor was it akin to – the acquisition of the vessel through purchase, charter or lease.

The Court held, although the Chartered Barges Clause may be ambiguous, summary judgment in favor of the American Club is warranted given (1) the strength of the  extrinsic evidence that the Chartered Barges Clause was never intended to cover third-party barges; (2) the lack of any evidence as to a contrary intent that raises a genuine issues of material fact; and (3) the Transportation Agreement’s express articulation of the relationship between Ingram’s barges and Lafarge as outside the conditions of the Chartered Barges clause. 

On the issue of attorneys’ fees, the Second Circuit agreed with the District Court that it was reasonable for Lafarge to retain at once a large firm such as Goodwin Procter with complex case and mass tort experience, to take immediate control of Lafarge’s defense against the anticipated litigation flood which did in fact materialize.  It was also reasonable for Lafarge to retain an admiralty firm such as H & K, with experience in the rapid response investigation and evaluation of major marine casualties. 

In rendering its decision the Court focused on three clauses in the NYMAGIC policy the “Naming Clause”, “Protection Clause” and the “Expense Clause”.  The “Naming Clause” states:

NYMAGIC, in consideration, in consultation with [Lafarge], shall have the option of naming any mutually agreeable attorneys who shall represent Lafarge in the prosecution or defense of any litigation or negotiations between Lafarge and third parties concerning any claim based on a liability or any alleged liability covered by the primary policy, and shall have the direction of such litigation’s [sic] or negotiations.

The “Protection Clause” states:

In respect of any occurrence likely to give rise to a claim under this policy, [Lafarge] is obligated to and shall take such steps to protect its and/or NYMAGIC’s interests as would reasonably be taken in the absence of similar insurance.

The “Expense Clause” requires:

NYMAGIC to pay survey and related expenses reasonably incurred by Lafarge and the legal costs and expense of defending and/or investigating and/or conducting proceedings to limit liability on any suit or claim against Lafarge based on a liability or an alleged liability coming with in the scope of the primary policy. . . but NYMAGIC shall not be liable for the cost or expense of defending any suit or claim unless said cost or expense shall have been incurred with the written consent on NYMAGIC.  NYMAGIC, however, reserves the right to conduct the defense of any actions or suits at its own expense.

The Court concluded that the fees earned by Goodwin Procter, H & K, and Chaffe, which fees are of the type specifically contemplated under the Expense Clause, are covered under the Protection Clause in light of the circumstances in this case.  However, the Court also concluded that the Naming Clause would be rendered a nullity by the Protection Clause if Lafarge’s duty to minimize liability permitted it to hire expensive attorneys and establish NYMAGIC’s obligation to pay for those attorneys until the end of litigation.

The Court determined that once NYMAGIC clearly expressed its intention to fulfill its obligations and offered Lafarge a choice of six qualified law firms, it was incumbent upon Lafarge to act in good faith to consider agreeing to retain a firm from NYMAGIC’s list.

The Court held that to give full effect to the provisions in the primary policy, Goodwin Procter’s and Chaffe’s legal fees are covered under the Protection Clause for amounts incurred by Lafarge prior to, but not including, September 28, 2005, when it became clear that Lafarge was not acting in good faith in considering the list of six qualifying law firms proposed on September 22 by NYMAGIC, and when NUMAGIC advised Lafarge by e-mail that it would not “agree to pay for the three sets of attorneys on the case, not approved by NYMAGIC.” 

With respect to H & K because it was retained on a temporary basis for an investigative mission rather than as defense counsel, and because NYMAGIC did not commission any investigation of its own into the incident and received full disclosure of the fruits of Lafarge’s, the fees earned by H & K are covered in toto under the Protection Clause.

Because the court granted summary judgment in favor or American Club, and because there is no dispute that NYMAGIC’s primary policy has been exhausted, the excess policy applies to cover expenses in excess of the primary policy’s limits.  The first question the court addressed was coverage for Lafarge’s unauthorized legal expenses.

The District Court determined that the excess policy addressed in this litigation is a “bumbershoot” policy, i.e., a type of insurance intended to fill any coverage gap which might occur when an assured’s underlying or primary insurance limits are exceeded, or, when underlying insurance covering the risk does not exist.

In reviewing the excess policy the Court noted that although there is a clause that conditions the excess policy on the proper maintenance of specified primary insurance policies, that clause does not speak to the circumstances where the underlying primary policies are properly maintained but nonetheless do not cover an expense that is otherwise covered by, for example, the Loss Clause.  The Court agreed with the District Court that the excess policy is a “bumbershoot”. 

The Court held that because the primary policy covers a portion of the legal fees earned by Lafarge’s unauthorized law firm, any amount exceeding the primary policy’s limit with respect to those expenses is covered by the excess policy.  But because the excess policy is also a “bumbershoot”, coverage of the portions of the legal expenses not covered under the primary policy is still possible. 

Because the court concluded that the excess policy is a “bumbershoot” and may cover legal expenses that are not covered by the primary policy, the only limitation to the excess policy’s coverage of legal expenses is the general rule that coverage be for reasonable legal expenses – a point of law which was not in dispute by the parties. The court agreed with the excess insurers that Lafarge’s retention of Goodwin Procter and Chaffe in open defiance of the plain terms of the Naming Clause of the primary policy was unreasonable.

Accordingly, the Court concluded that the excess policy does not cover the fees and expenses claimed by Goodwin Procter and Chaffe on or after September 28, 2005.

Finally, the court agreed with the District Court in denying legal fees in connection with the motions before the District Court. The Court held that because the insurers do not attempt to avoid their duty to defend Lafarge, the District court’s conclusions were not in error.

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

3/8/10             Sigma Contr. Corp. v. Everest Natl. Ins. Co.
Supreme Court, Kings County
No Ambiguity Where Blanket AI Endorsement Also Contains Exclusions
In June 2008, Wilmer Guzman, a subcontractor’s employee, fell and sustained injury on a construction site.  Sigma, the general contractor, commenced this action seeking a declaration that it was entitled to defense and indemnify from both its insurer as a named insured and its subcontractor’s insurer as an AI pursuant to a blanket additional insured provision. 

Utica First, the subcontractor’s insurer, denied coverage pointing to an endorsement in its policy which excluded coverage for injuries to employees, contractors and employees of contractors.  It also applied to any obligation to indemnify or contribution because of injury to an employee.  Thereafter, Sigma’s insurer, Everest, denied coverage based on a policy provision which excluded coverage for Sigma if it fails to have “in force commercial general liability insurance including contractual liability coverage for the benefit of the contractor and [Sigma] for indemnification and/or contribution claims to the fullest extent permissible by applicable law in the event of a loss.”

In response, Sigma argued that because the blanket endorsement contained its own exclusions applicable to additional insureds, separate from the main exclusions, there was ambiguity as to whether the employee exclusion, which Utica First disclaimed upon, applied to just insureds or to both additional insureds and insureds (notably, the blanket endorsement’s exclusions also contained an employee exclusion).  The court dismissed this argument holding that an exclusion for bodily injury to employees applied to both insureds and additional insureds. 

3/9/10             Elegante Leasing Systems, Inc. v. Laura Prop. and Farm Family
Supreme Court,
Nassau County
Convenience of Forum Bounces Coverage Case to the
Garden State
This case arose as a result of an alleged theft of a 2007 Bentley automobile, valued at approximately $200,000, from a municipal parking lot in East Newark, New Jersey.  The vehicle had been leased by a New Jersey corporation, Laura Properties, LLC, whose principal is Fred Marchitto, a New Jersey resident.  Fred Marchitto personally guaranteed the lease payments.  The lessor was Elegante Leasing Systems, Inc., which is located in New York.  The lease contains a New York forum selection clause and a New York choice of law clause.

The lease expressly required Laura Properties, LLC to obtain insurance coverage for the vehicle through an insurance company licensed under the laws of the principal place of operation and garaging of the vehicle (which was New Jersey).  The vehicle was insured by Farm Family Insurance Company, which is licensed to issue policies in New Jersey, even though its principal place of business is New York.  Elegante Leasing Systems, Inc. was listed as a “Certificate Holder/Additional Insured” on the insurance policy. 

According to Mr. Marchitto, the Bentley was stolen from the parking lot on September 1, 2008.  Laura Properties made a claim to Farm Family for the value of the vehicle.  After the alleged theft, Laura Properties ceased making lease payments to Elegante Leasing.

After an extensive SIU investigation, Farm Family denied the claim to Laura Properties based upon fraud.  Additionally, Farm Family denied the claim submitted by Elegante Leasing based upon a reading of the policy that the policy is void in the event of fraud by any insured. 

 With respect to fraud, it had been discovered that the night before the alleged theft, Mr. Marchitto visited the East Newark Police Department, and inquired whether the surveillance cameras surrounding the subject parking lot were in working order.  A member of the East Newark Police Department advised Mr. Marchitto at that time that those cameras were not in working order.  Additionally, it had been discovered that Mr. Marchitto and his wife had, during the past ten years, submitted other claims to insurance companies for the alleged thefts of three other high-end, luxury automobiles.  Moreover, none of the neighbors who were interviewed had any knowledge of seeing a Bentley parked in the subject parking lot at any time, despite Mr. Marchitto’s contention that he rented a space and parked the vehicle in that lot for some time.  Furthermore, Mr. Marchitto’s EUO testimony regarding his and his wife’s whereabouts and actions at the time of the alleged theft were inconsistent with his cell phone records.  Additionally, Mr. Marchitto waited until approximately three days after the alleged theft of the Bentley to report to the East Newark Police Department that the keys to his house and Bentley had allegedly been stolen approximately one month before the Bentley’s disappearance.

Elegante Leasing sued Laura Properties and Fred Marchitto for breach of the lease.  Elegante Leasing also sued Farm Family for breach of the insurance contract.  The amount sued for was the value of the Bentley.  The lawsuit was instituted in the Supreme Court of New York, Nassau County, which is the residence of plaintiff, Elegante Leasing.

Laura Properties and Fred Marchitto both failed to answer or appear in the lawsuit.  Therefore, Elegante Leasing obtained a default judgment against them.

On behalf of Farm Family, we then moved to dismiss the remaining action by Elegante Leasing against Farm Family on grounds of forum non conveniens.  We argued that, now that default has been granted against Laura Properties and Fred Marchitto, the automobile lease no longer is at issue.  Therefore, the New York forum selection clause in the automobile lease no longer applies and the remaining case may be litigated in New Jersey.  The only contract remaining at issue was the insurance policy, which was issued in New Jersey to a New Jersey insured.  We also argued that the only remaining issue is whether the vehicle was stolen or whether the insured committed fraud.  Our position was that all of the relevant witnesses and evidence relating to the alleged theft and fraud are located in New Jersey, that the parties would be burdened by having to obtain commissions to take out-of-state depositions of New Jersey residents if the case were to remain in New York, and that Farm Family would be prejudiced if the trial were to be conducted in New York, because it would be unable to issue trial subpoenas to the New Jersey witnesses and it would, therefore, have to rely upon the reading of deposition testimony at trial, which would not give a New York jury the benefit of evaluating the witnesses’ credibility.  This would be especially prejudicial since credibility is tantamount in proving a fraud defense.  We argued that, as a result, the case should be dismissed on grounds of forum non conveniens in favor of a New Jersey forum.  Justice Warshawsky of Supreme Nassau agreed, and his opinion is available upon request
Summary Provided by:
Gina M. Fortunato, Esq.
SPEYER & PERLBERG, LLP
Melville, New York

Editor’s Note:  We always admire creative motions that provide excellent results.  Our thanks to Dennis Perlberg who notified us of this decision and his victorious colleague, Gina Fortunato, who provided the summary.

3/12/10           Historical Design, Inc. v. AXA Art
Supreme Court, New York County
Be Careful to Sue the Right Insurer
Plaintiff, Historical Design, Inc., owned a famous sculpture.  Plaintiff agreed to loan the sculpture to Change Performing Arts for an exhibit in Italy.  The loan was conditioned on the borrower obtaining coverage against loss or damage, beginning at the artwork’s original location, continuing during transit to and from the exhibition and while it was on display.  Change Performing Arts supposedly complied with this condition and provided plaintiff with a certificate of insurance evidencing such coverage was placed with AXA Art Insurance Company.  As expected, the sculpture was returned damaged. 
Defendant, AXA Art, disclaimed coverage arguing that plaintiff was not an insured or an additional insured under the policy.  The court reviewed the policy and agreed.  Therefore, the court found that Historical Design’s claim should have been brought against the borrower for failure to procure insurance and not against the insurer.  The court further found that defendant was not the proper party to this action because the policy in question was issued by AXA Art Versicherung AG (the parent company of AXA Art).  Plaintiff failed to submit any evidence which indicated that AXA Art Versicherung AG had dominion and control over its subsidiary, AXA Art.  Lastly, the court rejected any argument that defendant violated GBL 349 and 350-e.  As plaintiff never confirmed the issuer’s identity under after this action was filed, plaintiff’s mistake did not give rise to claims under GBL.  Plaintiff also presented no showing of deceptive acts or practices by the defendant. 
3/16/10           Scott v. Carson
Supreme Court, Schenectady County
A Major Change in Lead Paint Litigation?
The court found that defendants sustained their burden of demonstrating a sufficient factual basis for their request for the educational and medical records, including drug treatment records and the performance of IQ testing, of the infant plaintiffs’ non-party immediate family and that such information was material and necessary to exploring the causation of the infant plaintiffs’ injuries. 
The burden was sustained through pre-natal records which indicated that the infant’s mother only achieved a 10th grade education and that she used alcohol and crack cocaine while pregnant.  Additionally, the infant’s mother’s deposition testimony suggested that the plaintiff’s younger brother had a learning disability.  Defendants also submitted an affidavit of a neuropsychologist who opined that the cognitive and intelligence deficits claimed by the infant plaintiffs were not unique to lead exposure. 
Notably, the court held that disclosure of the plaintiffs’ unidentified aunts, uncles and grandparents was protected and likely to lead to confusion and delay. 
Editor’s Note:  This decision appears to be in direct conflict with appellate case law which holds that such discovery is overbroad and outweighed by the non-party’s right to privacy.  As this decision is sure to be appealed, we will continue to monitor it.  

EARL’S PEARLS
Earl K. Cantwell

[email protected]

The Economic Loss Doctrine: A Tale of Two Cases

Two recent cases in state appellate courts reached seemingly inconsistent outcomes with respect to invocation of the “economic loss doctrine”.  The first is The Indianapolis-Marion County Public Library v. Charlier Clark & Linard, P.C., 2009 WL 280018 (Indiana App. 2/6/09).  The Indiana court held that the “economic loss doctrine” precluded an owner from maintaining claims against engineering firms with whom the owner was not in privity of contract, and whose professional negligence was alleged to have resulted in a need to repair and replace major construction defects.

The Indiana case arose from a large renovation and expansion of a public library.  The library hired an architect who  then hired a structural engineering firm and a civil engineering firm to conduct a site inspection.  The structural engineering firm provided drawings for the design of the parking garage, but after the final concrete pours were completed major voids were discovered in the concrete beams and columns.  Subsequent investigation revealed serious construction and design defects in the garage and a serious risk of structural failure.  Substantial repairs to the tune of $40-$50 Million were required to fix the structural defects and for delays in the project. 

The structural engineer and the site engineer moved for summary judgment on the library’s suit arguing that the “economic loss doctrine” precluded the library’s negligence claim.  The trial court granted the motion to dismiss, and the appeals court agreed and affirmed. 

When damages caused by a defective product or service do not involve personal injury or damage to property other than the product itself, recovery may not be based on tort law.  This “[only[economic loss doctrine” was originally developed in products liability cases and later extended to construction claims.  The appeals court held that the doctrine applied to bar the library’s negligence claims against the structural and site engineer.  The appeals court emphasized that the only damages alleged by the library involved property damage within the scope of the project, primarily for repair and reconstruction of the parking garage. 

The library tried to fit into several exceptions to the economic loss doctrine.  First, the library argued that the doctrine applies only to construction activities and not to design work and did not apply to claims alleging breach of professional standards of care.  The court rejected those arguments holding that a design professional could not be sued in tort by a non-contracting party seeking to recover only costs of repairing the structure. 

The library next argued there is an exception to the economic loss doctrine when the alleged design defect creates an imminent risk of physical harm.  The court held firm and rejected this argument, repeating that a tort law claim can only be brought if there is actual personal injury or property damage.

The library next argued that there is an exception to the economic loss doctrine for negligent misrepresentation claims.  The appeals court rejected that argument as well on substantive law grounds, and also because it was not clear that the library had actually asserted such a negligent misrepresentation claim. 

The appeals court also rejected the library’s argument that the economic loss doctrine applies only to products or objects and not to services. 

In contrast, a Wisconsin appellate court recently held that the economic loss doctrine did not bar a home purchaser from suing a seller’s real estate broker for “fraudulently” failing to disclose adverse real property conditions.  Shister v. Patel, 2009 WL 3447378 (Wisconsin App. 10/28/09).  In the Wisconsin case, the purchasers alleged they were not told by the seller or by the seller’s broker that the basement of a house had been refinished without necessary permits.  The broker was apparently aware that the city recently discovered the non-permitted work and was in the process of reassessing the property to reflect an increase from the remodeling. 

After closing, the purchasers ruefully learned that their property taxes would increase as a result of the reassessment, and to add insult to injury they would have to pay for the permits for the basement remodeling work.  The purchasers sued the seller’s broker for fraudulent non-disclosure.  A trial court granted summary judgment in favor of the broker on the basis of the economic loss doctrine, but this decision was reversed on appeal.

The Wisconsin appeals court held that, under the economic loss doctrine, damages resulting from a product’s failure to provide the value it was supposed to provide may be recovered only in a contract action and not in a tort action.  Here, although the purchasers sought to recover only economic losses, the doctrine did not bar their claim because the purchasers did not have a contractual relationship with the broker.  The Wisconsin appeals court further ruled that the doctrine did not apply to services as opposed to products, and also that the doctrine did not apply to professional malpractice claims. 

These two cases provide good insight into some of the complications and inconsistencies encountered with the economic loss doctrine.

First, in the Indiana case, the library argued for several exceptions to the doctrine, none of which were held to apply.  However, in each state there are many exceptions to the doctrine that have been carved out by the courts to sustain claims. 

Secondly, care should be taken to analyze whether there is actually a contractual relationship between the parties.  In the Wisconsin case, the doctrine was held not to apply because there was no privity of contract, and in the Indiana case the doctrine was held to apply where there was no privity of contract with the defendants in question.

Third, in the Indiana case an argument was made that the economic loss doctrine applied to products and not to services, which was essentially accepted.  In the Wisconsin case, the court held that the doctrine did not apply to services as opposed to products.  In similar fashion, the Indiana court rejected an argument that the doctrine did not apply to professional malpractice claims, while the Wisconsin court accepted the theory that the doctrine does not apply to professional negligence claims.

Part of the explanation for the differing result may be a Wisconsin statute under which the broker apparently may have owed the purchasers an independent, statutory duty to disclose adverse facts within the broker’s knowledge.  This duty was held to be a basis for claims of negligent or intentional misrepresentation, whereas no similar statutory duty was cited in the Indiana case.  However, the lesson is that each state’s law must be examined to see whether there are any statutes or regulations that may apply in these situations which may have a bearing on the parties’ liability, the duties between themselves, whether there are statutory or regulatory duties imposed in addition to any negligence or professional malpractice claims, and whether they give rise to or help establish private causes of action.

ACROSS BORDERS

3/16/2010      Healtheast Bethesda Hospital v. United Commercial Travelers
Eighth Circuit Court of Appeals
Insurer Could Not Rescind Contract Because it Bore the Risk of the Unilateral Mistake
Plaintiff hospital filed claim against defendant insurance company for breach of contract, claiming defendant should not have rescinded the policy due to deceased insured’s misrepresentation of his medical history. The district court granted summary judgment for plaintiff, ruling that the contract was not voidable because the defendant bore the risk of any mistake and it could have avoided the mistake by investigating the insured’s policy. The Eight Circuit affirmed, holding that the defendant was a sophisticated party that bore the risk of the unilateral mistake, and therefore rescission was not available.
Submitted by: Brett J. Preston and Jeffrey J. Wilcox (Hill Ward Henderson)

3/09/2010      George’s Inc. v. Allianz Global Risks US Insurance Company
Eighth Circuit Court of Appeals
Insured’s Claims of Business Expenses and Personal Property Losses were Excluded from Coverage
Plaintiff poultry processing company brought suit against defendant insurer claiming that defendant failed to indemnify the plaintiff for business expenses and personal property losses under the policy. Plaintiff claimed business expenses in the form of fixed labor and overhead costs and personal property losses from chickens that perished. The district court denied defendant’s motion for summary judgment on the business expenses claim and granted defendant’s summary judgment on the personal property claim. The Eighth Circuit reversed the denial of summary judgment on the business expenses claim because the policy unambiguously excluded coverage for both of the claimed losses.
Submitted by: Brett J. Preston and Jeffrey J. Wilcox (Hill Ward Henderson)

REPORTED DECISIONS

Gartner  v. Unified Windows, Doors and Siding, Inc.

Wade Clark Mulcahy, New York, N.Y. (Edward Lomena of
counsel), for appellant.
Perez & Varvaro, Uniondale, N.Y. (Joseph Varvaro of
counsel), for defendant-respondent.

DECISION & ORDER
In an action, inter alia, to recover damages for wrongful death, etc., the defendant Hot Siding, Inc., appeals from an order of the Supreme Court, Queens County (Rosengarten, J.), dated December 3, 2008, which denied its motion pursuant to CPLR 5015(a)(1) and 317 to vacate so much of an order of the same court dated February 17, 2006, as granted that branch of the plaintiffs' motion which was for leave to enter a judgment against it on the issue of liability upon its default in appearing or answering the complaint.
ORDERED that the order dated December 3, 2008, is affirmed, without costs or disbursements.
The Supreme Court providently exercised its discretion in denying that branch of the appellant's motion which was pursuant to CPLR 5015(a)(1) to vacate its default in appearing or answering the complaint, since the appellant failed to demonstrate a reasonable excuse for its three-year delay in appearing (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Gray v B. R. Trucking Co., 59 NY2d 649, 650; Leifer v Pilgreen Corp., 62 AD3d 759, 760; Segovia v Delcon Constr. Corp., 43 AD3d 1143, 1144; Canty v Gregory, 37 AD3d 508). The appellant's mere denial of receipt of the summons and complaint was insufficient to rebut the presumption of proper service created by the affidavit of service upon the Secretary of State, and the appellant did not contend that the address on file with the Secretary of State was incorrect (see CPLR 311[a][1]; Business Corporation Law § 306; Coyle v Mayer Realty Corp., 54 AD3d 713; Commissioners of State Ins. Fund v Nobre, Inc., 29 AD3d 511). Furthermore, the appellant's insurance carrier's lengthy delay before defending the action, without more, was insufficient to establish a reasonable excuse for the default (see Leifer v Pilgreen Corp., 62 AD3d at 760; Martinez v D'Alessandro Custom Bldrs. & Demolition, Inc., 52 AD3d 786, 787; Segovia v Delcon Constr. Corp., 43 AD3d at 1144; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672).
Similarly, that branch of the appellant's motion which was pursuant to CPLR 317 to vacate its default was properly denied, since the appellant failed to demonstrate that it did not receive notice of the action in time to defend (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 141; SFR Funding, Inc. v Studio Fifty Corp., 36 AD3d 604, 605; Commissioners of State Ins. Fund v Nobre, Inc., 29 AD3d 511; Majestic Clothing, Inc. v East Coast Stor., LLC, 18 AD3d 516).
Jimenez v. New York Central Mutual Fire Insurance Company


Faust Goetz Schenker & Blee, LLP, New York, N.Y. (Lisa L.
Gokhulsingh of counsel), for appellant.
Linda T. Ziatz, Ridgewood, N.Y., for respondent.

DECISION & ORDER
In an action pursuant to Insurance Law § 3420(a)(2) to recover the amount of an unsatisfied judgment against the defendant's insured, the defendant appeals from (1) so much of an order of the Supreme Court, Queens County (Kitzes, J.), dated June 20, 2007, as denied that branch of its motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7), (2) a judgment of the same court entered January 2, 2008, which, upon an order of the same court entered January 2, 2008, granting the plaintiff's cross motion for summary judgment on the complaint, is in favor of the plaintiff and against it in the principal sum of $32,382.50, and (3) a judgment of the same court entered June 2, 2008, which, upon the order entered January 2, 2008, and upon an order of the same court entered May 6, 2008, granting its motion to vacate the judgment entered January 2, 2008, and to limit the plaintiff's recovery to the sum of $25,000, is in favor of the plaintiff and against it in the principal sum of $25,000, and the plaintiff cross-appeals from the judgment entered June 2, 2008, on the ground of inadequacy.
ORDERED that the appeal from the order dated June 20, 2007, is dismissed; and it is further,
ORDERED that the appeal from the judgment entered January 2, 2008, is dismissed as academic, as that judgment was vacated by the order entered May 6, 2008; and it is further,
ORDERED that the judgment entered June 2, 2008, is reversed, on the law, the plaintiff's cross motion for summary judgment on the complaint is denied, the orders entered January 2, 2008, and May 6, 2008, are modified accordingly, and the matter is remitted to the Supreme Court, Queens County, for further proceedings in accordance herewith; and it is further,
ORDERED that the cross appeal is dismissed as academic in light of our determination on the appeal from the judgment entered June 2, 2008; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
The appeal from the intermediate order dated June 20, 2007, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from that order are brought up for review and have been considered on the appeal from the judgment entered June 2, 2008 (see CPLR 5501[a][1]).
In an underlying action to recover damages for injuries arising from a motor vehicle accident, the plaintiff obtained a default judgment against Roxana Sanchez in the amount of $32,382.50. The plaintiff thereafter commenced the instant action pursuant to Insurance Law § 3420(a)(2) against Sanchez's insurance carrier, the defendant, New York Central Mutual Insurance Company (hereinafter NYCM), to recover on the unsatisfied judgment. Although the plaintiff did not give NYCM notice of the underlying action against its insured until after the default judgment had been entered, the Supreme Court granted the plaintiff's motion for summary judgment on the complaint in the instant action. We reverse.
A plaintiff may only commence a direct action against an insurer to recover on an unsatisfied judgment entered in a negligence action "at the expiration of thirty days from the serving of notice of entry of judgment upon the attorney for the insured, or upon the insured, and upon the insurer" (Insurance Law § 3420[a][2]), and this requirement is a condition precedent to the commencement of a direct action against the insurer (see Lang v Hanover Ins. Co., 3 NY3d 350, 352; Guayara v Hudson Ins. Co., 48 AD3d 628; Best v Progressive Cas. Ins. Co., 29 AD3d 503).
Although the plaintiff met her prima facie burden of establishing that she satisfied this condition precedent by submitting an affidavit of service attesting that a copy of the judgment in the underlying personal injury action (hereinafter the underlying judgment), with notice of entry, was mailed to NYCM on February 13, 2007 (see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 343-344), a hearing is required on the issue of service since NYCM rebutted the presumption of proper service. Specifically, NYCM submitted the affidavit of its claims manager denying that it received a copy of the underlying judgment prior to the commencement of the instant action (see Liriano v Eveready Ins. Co., 65 AD3d 524; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344).
Further, although NYCM was entitled to disclaim coverage because of the almost two-year delay in receiving notice of the commencement of the underlying negligence action against its insured (see Serravillo v Sterling Ins. Co., 261 AD2d 384; Lauritano v American Fid. Fire Ins. Co., 3 AD2d 564, 568, affd 4 NY2d 1028), a triable issue of fact exists as to the timeliness of the disclaimer (see Insurance Law § 3420[d]; Tex Dev. Co., LLC v Greenwich Ins. Co., 51 AD3d 775, 778; Matter of American Express Prop. Cas. Co. v Vinci, 18 AD3d 655, 656; Moore v Ewing, 9 AD3d 484, 488; see also First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64, 68-69).
Furthermore, while an insurance carrier that knowingly chooses not to participate in an underlying action "may litigate only the validity of its disclaimer and cannot challenge the liability or damages determination underlying the judgment" (Lang v Hanover Ins. Co., 3 NY3d 350, 356 [emphasis added]; Insurance Law § 3420[a][2]), here, NYCM asserts it did not receive notice of the commencement of the underlying action until after the entry of judgment against its insured. Under these circumstances, NYCM is not collaterally estopped from litigating the merits of the underlying action, as it was not provided "a full and fair opportunity to contest the decision now said to be controlling" (Tydings v Greenfield, Stein & Senior, LLP, 11 NY3d 195, 199, quoting Buechel v Bain, 97 NY2d 295, 304, cert denied 535 US 1096). Although summary judgment in favor of the plaintiff should have been denied in light of the existence of the triable issues of fact described above, the award of summary judgment in the plaintiff's favor was premature in any event since NYCM is entitled to raise affirmative defenses, receive responses to its outstanding discovery requests, and conduct additional appropriate discovery relating to the extent of the plaintiff's injuries (see CPLR 3212[f]; Kiernan v DaimlerChrysler Corp., 65 AD3d 614; Desena v City of New York, 65 AD3d 562).
NYCM's contention that the Supreme Court improperly denied its motion to dismiss the complaint for failure to state a cause of action (see CPLR 3211[a][7]) is without merit.

In the Matter of Tri-State Consumer Insurance Company v. Furboter


Robert F. Carlini II, Jericho, N.Y. (Kathleen Geiger of counsel), for
appellant.
Cerussi & Gunn, P.C., Garden City, N.Y. (Brian R. Gunn of
counsel), for respondent.

DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of an underinsured motorist claim, the petitioner appeals from an order of the Supreme Court, Nassau County (Woodard, J.), entered April 13, 2009, which denied the petition and dismissed the proceeding on the merits.
ORDERED that the order is affirmed, with costs.
Contrary to the petitioner's contention, the Supreme Court properly denied its petition to permanently stay the arbitration of the respondent's underinsured motorist benefits claim on the ground of late notice. In determining whether notice was given in a timely fashion, the court must consider the particular circumstances of the case, including, inter alia, the latency, nature, and seriousness of the insured's injuries (see Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487, 493; Matter of Progressive Northeastern Ins. Co. v McBride, 65 AD3d 632, 633). In the instant case, the uncontroverted affidavit and medical records of the respondent demonstrated that his delay of some 16 months in notifying the petitioner of his claim for underinsurance benefits was attributable to the belief of his various treating physicians that his injuries were relatively minor and would resolve with treatment. Moreover, the respondent gave notice promptly after he was made aware of the worsening and permanent nature of his injuries (see Matter of Progressive N. Ins. Co. v Sachs, 50 AD3d 803, 804-805; Matter of New York Cent. Mut. Fire Ins. Co. [Guarino], 11 AD3d 909, 911; Medina v State Farm Mut. Auto. Ins. Co., 303 AD2d 987; Matter of Nationwide Ins. Co. [Bellreng], 288 AD2d 925; Matter of Nationwide Ins. Enter. [Leavy], 268 AD2d 661, 662-663). Accordingly, the respondent complied with his obligation to give notice "[a]s soon as practicable" under the policy.

Bachan v. Paratransit


Harmon, Linder & Rogowsky (Mitchell Dranow, Mineola, N.Y.,
of counsel), for appellant.
The Law Offices of Jeffrey S. Shein & Associates, P.C.,
Syosset, N.Y. (Pamela Wolff Cohen of
counsel), for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Hurkin-Torres, J.), dated January 9, 2009, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
The defendants sustained 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, 956-967).
However, in opposition to the motion, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to her lumbar spine through, inter alia, the affidavit of her treating chiropractor and the affirmed medical report of a neurologist. The affidavit of the plaintiff's chiropractor revealed that she had significant range-of-motion limitations in her lumbar spine shortly after the accident. The affirmed medical report of the plaintiff's neurologist, which was based upon a recent examination, similarly found significant range-of-motion limitations in her lumbar spine, which the neurologist opined had been caused by the subject accident. The plaintiff also submitted the affirmation of a radiologist who interpreted magnetic resonance imaging films of her lumbar spine, and concluded that she had disc bulges at the L4-5 and L5-S1 levels. Contrary to the Supreme Court's determination, these submissions raised a triable issue of fact as to whether the plaintiff sustained a serious injury to her lumbar spine under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident (see Eusebio v Yannetti, 68 AD3d 919; Reyes v Dagostino, 67 AD3d 983; Peter v Palencia, 67 AD3d 660, 661; Azor v Torado, 59 AD3d 367, 368; Williams v Clark, 54 AD3d 942, 943).
Rodriguez v. Grant


Cannon & Acosta, LLP, Huntington, N.Y. (June Redeker of
counsel), for appellant.
McAndrew, Conboy & Prisco (Bryan Cave, LLP [Daniel P.
Waxman and Carolyn B. RicÓn], 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, Nassau County (Palmieri, J.), dated January 27, 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 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, 350-351; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact.
The affirmed medical reports of the plaintiff's treating physicians Dr. Dov J. Berkowitz and Dr. Joseph Gregorace failed to address the findings of the defendant's radiologist, who concluded that the plaintiff's left knee injuries were degenerative in nature and unrelated to the subject accident. Thus, any 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; Cornelius v Cintas Corp., 50 AD3d 1085, 1086-1087; Marrache v Akron Taxi Corp., 50 AD3d 973, 974; Giraldo v Mandanici, 24 AD3d 419, 420).
The affirmed magnetic resonance imaging report of Dr. Raymond Rizzuti merely revealed the existence of a tear of the anterior cruciate ligament and medial meniscus in the plaintiff's left knee. A tear in tendons, as well as 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 Ciancio v Nolan, 65 AD3d 1273; Cornelius v Cintas Corp., 50 AD3d at 1087; see also Su Gil Yun v Barber, 63 AD3d 1140. The plaintiff failed to submit such evidence in opposition to the defendants' motion here. The deposition testimony of the plaintiff was also insufficient to meet this standard (see 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 usual and customary daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Sainte-Aime v Ho, 274 AD2d 569).
Burlington Ins. Co. v. Utica First Ins. Co.


Farber Brocks & Zane LLP, Mineola, N.Y. (Tracy L. Frankel,
Audra S. Zane, and Sherri Pavloff of counsel), for appellant.
Wade Clark Mulcahy, New York, N.Y. (Robert J. Cosgrove and
Menachem Mendel Simon of counsel),
for respondents.

DECISION & ORDER
In an action for a judgment declaring, inter alia, that the defendant is obligated to defend and indemnify the plaintiff Manlyn Development Corp. in an underlying action entitled Wah Cheong Chow v Manlyn Development Corp., pending in the Supreme Court, New York County, under Index No. 106846/06, the defendant appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), entered November 17, 2008, as denied that branch of its motion which was for summary judgment declaring that it is not obligated to defend or indemnify the plaintiff Manlyn Development Corp. in the underlying action.
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 declaring that it is not obligated to defend or indemnify the plaintiff Manlyn Development Corp. in the underlying action is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the defendant is not obligated to defend or indemnify the plaintiff Manlyn Development Corp. in the underlying action.
The plaintiff Manlyn Development Corp. (hereinafter Manlyn) contracted to perform work as construction manager on a renovation project at a property located in Manhattan. Manlyn subcontracted certain work at the site to New York Interiors, Ltd. (hereinafter New York Interiors), as memorialized in a purchase order. The purchase order required New York Interiors to obtain insurance in specified minimum amounts, and to name Manlyn as an additional insured on the Certificate of Insurance. Although the purchase order is dated June 26, 2003, it was not signed and "authorized" by Manlyn until July 9, 2003, and it was not signed by New York Interiors until July 23, 2003.
On June 27, 2003, Wah Cheong Chow, the plaintiff in the underlying action, allegedly was injured when he fell through a sidewalk cellar door at the subject site. He commenced the underlying personal injury action against Manlyn and New York Interiors. The plaintiffs herein commenced the instant action when the defendant Utica First Insurance Company, New York Interiors's insurer, refused to defend and indemnify Manlyn in the underlying action on the ground that Manlyn was not an additional insured pursuant to the terms of the policy's additional insured endorsement. The "blanket additional insured" endorsement provided that an "insured" included any person or organization the insured was required to name as an additional insured on the policy "under a written contract or written agreement." The endorsement further provided that the written contract or agreement must be, inter alia, "[c]urrently in effect or becoming effective during the terms of this policy; and . . . [e]xecuted prior to the bodily injury' [or] personal injury.'" The defendant denied coverage to Manlyn on the ground that the purchase order was not signed at the time of the underlying plaintiff's alleged injury and, therefore, had not been "executed" as of that time.
In the order appealed from, the Supreme Court, inter alia, denied that branch of the defendant's motion which was for summary judgment declaring that it was not obligated to defend or indemnify Manlyn in the underlying action. We reverse the order insofar as appealed from.
"[I]t is well settled that when parties set down their agreement in a clear, complete document, their writing should . . . be enforced according to its terms'" (South Rd. Assoc., LLC v International Bus. Machs. Corp., 4 NY3d 272, 277, quoting Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475; see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162). The agreement "should be read as a whole to ensure that undue emphasis is not placed upon particular words and phrases" (Bailey v Fish & Neave, 8 NY3d 523, 528; see Matter of Westmoreland Coal Co. v Entech, Inc., 100 NY2d 352, 358). Extrinsic evidence may not be considered unless it is determined as a matter of law that the agreement is ambiguous (see South Rd. Assoc., LLC v International Bus. Machs. Corp., 4 NY3d at 278; Greenfield v Philles Records, 98 NY2d 562, 569).
Here, the term "executed" in the additional insured endorsement does not render the policy ambiguous. "[T]hat the term executed' can be interpreted in two ways does not render the contract uncertain or ambiguous" (Rodless Props., L.P. v Westchester Fire Ins. Co., 40 AD3d 253, 254). Rather, the defendant demonstrated that the contract was not "executed" at the time of the alleged accident on June 27, 2003, since it was both unsigned and had not been fully performed at that time (id.; see Nicotra Group, LLC v American Safety Indem. Co., 48 AD3d 253, 253-254). Moreover, there is no support for the plaintiffs' contention that the condition in the additional insured endorsement that the contract be "executed" prior to the bodily injury or personal injury could be satisfied by partial performance. Accordingly, that branch of the defendant's motion which was for summary judgment declaring that it was not required to defend or indemnify Manlyn in the underlying action should have been granted.
Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the defendant is not obligated to defend and indemnify the plaintiff Manlyn Development Corp. in the underlying action (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed, 371 US 74, cert denied 371 US 901).
In light of our determination, the defendant's remaining contention has been rendered academic.
Santiago v. Bhuiyan


Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for appellants.
Pena & Kahn, PLLC, Bronx (Diane Welch Bando of counsel),
for Alejandro Santiago and Gretchen Rosario, respondents.
Jeffrey K. Kestenbaum, Brooklyn, for Yvette Lopez, respondent.
Richard T. Lau & Associates, Jericho (Gene W. Wiggins of
counsel), for Edwin M. Lopez and Pentecostal Church Freed by
Jesus Christ, respondents.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered August 19, 2009, which, to the extent appealed from as limited by the briefs, denied defendants-appellants' motions for summary judgment dismissing the complaints of plaintiffs Rosario and Lopez, unanimously reversed, on the law, without costs, the motions granted, said complaints dismissed as against defendants-appellants, and, upon a search of the record, as against the remaining defendants' as well. The Clerk is directed to enter judgment in favor of all defendants dismissing said complaints.
Defendants-appellants met their initial burden of presenting objective medical evidence that the injured plaintiffs had not suffered a permanent consequential limitation of a body organ or a significant limitation of use of a body function or system through the affirmed reports of their medical experts (see Insurance Law § 5102[d]; Christian v Waite, 61 AD3d 581 [2009]; Blackmon v Dinstuhl, 27 AD3d 241 [2006]). The burden having shifted, summary judgment was warranted because plaintiffs' experts failed to sufficiently raise triable issues of fact.
Plaintiffs also failed to raise triable issues of fact as to whether they were incapacitated from performing substantially all of their usual and customary activities for at least 90 of the first 180 days after the accident, having failed to offer the requisite competent medical proof to substantiate their claims (see Antonio v Gear Trans Corp., 65 AD3d 869 [2009]; Glover v Capres Contr. Corp., 61 AD3d 549 [2009]; Lattan v Gretz Tr. Inc., 55 AD3d 449 [2008]).
Upon a search of the record pursuant to CPLR 3212(b), we find that the non-appealing defendants' summary judgment motions should also be granted (see Nickolson v Albishara, 61 AD3d 542 [2009]; Lopez v Simpson, 39 AD3d 420 [2007]).
Barry v. Future Cab Corp.


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellants.
Budin, Reisman, Kupferberg & Bernstein, LLP, New York,
N.Y. (Adam S. Bernstein of counsel),
for respondent and plaintiff Nafaya
Corporation.

DECISION & ORDER
In an action, inter alia, to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Partnow, J.), dated June 2, 2009, which denied their motion for summary judgment dismissing the first cause of action on the ground that the plaintiff Amadou Barry did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the first cause of action is granted.
This appeal arises from a two-car accident which occurred at an intersection in Manhattan. The first cause of action asserted in the complaint alleged that the plaintiff Amadou Barry sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.
Contrary to the plaintiffs' contentions, the defendants established, prima facie, through the affirmed reports of their expert neurologist, orthopedist, and radiologist, that Barry 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 Systems, 98 NY2d 345, 352; Gaddy v Eyler, 79 NY2d 955, 956-957; 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 in opposition were insufficient to raise a triable issue of fact. The plaintiffs' physicians failed to adequately rebut the findings of the defendants' radiologists that the conditions in the cervical and lumbar regions of Barry's spine, and in both of his knees, were due to degenerative forces unrelated to the accident (see Iovino v Scholl, 69 AD3d 799; Ciordia v Luchian, 54 AD3d 708). Moreover, under the circumstances, the opinion of the plaintiffs' expert orthopedist that Barry's injuries were a result of the accident was conclusory and, thus, insufficient to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). The plaintiffs also failed to submit competent medical evidence that the injuries that Barry allegedly sustained in the subject accident rendered him unable to perform substantially all of his usual and customary daily activities for not less than 90 days of the first 180 days subsequent to the accident (see Shmerkovitch v Sitar Corp., 61 AD3d 843, 844). Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the first cause of action on the ground that Barry did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Burrowes v. New York City Transit Authority


Besen and Trop, LLP, Garden City, N.Y. (Vilma Blankowitz of
counsel), for appellant.
Steve S. Efron, New York, N.Y., for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Miller, J.), dated January 27, 2009, as granted the defendants' motion for summary judgment dismissing the complaint on ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
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).
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 for summary judgment were sufficient to raise a triable issue of fact (see Page v Belmonte, 45 AD3d 825, 826; Coscia v 938 Trading Corp., 283 AD2d 538).
Chery v. Souffrant


Barry & Associates, LLC, Plainville, N.Y. (Glenn Grattan of
counsel), for appellants.
Harmon, Linder & Rogowsky, New York, N.Y. (Mitchell
Dranow of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from a judgment of the Supreme Court, Rockland County (Garvey, J.), entered January 28, 2009, which, upon a jury verdict on the issue of damages, and upon the denial of their motion pursuant to CPLR 4404 to set aside the verdict as contrary to the weight of the evidence and for a new trial or, in effect, to set aside the verdict and for judgment as a matter of law, or to set aside the damages award as excessive, is in favor of the plaintiff and against them in the principal sum of $50,000.
ORDERED that the judgment is affirmed, with costs.
This action arises from a two-car collision, occurring on July 24, 2006, in which a motor vehicle operated by the plaintiff was struck in the rear by a motor vehicle operated by the defendant Lavaud Souffrant and owned by the defendant Jean Ricot. At trial, the jury determined that, as a result of the subject motor vehicle accident, the plaintiff sustained a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of her usual and customary activities for not less than 90 days during the first 180 days immediately following the accident (see Insurance Law § 5102[d]). The jury awarded the plaintiff the principal sum of $50,000 for pain and suffering. Thereafter, the defendants moved to set aside the verdict as contrary to the weight of the evidence or, in effect, for judgment as a matter of law, or to set aside the damages award as excessive. The Supreme Court denied the motion.
For a court to determine that a jury verdict is not supported by legally sufficient evidence, it must conclude that there is "no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v Hallmark Cards, Inc., 45 NY2d 493, 499). The standard for determining whether a jury verdict is contrary to the weight of the evidence is whether the evidence so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744, 746; Tapia v Dattco, Inc., 32 AD3d 842, 845). "Where the verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view" (Torres v Esaian, 5 AD3d 670, 671). Here, the evidence was legally sufficient to support the jury's conclusion that, based on the evidence before it, the plaintiff sustained a medically determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of her usual and customary activities for not less than 90 days during the 180 days immediately following the subject motor vehicle accident (see Insurance Law § 5102[d]). Additionally, the jury's finding in that regard was based on a fair interpretation of the evidence and, thus, was not contrary to the weight of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744).
The amount of damages to be awarded to a plaintiff for personal injuries is a question for the jury, and its determination will not be disturbed unless the award deviates materially from what would be reasonable compensation (see CPLR 5501[c]; Keaney v City of New York, 63 AD3d 794, 795). Under the circumstances presented herein, the award did not deviate materially from what would be reasonable compensation.
The defendants' remaining contention is without merit.
George v. Suarez


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellant A. Mario Elvin Suarez.
Michael A. Cardozo, Corporation Counsel, New York, N.Y.
(Barry P. Schwartz and Deborah A.
Brenner of counsel), for appellants
City of New York, New York City Fire
Department, and Darren G. Jacobs.
Rappaport, Glass, Greene & Levine, LLP, New York, N.Y.
(James L. Forde of counsel), for
respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant A. Mario Elvin Suarez appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Velasquez, J.), dated June 18, 2009, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and the defendants City of New York, New York City Fire Department, and Darren G. Jacobs separately appeal, as limited by their brief, from so much of the same order as denied that branch of their cross motion which was 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 reversed insofar as appealed, on the law, with one bill of costs payable to the defendants appearing separately and filing separate briefs, the motion of the defendant A. Mario Elvin Suarez for summary judgment dismissing the complaint insofar as asserted against him is granted, and that branch of the cross motion of the defendants City of New York, New York City Fire Department, and Darren G. Jacobs which was for summary judgment dismissing the complaint insofar as asserted against them is granted.
The evidence submitted established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). The affirmed medical reports of the examining neurologist and orthopedist concluded, based upon objective range-of-motion tests, that the plaintiff had full range of motion in the cervical and lumbar areas of his spine.
In opposition to the motion of the defendant A. Mario Elvin Suarez and the cross motion of the defendants City of New York, New York City Fire Department, and Darren G. Jacobs, the plaintiff failed to present any range-of-motion findings that were contemporaneous with the subject accident (see Taylor v Flaherty, 65 AD3d 1328; Fung v Uddin, 60 AD3d 992; Gould v Ombrellino, 57 AD3d 608; Kuchero v Tabachnikov, 54 AD3d 729; Ferraro v Ridge Car Service, 49 AD3d 498). The plaintiff also failed to proffer competent medical evidence that he sustained a medically-determined injury of a nonpermanent nature which prevented him, for 90 of the 180 days following the subject accident, from performing his usual and customary activities (Morris v Edmond, 48 AD3d 432, 433). Therefore, the plaintiff failed to raise a triable issue of fact (see CPLR 3212[b]), and the defendants are entitled to summary judgment dismissing the complaint.
Larson v. Delgado


Alexander Dranov, Fort Lee, New Jersey, for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York,
N.Y. (Stacy R. Seldin 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, Kings County (Schneier, J.), dated January 30, 2009, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
In this action to recover damages for personal injuries allegedly sustained in an automobile accident, the defendant moved 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). The Supreme Court granted the defendant's motion, finding, in effect, inter alia, that after the defendant established his prima facie entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact because she did not present evidence of range-of-motion limitations contemporaneous with the accident. We affirm, albeit on a different ground.
The defendant met his prima facie burden of establishing 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 affirmed medical reports of the plaintiff's treating and examining physicians, Dr. Lyudmila Konon, Dr. Victor Katz, and Dr. Gary Starkman, failed to address the findings of the defendant's radiologist, Dr. Robert Tantleff, who concluded that the injuries to the cervical and lumbar regions of the plaintiff's spine and the left knee were degenerative in nature and unrelated to the subject accident. Thus, any conclusions of the plaintiff's physicians 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; Shmerkovich v Sitar Corp., 61 AD3d 843; Johnson v Berger, 56 AD3d 725; Ciordia v Luchian, 54 AD3d 708).
Furthermore, the affirmed magnetic resonance imaging reports of Dr. Charles DeMarco and Dr. Charles Cooper merely revealed the existence of a tear of the medial meniscus in the plaintiff's left knee and various bulging discs in the cervical and lumbar regions of her spine. This Court has routinely held that a tear in tendons, as well as a tear in a ligament, or a bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration (see Ciancio v Nolan, 65 AD3d 1273; Niles v Lam Pakie Ho, 61 AD3d 657; Sealy v Riteway-1, Inc., 54 AD3d 1018; Kilakos v Mascera, 53 AD3d 527; Cornelius v Cintas Corp., 50 AD3d 1085, 1087). Here, the plaintiff failed to submit any such evidence in opposition to the defendant's motion. The affidavit of the plaintiff also was insufficient to meet this standard (see Luizzi-Schwenk v Singh, 58 AD3d 811, 812; Sealy v Riteway-1, Inc., 54 AD3d 1018).
The plaintiff's remaining contention is without merit.
Niazov v. Corlean Cab Corp.


Baker, McEvoy, Morrissey & Moskovits, P.C., New York,
N.Y. (Stacy R. Seldin of counsel), for appellants.
Goidel & Siegel, LLP, New York, N.Y. (Andrew B. Siegel
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 (Vaughan, J.), dated June 17, 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). In support of their motion, the defendants relied upon, inter alia, the report of an orthopedic surgeon who examined the plaintiff. The report was without any probative value since he failed to affirm the contents of his report under the penalties of perjury, as required by CPLR 2106 (see Magro v He Yin Huang, 8 AD3d 245; Slavin v Associates Leasing, 273 AD2d 372; Baron v Murray, 268 AD2d 495; Cwiekala v Siddon, 267 AD2d 193). Without the report, the defendants could not meet their burden on the motion.
Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Gaccione v Krebs, 53 AD3d 524; Coscia v 938 Trading Corp., 283 AD2d 538).
Parker v. Singh


Scott Inwald, Brooklyn, N.Y. (Alexander Dranov of counsel), for
appellants.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York,
N.Y. (Stacy R. Seldin of counsel), for
defendants third-party plaintiffs-
respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Schack, J.), dated April 17, 2009, which granted the separate motions of the defendants third-party plaintiffs and the third-party defendant William P. Walsh, Jr., for summary judgment dismissing the complaint on the ground that neither of them 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 third-party plaintiffs and the third-party defendant William P. Walsh, Jr., and the separate motions of the defendants third-party plaintiffs and the third-party defendant William P. Walsh, Jr., for summary judgment dismissing the complaint are denied.
Although the Supreme Court properly determined that the defendants and the third-party defendant William P. Walsh, Jr., met their respective prima facie burdens of establishing 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 Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957), the Supreme Court erred in determining that the plaintiffs failed to raise a triable issue of fact.
In opposition to the motions, the plaintiffs Jamellah Parker and David Greaves each relied on the affirmation and report of their treating physician, Dr. Ramy Hanna, and the affirmed medical report of Dr. Gary Starkman. In his report related to Parker, Dr. Hanna explained that he had examined Parker contemporaneously with the subject accident, and found significant limitations in the cervical and lumbar regions of her spine which were caused by the accident. Dr. Starkman conducted a recent examination of Parker and found that she continued to have significant limitations in the cervical and lumbar regions of her spine, which were permanent, and causally related to the accident.
With respect to Greaves, Dr. Hanna examined him contemporaneously with the subject accident and found significant limitations in his right knee that were caused by the accident. Dr. Starkman conducted a recent examination of Greaves and found that he continued to have limitations in his right knee even after undergoing arthroscopic surgery to repair it. Dr. Starkman opined that Greaves's injuries were permanent and causally related to the accident.
Thus, the plaintiffs raised a triable issue of fact as to whether Parker sustained a serious injury to the cervical and lumbar regions of her spine as a result of the subject accident, and whether Greaves sustained a serious injury to his right knee (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).
Yeong Hee Kwak v. Villamar


Sim & Park, LLP, New York, N.Y. (Sang J. Sim of counsel), for
appellant.
Russo, Apoznanski & Tambasco, Westbury, N.Y. (Susan J.
Mitola 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, Nassau County (Parga, J.), entered January 30, 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 Supreme Court properly determined that the defendant met her prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). However, the Supreme Court erred in determining that the plaintiff failed to raise a triable issue of fact.
In opposition to the defendant's motion, the plaintiff relied on the affidavit of her treating chiropractor, Dr. Duk Soon Park, who 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 serious injury to the cervical and lumbar regions of her 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).
The defendant's remaining contention is without merit.
Tower Ins. Co. New York v. Christopher Court Housing Company


Law Offices of Max W. Gershweir, New York (Jennifer W.
Kotlyarsky of counsel), for appellant.
Comerford & Dougherty, LLP, Garden City (Mary Guerin
Comerford of counsel), for respondent.
Order, Supreme Court, New York County (Louis B. York, J.), entered October 24, 2008, which, in a declaratory judgment action involving whether plaintiff insurer has a duty to defend or indemnify defendant insured in an underlying action brought against defendant for personal injuries allegedly sustained in an assault on its premises, denied plaintiff's motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted, and it is declared that plaintiff has no duty to defend or indemnify defendant.
A residential tenant in defendant's building was allegedly assaulted in the hallway outside her apartment. The incident report generated by the security guard on duty, which was submitted to defendant's employee, the building's property manager, reported that the tenant claimed she was "grabbed" by the assailant, police and emergency medical personnel were called to the scene, and there was "no evidence" of the assailant. The police report, which the property manager did not obtain, reported that the tenant stated that an unknown assailant came out from the stairwell, grabbed her, pulled her hair, knocked off her glasses and that her arm was scratched; that the tenant was going through an "anxiety attack," was "very distraught," and was taken to the hospital by emergency medical personnel; and that the officers canvassed the premises but were unable to find the assailant. There is no dispute that plaintiff's first notice of the incident was its receipt of the tenant's summons and complaint against defendant some three months after the incident. The argument on appeal involves whether such delay was reasonably based on a good-faith belief in nonliability.
In order to excuse a failure to give timely notice, a good-faith belief in nonliability "must be reasonable under all circumstances, and it may be relevant on the issue of reasonableness, whether and to what extent, the insured has inquired into the circumstances of the accident or occurrence" (Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 441 [1972], see White v City of New York, 81 NY2d 955, 958 [1993]).
Defendant argues that its delay in giving notice was reasonable where there was no evidence that the tenant was knocked down by the assailant, security staff told the property manager that a problematic rear door was closed at the time of the incident, and the property manager observed the tenant to be uninjured and was rebuffed by the tenant when she attempted to talk to her about the incident. Such circumstances, as a matter of law, do not show a reasonable inquiry. The property manager knew that the building's security staff did not speak to the tenant and had learned of the incident from the responding police officers. Had the property manger inquired whether a police report had been filed, as she should have, she would have learned of details that were not reported by the security staff, including that the tenant was in distress and had been taken from the building by ambulance. Coupled with her personal knowledge of a potentially hazardous condition — a fire exit door that was sometimes found propped open or held open from the insider by tenants — the police report would have alerted the property manager to the possibility of a claim (see SSBSS Realty Corp. v Public Serv. Mut Ins. Co., 253 AD2d 583 [1998]).
JPMorgan Chase & Co., v. The Travelers Indemnity Company

Defendant Twin City Fire Insurance Company appeals from a judgment of the Supreme Court, New York County (Charles E. Ramos, J.), entered May 21, 2009, awarding plaintiffs damages against said defendant pursuant to an order, same court and Justice, entered May 19, 2009, which granted plaintiffs' motion for summary judgment, and order, same court and Justice, entered March 10, 2009, which, inter alia, granted plaintiffs' motion for partial summary judgment and denied said defendant's cross motion for summary judgment dismissing the complaint.

Arkin Kaplan Rice LLP, New York (Howard J.
Kaplan, Lisa C. Solbakken, Michael
J. McLaughlin and Elizabeth
A. Fitzwater of counsel), for
appellant.
Proskauer Rose LLP, New York (John H. Gross,
Steven E. Obus, Francis D. Landrey
and Michelle R. Migdon of
counsel), for respondents.

ABDUS-SALAAM, J.
In this declaratory judgment and breach of contract action, plaintiffs JPMorgan Chase & Co., JPMorgan Chase Bank and J.P. Morgan Securities, Inc. (collectively JPMC) seek a declaration that defendant Twin City Fire Insurance, Inc. (Twin City) is obligated to indemnify them in the amount of the limits of their coverage ($22.5 million) for losses incurred in connection with the defense and settlement of a series of federal court class action suits arising out of Enron's financial collapse, as well as several lawsuits filed by Enron investors in state courts. JPMC ultimately paid more than $2.2 billion to settle the Enron actions. The motion court rejected Twin City's defenses, including that JPMC had failed to comply with the notice provision of the "claims-made" policy at issue here, and directed that judgment be entered in favor of plaintiffs in the amount of $22,500,000 plus prejudgment interest, together with costs and disbursements, all together amounting to $28,358,180.14.
Twin City was a $22.5 million participant in a combined lines program providing JPMC with a total of $200 million in Bankers Professional Liability insurance, effective November 30, 1997 to November 30, 2001 (the 97-01 Program). Twin City was not a participating insurer at the inception of the 97-01 Program,  but, effective July 15, 2000, replaced Reliance Insurance Company
as an excess insurer by providing coverage for the second excess layer of $10 million excess of $30 million and for the sixth excess layer of $12.5 million excess of $70 million. The binders issued by Twin City adopted the terms of coverage as bound by Reliance, which incorporated the terms and conditions of the primary policy issued by Lloyd's, London. The "claims-made" policy afforded coverage both for claims made against the insured during the policy period, as well as claims made subsequent to the policy period, provided that the insured gave notice during the policy term of any act, error or omission that may subsequently give rise to a claim. As set forth in the Lloyd's primary policy:
"If during the Policy Period . . . the Risk and Insurance Management Department shall become aware of any act, error or omission which may subsequently give rise to a claim being made against an Insured and shall during the Policy Period . . . give written notice of such act, error or omission, then any claim which is subsequently made against the Insured arising out of such act, error or omission shall for the purpose of this policy be treated as a claim made during the Policy Period."
An addendum to the Lloyd's primary policy substituted the words "Wrongful Act" for all references to "acts, errors or omissions" throughout the policy. Another addendum defined "Wrongful Act" to include any "(i) act, error or omission by the Insured or any person or entity for whom the Insured is legally responsible, or (iv) dishonest or fraudulent act or omission by any officer or employee of the Named Corporation or any Subsidiary Company."
The record shows that in late November 2001, as the 97-01 Program was nearing expiration and JPMC was seeking renewal of its insurance for the 2001-2002 policy period, Enron's credit rating had been downgraded to junk status and there was speculation in the press that Enron was headed for bankruptcy. According to Richard Straub, Vice President, Corporate Insurance Services for JPMC, the insurers that were considering participating in the renewal program, including Twin City, "began to balk at providing coverage for Enron claims under the subsequent program," because [t]hey did not want to effectively buy a loss.'" These insurers inquired as to whether JPMC had noticed or was going to notice Enron claims under the 97-01 policy, and certain of them made clear that JPMC must provide notice of the Enron circumstances to the 97-01 insurers as a condition of these prospective insurers binding coverage under the new 01-02 Program. Mr. Straub, in conjunction with others, made the decision to notice potential claims to the 97-01 Program both because he was concerned about potential claims that might arise from JPMC's provision of professional services to Enron and because he wanted to obtain coverage for the 01-02 period.
On November 29, 2001 JPMC's insurance broker, Marsh & McLennan, sent an e-mail to the 01-02 insurers, including Twin City, outlining the terms pursuant to which the insurers agreed to bind coverage:
"As discussed, it was agreed to put the expiring contract on notice of the ENRON circumstance. JP Morgan Chase is in the process of drafting this notice and putting the prior policy on notice. It was also agreed, that in the event a Claim does arise out of this ENRON matter, this current policy shall apply (subject to this policy's terms and conditions) in the event that there is a final adjudication that no coverage exists under the prior Blended policy solely due to such claim not fulfilling the notice requirements under the prior policy - wording to be agreed."

Twin City's binder for the 01-02 Program provides that it will follow the terms and conditions of the November 29, 2001 e-mail. Stephen Guglielmo, a Twin City underwriter, testified that Enron's demise caused him concern about the renewal of JPMC's policy because of the possible exposure to an Enron claim, and that as he recalls, Enron claims were going to be noticed for the 97-01 policy and excluded from the 01-02 policy which gave him "some comfort in being part of an ongoing program with JPMorgan Chase."
On November 29, 2001 at 9 P.M., three hours before the 97-01 policy was to expire, JPMC sent the following e-mail to Twin City through its broker, Marsh: 
"On November 28th 2001 it was announced that various credit agencies had downgraded Enron, Inc. debt to junk status. In addition it was announced that merger discussions with Dynegy, Inc. had been terminated. In light of this situation J.P. Morgan Chase & Co. released a statement disclosing that it has approximately $500 million of unsecured exposure to various Enron entities, including loans, letters of credit and derivatives. It was also confirmed that it has additional exposures of $400 million secured by the Transwestern and Northern Natural pipelines.

J.P. Morgan Chase & Co. and its subsidiaries and affiliates, and their directors and officers ("JP Morgan Chase") have an extensive relationship with Enron which includes, but is not necessarily limited to, lending, merger & acquisition advisory services, restructuring advisory services, various SWAPS transactions, purchaser of gas/energy and serving as indenture trustee for Enron's public debt. While we have not received notice of any claim or potential claim at this time[,] it is anticipated that we may be named in litigation expected to arise out of the financial difficulties of Enron as a result of the relationship described above."

Fifteen minutes later, JPMC, again through Marsh, sent another e-mail which advised "please disregard the earlier email regarding this matter." The second e-mail contained the language quoted above, but with the following language added:

"Such litigation could include, among other things, allegations of breaches of fiduciary duty, aiding and abetting breaches of fiduciary duty, errors and omissions, securities fraud, negligence (including gross negligence), fraudulent conveyance, equitable subordination and misrepresentation. While JP Morgan Chase would vigorously contest the validity of any such claims, and has no actual knowledge of such acts, we believe that all of the foregoing constitute Wrongful Acts that could give rise to a claim under the policy."
Twin City responded on November 30, 2001 with a letter acknowledging receipt of the correspondence, informing Marsh of the name of the individual assigned to the matter, and stating that "[i]n the meantime all rights and defenses afforded under any applicable policy, at law, or in equity should be considered reserved." On January 17, 2002, Lloyd's accepted the notice "as notice of a potential claim under the BPL [Bankers Professional Liability] section of the [p]olicy." Subsequently, other insurers did so as well. Only one excess insurer, American International Specialty Lines Insurance Company (AISLIC), asserted that the notice was deficient. AISLIC, which was a defendant in this lawsuit, ultimately settled with JPMC for its Enron claims under the 97-01 program after the motion court denied its motion for an order dismissing the complaint pursuant to CPLR 3211 (a)(1) and (7).
Twin City never indicated to JPMC its position that the notice was in any way deficient until this litigation, where in its answer it asserted affirmative defenses, alleging, among other things, that coverage is barred because JPMC failed to satisfy conditions precedent to coverage, failed to provide timely, sufficient and appropriate written notice of claims and made false statements in the notices of claims.
Additionally, Twin City maintains that it has no obligation under the 01-02 policy, and has interposed counterclaims seeking damages and rescission of its participation in the 01-02 Program, alleging that it was induced to renew coverage to JPMC as the result of the fraudulent misrepresentation contained in the notice that JPMC had "no actual knowledge" of acts that could give rise to claims in connection with Enron under the 97-01 program, when JPMC in fact had actual knowledge that it had assisted Enron in manipulating its financial statements, and had learned "[b]y no later than November 19, 2001 . . . that many of the transactions it had either designed for Enron, or had engaged in as a participant, were directly responsible for Enron's deteriorating financial conditions."
Twin City initially moved in July 2006 for an order pursuant to CPLR 3211(a)(1) and (7) dismissing the complaint on the ground that JPMC's November 29, 2001 letter did not provide it with sufficient notice of the potential claim. The motion court denied the motion, finding that the notice was sufficient. In June 2007, in response to a motion by JPMC for partial summary judgment, Twin City cross-moved for summary judgment, again asserting that the notice was legally insufficient. That cross motion was denied. In June 2008, following extensive discovery, JPMC moved, in this action and two related actions it had commenced against Twin City arising out of Twin City's refusal to indemnify JPMC in connection with professional services rendered to other corporations (the Worldcom action and the National Century Financial Enterprises, Inc., action), for partial summary judgment dismissing Twin City's counterclaims and certain affirmative defenses. Twin City cross-moved (in this action only) for summary judgment dismissing the complaint on the ground that the notice was insufficient to invoke coverage under the  97-01 policy period. JPMC "cross-moved"[FN1] (in this action only) for partial summary judgment dismissing the affirmative defenses to the extent that they contested the legal sufficiency of the notice. On March 10, 2009 the motion court granted JPMC's motion for partial summary judgment dismissing Twin City's affirmative defenses insofar as they challenged the sufficiency of the notice, denied Twin City's motion for summary judgment, and ordered that JPMC's motion for summary judgment dismissing defendant's counterclaims and certain affirmative defenses is sub judice and that the remainder of the action was to continue. In December 2008, following the completion of discovery, JPMC moved for summary judgment on all remaining liability issues and damages. The motion was granted and Twin City appealed from the March 10 order and the May 21 judgment.
The motion court correctly held that the notice to Twin City was valid under the 97-01 Program. Twin City argues that JPMC did not meet the condition precedent to coverage because 1) at the time of the notice, JPMC's Risk and Insurance Management Department, in particular Mr. Straub, had no awareness of any wrongful act, and 2) the notice did not identify any specific wrongful act. Twin City puts great stock in the fact that the notice states that JPMC has no actual knowledge of the acts listed, including breach of fiduciary duty, misrepresentation, fraud and negligence, and that Straub testified that the notice was JPMC's "effort to identify the types of acts and activities which we were involved with which, not specific to us, JPMorgan Chase, but as a general situation could, in the financial world . . . give rise to a claim."
However, Twin City's assertion that there was no awareness by JPMC of any wrongful acts, but only conjecture, rings hollow. It is clear from the record that there was heightened awareness, by both JPMC and its insurers in the days prior to the expiration of the 97-01 policy, of the impending implosion of JPMC's client Enron, which awareness led to the last minute filing of the notice of potential claims encompassing wide-ranging legal and financial issues that were almost certain to arise.
It is beyond cavil that the entire purpose of the notice, from both the perspective of the insured and the insurers, including Twin City, was "to put the expiring contract on notice of the ENRON circumstance" (emphasis added). And the notice accomplished this goal, as it presaged the allegations of the Enron lawsuits, including claims that JPMC, as one of the principal lending banks, loaning over a billion dollars to Enron, knew that Enron was falsifying its publicly reported financial results and that JPMC helped raise over $2 billion from the investing public for Enron and made false and misleading statements in registration statements and prospectuses used by Enron to raise billions of dollars in new capital for Enron. The notice identified claims that were likely to arise out of enumerated acts and in the context of the particular unfolding circumstances of the Enron debacle, all of which were described in the notice.
In a "claims-made" policy, the purpose of the provision requiring notice of potential claims before the end of the policy is to provide "a certain date after which an insurer knows that it is no longer liable under the policy, and accordingly, allows the insurer to more accurately fix its reserves for future liabilities and compute premiums with greater certainty" (City of Harrisburg v International Surplus Lines Ins. Co., 596 F Supp 954, 962 [M D Pa 1984], affd 770 F2d 1067 [3rd Cir 1985]).
The notice here, with its reference to Enron and its catalog of the transactions with Enron, is analogous to, if not more detailed than, other notices that have been held to be sufficient pursuant to similar notice provisions in claims-made policies.
For example, in Federal Sav. & Loan Ins. Corp. v Heidrick (774 F Supp 352, 355 [D Md 1991], on reconsideration 812 F Supp 586 [D Md 1991], affd sub nom. Federal Deposit Ins. Co ]v American Cas. Co., 995 F2d 471 [4th Cir 1993]) where the notice set forth wrongful acts including "possible self-dealing by certain officers and directors in the construction of the . . . main office building, and violations of regulations, breaches of fiduciary duty, and negligent acts or omissions by Officers and Directors . . . relating to the construction of [the] main office building and by authorizing, approving and administering various loans and projects," the court held that the notice satisfied the purpose of the policy by giving the insurer a date certain and allowing it to fix its reserves accurately and compute premiums. In Bodewes v Ulico Cas. Co. (336 F Supp 2d 263 [WD NY 2004], affd in part and vacated in part on other grounds, 165 Fed Appx 125 [2d Cir 2006]), the notice was held valid where the Trustees of the Buffalo Carpenters Health Care Premium Benefit, Annuity & Pension Funds gave notice that claims would likely be made as the result of the decline in the financial status of the funds and of certain specific instances of alleged mismanagement, "as well as additional claims [that] would be likely to result in the filing of legal action against the Trustees" (336 F Supp 2d at 278 [internal quotation marks omitted]).
Furthermore, in Resolution Trust Corp. v American Cas. Co. (874 F Supp 961 [ED Mo 1995]), the court upheld a notice by a savings and loan reporting that a Federal Home Loan Bank supervisor had made statements regarding certain real estate projects to the effect that because of some deficiencies in documentation, if the projects result in losses, responsibility for these losses would be placed directly on the bank's board of directors. A follow up letter contained the identity of a potential claimant and "very vague descriptions of the circumstances under which the insureds became aware of a potential claim and the nature of claim" (id. at 965). The court rejected the insurer's contention that the letters did not provide "enough specific information to constitute adequate notice" (id.), noting that there was no requirement of such specificity in the policy. Nor is there such a requirement of specificity in this policy, which requires only that the insured give written notice of "wrongful acts," defined as any act, error or omission, or dishonest or fraudulent act or omission.
Twin City's citation to Home Ins. Co. v Cooper & Cooper, Ltd. (889 F 2d 746 [7th Cir 1989]), is unpersuasive, as it actually supports JPMC's position. In Home Ins., an attorney who was the sole shareholder of his firm embezzled from accounts held by his firm, casting the firm into bankruptcy. The bankruptcy trustee made claims before the policy expired on every matter the firm had ever handled. The court held the notice ineffective, finding that
"[i]f the trustee had reason to believe that the firm's work in a given case would lead to liability, it was entitled under the policy to inform the insurer within the period of coverage and to ensure indemnity if the potential came to pass. An effort to lodge claims on everything, to extend indefinitely the coverage of a 15-month policy, has no similar effect; it is merely vexatious" (id. at 750 [emphasis added]).

Here, the notice focused on a given situation — the Enron collapse - and set forth the many different aspects of professional services that might give rise to claims.
Similarly, Twin City's reliance on American Cas. Co v Wilkinson (1990 WL 302175, 1990 US Dist LEXIS 20153 [WD Okla 1990], is misplaced. In that case, the insured bank's notice listed 50 different individuals or entities who did business with the bank, and unlike the notice here, "[no] information was given about the events or circumstances giving rise to these alleged potential claims" (1990 WL 302175, *3, 1990 US Dist LEXIS 20153, *9).
In sum, the notice here was sufficient and the insured met the condition precedent for coverage.
We have considered Twin City's other arguments and find them unavailing, including the assertion that the loss arising out of the defense and settlement of the underlying litigation was not entirely for "professional services" covered under the policy and that there should have been some allocation performed by the trial court in awarding damages. Professional services is defined broadly in the policy to include all services provided by JPMC, including, but not limited to, Investment Banking Activities and Lending Activity. The underlying litigation specified these types of activities as giving rise to the claims. Thus, the losses are covered under the policy.
Accordingly, the judgment of the Supreme Court, New York County (Charles E. Ramos, J.), entered May 21, 2009, awarding plaintiffs the aggregate amount of $28,359,180.14 against defendant-appellant pursuant to an order, same court and Justice, entered May 19, 2009, which granted plaintiffs' motion for summary judgment, and order, same court and Justice, entered March 10, 2009, which, inter alia, granted plaintiffs' motion for partial summary judgment and denied appellant's cross motion for summary judgment dismissing the complaint should be affirmed, with costs.
All concur.

Judgment, Supreme Court, New York County (Charles E. Ramos, J.), entered May 21, 2009, and order, same court and Justice, entered March 10, 2009, affirmed, with costs. Footnotes
Footnote 1: The motion court noted the impropriety of attempting to file a cross motion to a cross motion but nonetheless considered the application, in the absence of prejudice to Twin City, which had submitted its opposition to that application.
Powell v CVS Jerusalem North Bellmore, LLC,


Daniel J. Sweeney & Associates, PLLC, White Plains, N.Y. (Brian
M. Hussey of counsel), for third-party defendant-appellant.
McAndrew, Conboy & Prisco, LLP, Woodbury, N.Y. (Mary C.
Azzaretto of counsel), for defendants
third-party plaintiffs-respondents.
Mazzara & Small, P.C., Hauppauge, N.Y. (Perry T. Criscitelli of
counsel), for third-party defendant-
respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the third-party defendant Snow Management Group appeals from so much of an order of the Supreme Court, Nassau County (Winslow, J.), dated March 28, 2008, as denied its motion for summary judgment dismissing the third-party complaint insofar as asserted against it and granted that branch of the motion of the defendants third-party plaintiffs which was for summary judgment on the issue of Snow Management Group's liability for breach of contract for failure to procure insurance.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.
The plaintiff fell while descending the handicap ramp of a parking lot owned by the defendant Bellmore Holding Co., Inc. (hereinafter Bellmore Holding), and leased to the defendant CVS Pharmacy (hereinafter CVS), allegedly due to a defect where the ramp met the parking lot. CVS and Bellmore asserted third-party claims against, among others, the appellant Snow Management Group (hereinafter SMG), for common-law and contractual indemnification, and to recover damages for breach of contract for failure to procure insurance. The third-party claims against SMG were grounded on allegations that, during the course of snow removal efforts, SMG negligently damaged that portion of the premises where the plaintiff was injured.
Factual issues as to the cause and location of the alleged defect which gave rise to the plaintiff's injuries preclude the award of summary judgment dismissing the third-party claims for contractual and common-law indemnification insofar as asserted against SMG (see Watters v R. D. Branch Assoc., L.P., 30 AD3d 408; Baratta v Home Depot USA, 303 AD2d 434; Boskey v Gazza Props., 248 AD2d 344).
Moreover, in opposition to the defendants third-party plaintiffs' prima facie establishment of their entitlement to judgment as a matter of law, based on SMG's failure to procure insurance naming it as an additional insured, SMG failed to submit evidentiary proof in admissible form sufficient to raise a triable issue of fact (see Chaehee Jung v. Kum Gang, Inc., 22 AD3d 441).
The remaining contentions of SMG are without merit.
FISHER, J.P., MILLER, ENG and HALL, JJ., concur.
Progressive Northeastern Ins. Co. v North State Autobahn, Inc.

Nelson Levine DeLuca & Horst, LLC, New York, N.Y. (Michael R.
Nelson of counsel), for appellant.
Medina, Torrey, Santangelo, Mamo & Camacho, P.C., Sleepy
Hollow, N.Y. (Richard Paul Stone of
counsel), for respondents.

DECISION & ORDER
In an action, inter alia, to recover damages for fraud, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Smith, J.), dated January 12, 2009, which, upon the granting of the defendants' motion pursuant to CPLR 4401 to dismiss the complaint, made at the close of the plaintiff's evidence, is in favor of the defendants and against it, dismissing the complaint.
ORDERED that the judgment is reversed, on the law, with costs, the motion is denied, the complaint is reinstated, and a new trial is granted.
The defendants established their prima facie entitlement to judgment as a matter of law (see Sitar v Sitar, 61 AD3d 739, 741; cf. Smith v Ameriquest Mtge. Co., 60 AD3d 1037, 1039). In opposition, however, the plaintiff demonstrated that there were triable issues of fact, inter alia, regarding whether the defendants had charged for repairs not performed, for parts not installed, for unnecessary repairs, and for excess labor charges (see Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187, 194). Accordingly, the Supreme Court correctly denied that branch of the defendants' motion which was for summary judgment dismissing the complaint.
The Supreme Court did not improvidently exercise its discretion in denying that branch of the defendants' motion which was, in the alternative, to direct that this action be tried jointly with an action entitled North State Autobahn v Progressive Insurance Group, pending in the Supreme Court, Westchester County, under Index No. 02761/07. Inasmuch as the two actions did not involve common questions of law or fact (see CPLR 602[a]), a joint trial was not warranted (see Beerman v Morhaim, 17 AD3d 302, 303).
At the close of the plaintiff's case, which arises out of the defendants' repair of a motor vehicle owned by the plaintiff's insured, the defendants moved for judgment as a matter of law on the ground that the plaintiff had failed to establish a prima facie case (see CPLR 4401). The Supreme Court granted the motion on a ground not argued by the defendants, namely, that the plaintiff's payment of the full amount of the final bill for the repair of the vehicle without asserting that the payment was, in some manner, "under protest," barred the plaintiff's claims under the doctrine of accord and satisfaction (see Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 NY2d 590, 596; Uniform Commercial Code § 1-207). In granting the motion on that ground, the Supreme Court erred in two respects. First, accord and satisfaction is an affirmative defense which must be pleaded and proved (see CPLR 3018[b]; Conboy, McKay, Bachman & Kendall v Armstrong, 110 AD2d 1042; see also Arias-Paulino v Academy Bus Tours, Inc., 48 AD3d 350; Dec v Auburn Enlarged School Dist., 249 AD2d 907, 908). The defendants did not plead accord and satisfaction as an affirmative defense, and it was improper for the Supreme Court to raise it sua sponte (see Trustco BankN.Y. v Cohn, 215 AD2d 840, 841; cf. Rienzi v Rienzi, 23 AD3d 450). Second, the doctrine of accord and satisfaction is not applicable because it contemplates full knowledge of the facts on the part of both parties who, in effect, enter into a new contract to expeditiously settle a contract dispute (see Horn Waterproofing Corp v Bushwick Iron & Steel Co., 66 NY2d 321, 325). In this action, inter alia, to recover damages for fraud, the gravamen of the plaintiff's claim is that it was without such knowledge because of the defendants' alleged misrepresentation of material facts. Thus, a new trial is warranted.
We note that, upon retrial, the plaintiff should not be limited to damages in the sum of $2,808.65, the amount of the allegedly fraudulent charges contained in the final bill of the defendant North State Autobahn, Inc., d/b/a North State Custom Auto, but rather to the amount sought in the complaint.
The parties' remaining contentions are without merit.
FISHER, J.P., FLORIO, BELEN and AUSTIN, JJ., concur.
Rangoli, Inc., et al., v Tower Ins. Co.

Scott Baron & Associates, P.C., Howard Beach, N.Y. (W.
Bradford Bernadt of counsel), for appellant.
Mound Cotton Wollan & Greengrass, New York, N.Y. (Kevin
F. Buckley and Steven A. Torrini of
counsel), for respondent.

DECISION & ORDER
In an action, inter alia, for a judgment declaring that the defendant is obligated to provide coverage pursuant to an insurance policy for certain losses allegedly sustained by the plaintiff G & S Laundry Plus, Inc., the plaintiff G & S Laundry Plus, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered March 2, 2009, as granted that branch of the defendant's motion which was for summary judgment.
ORDERED that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Westchester County, for the entry of a judgment, inter alia, declaring that the defendant is not obligated to provide coverage to the plaintiff G & S Laundry Plus, Inc., for the claimed losses to its property.
The defendant met its initial burden of establishing its entitlement to judgment as a matter of law by demonstrating that the plaintiff failed to provide prompt notice of its claim for property damage under the insurance policy (see Donovan v Empire Ins. Group, 49 AD3d 589, 591; Duratech Indus., Inc. v Continental Ins. Co., 21 AD3d 342; Prudential Prop. & Cas. Ins. v Persaud, 256 AD2d 502), and, in any event, that the plaintiff G & S Laundry Plus, Inc. (hereinafter the appellant), failed to sustain its burden of proving that the loss occurred during the policy period (see Catucci v Greenwich Ins. Co., 37 AD3d 513, 515; Duratech Indus., Inc. v Continental Ins. Co., 21 AD3d at 344-345; see generally Gongolewski v Travelers Ins. Co., 252 AD2d 569). In opposition, the appellant failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562). Accordingly, the Supreme Court properly awarded summary judgment to the defendant.
Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Westchester County, for the entry of a judgment, inter alia, declaring that the defendant is not obligated to provide coverage to the plaintiff G & S Laundry Plus, Inc., for claimed losses to its property (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901). [*2]
The appellant's remaining contentions are either improperly raised for the first time on appeal, or without merit.
RIVERA, J.P., DICKERSON, CHAMBERS and HALL, JJ., concur.
Lordae Realty Corporation v United States Fire Ins. Co.


White Fleischner & Fino, LLP, New York, N.Y. (Benjamin A.
Fleischner, Nancy Davis, and Jonathan S. Chernow of counsel),
for appellant.
Shamberg Marwell Davis & Hollis, P.C., Mount Kisco,
N.Y. (P. Daniel Hollis III and Carrie
E. Hilpert of counsel), for
respondents.

DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract and for a judgment declaring that the defendant is obligated to provide coverage pursuant to an insurance policy for certain losses allegedly sustained by the plaintiffs, the defendant appeals from an order of the Supreme Court, Westchester County (Bellantoni, J.), entered January 27, 2009, which denied its motion for summary judgment.
ORDERED that the order is reversed, on the law, with costs, the defendant's motion for summary judgment is granted, and the matter is remitted to the Supreme Court, Westchester County, for the entry of a judgment, inter alia, declaring that the defendant is not obligated to provide coverage to the plaintiffs for the claimed losses to their properties.
The Supreme Court erred in denying the defendant's motion for summary judgment. The defendant met its initial burden of establishing its entitlement to judgment as a matter of law by demonstrating that the "earth movement" exclusion in the insurance policy clearly and unambiguously applied to the plaintiffs' losses (see I & R Realty Mgt., Inc. v Transcontinental Ins. Co., 59 AD3d 598; Labate v Liberty Mut. Ins. Co., 45 AD3d 811, 812; Cali v Merrimack Mut. Fire Ins. Co., 43 AD3d 415, 417). In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562). Accordingly, the Supreme Court erred in denying the defendant's motion.
Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Westchester County, for the entry of a judgment, inter alia, declaring that the defendant is not obligated to provide coverage to the plaintiffs for the claimed losses to their properties (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).
In light of our determination, the defendant's remaining contentions have been rendered academic.
RIVERA, J.P., DICKERSON, CHAMBERS and HALL, JJ., concur.
HAGGERTY v BRADY et al..


Calendar Date: January 12, 2010
Before: Peters, J.P., Rose, Lahtinen, Malone Jr. and Kavanagh, JJ.

Basch & Keegan, L.L.P., Kingston (Derek J. Spada of
counsel), for appellants.
Hanson & Fishbein, Albany (Paul G. Hanson of
counsel), for respondents.
MEMORANDUM AND ORDER

Lahtinen, J.
Appeal from an order of the Supreme Court (Connolly, J.), entered March 9, 2009 in Ulster County, which, among other things, granted defendants' motion to compel arbitration between the parties.
Plaintiffs commenced an action seeking damages for personal injuries allegedly sustained in a motor vehicle accident. Defendants moved for summary judgment and, while the motion was pending, the parties agreed to submit the case to binding arbitration. They stipulated to a high/low of $50,000/$2,500. Plaintiffs later refused to proceed with the arbitration contending that they had been misled to believe that defendants had $50,000 in coverage when, in fact, they had $100,000. Defendants moved to compel arbitration and plaintiffs cross-moved to stay arbitration. Supreme Court granted defendants' motion and denied plaintiffs' cross motion. Plaintiffs appeal.
We affirm. To establish, as plaintiffs contend, that the arbitration agreement resulted from fraud, plaintiffs "must show by clear and convincing evidence that [defendants] made a representation of fact which is either untrue and known to be untrue or recklessly made, and which is offered to deceive the other party and induce them to act upon it, causing injury" (Matter of Ball [SFX Broadcasting], 236 AD2d 158, 161 [1997], appeal dismissed 91 NY2d 921 [1998], lv denied 92 NY2d 803 [1998]). Here, plaintiffs' counsel stated that a claims adjuster from defendants' insurer represented to him, while negotiating the terms of arbitration, that there was $50,000 in coverage. The adjuster who was handling the claim disputes that such a representation ever occurred. However, it is undisputed that, as part of discovery, defendants had supplied plaintiffs — about a year before the arbitration negotiations — with the details of their insurance coverage, including that they had $100,000/$300,00 coverage. Since a written document setting forth the correct coverage information had been previously supplied to plaintiffs, the alleged oral misstatement by the adjuster (whether accidental or intentional) does not provide a ground for setting aside the arbitration agreement (cf. Lewin Chevrolet-Geo-Oldsmobile v Bender, 225 AD2d 916, 918 [1996]).
Peters, J.P., Rose, Malone Jr. and Kavanagh, JJ., concur.
ORDERED that the order is affirmed, with costs.
Perez v. Vasquez


Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for appellants.
Jay S. Hausman & Associates, P.C., Hartsdale (Elizabeth M.
Pendzick of counsel), for respondent.
Order, Supreme Court, New York County (Paul Wooten, J.), entered October 29, 2009, which denied defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to dismiss the 90/180 claim, and otherwise affirmed, without costs.
Defendants satisfied their initial burden on summary judgment by establishing, prima facie, with the submission of medical reports from their experts, that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d). Defendants also established, prima facie, that plaintiff had no 90/180 claim by submitting excerpts of plaintiff's deposition testimony indicating that, during the 180 days immediately following the accident, he was confined to home and bed for only three weeks (see Guadalupe v Blondie Limo, Inc., 43 AD3d 669, 670 [2007]).
In opposition, plaintiff raised a triable issue of fact as to whether he suffered a significant or permanent consequential limitation of use his right knee. In the near aftermath of the accident, plaintiff commenced receiving physical therapy three to four times a week on his right knee and was prescribed a brace for support. Three months after the accident, Dr. McMahon found that plaintiff's knee was unstable and causing him pain. Dr. McMahon explained that his findings were consistent with the MRI findings of a torn meniscus. Based on the forgoing, Dr. McMahon performed arthroscopic surgery on plaintiff's right knee, during which he saw the tear of the medial meniscus and determined that it was irreparable. In his most recent examination of plaintiff, he found a 15 degree limitation in the range of motion of plaintiff's right knee. Dr. McMahon gave a sufficient qualitative assessment of the limitation in plaintiff's right knee by explaining that the surgery permanently altered the load distribution of the knee, lessening its ability to sustain the load of walking, running or other daily activities (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]).
Plaintiff, however, failed to raise a triable issue of fact as to his 90/180 claim. Plaintiff's subjective claims of pain are insufficient to raise a triable issue of fact (see Guadalupe, 43 AD3d at 670), and the record is devoid of any evidence showing that plaintiff was prevented from performing substantially all of the material acts constituting his usual and customary daily activities (see Gibbs v Hee Hong, 63 AD3d 559, 560 [2009]).
Any injury in the nature of a permanent scar was not identified in the bill of particulars and need not be addressed by this Court (see Lopez v Abdul-Wahab, 67 AD3d 598, 599 [2009]). In any event, there is no medical evidence as to the severity of the scars or any photographs for this Court to evaluate (see Aguilar v Hicks, 9 AD3d 318, 319 [2004]).
Plaintiff adequately explained the gap in treatment by asserting in his affidavit that he stopped receiving treatment for his injuries in April 2007 when his no-fault insurance benefits were cut off, and that he did not have private health insurance at that time (see Wadford v Gruz, 35 AD3d 258, 259 [2006]).