Dear Coverage Pointers Subscribers:

We await summer’s arrival.  Am I too selfish in wanting a week of 80 degree days without Noah and his ark sailing through the neighborhood?  I can even begin to estimate cubits, from 50 yards.

This week’s issue reflects the summer slowdown in the appellate courts in New York.  The Court of Appeals is on break until the Labor Day, although we occasionally see a mid-summer decision or two.  The four appellate departments are traditionally quiet, with only a smattering of decisions, particularly in the two upstate Departments.

The Breadth of Additional Insured Coverage
Let me take a moment to reflect on the hottest area in New York liability coverage chatter, and that is the width, breadth and reach of additional insured coverage.  We would say, without hesitation that in the last three to six months, there hasn’t been a single topic that generates more phone calls and requests for coverage opinions.

There is no question that time and economic considerations have reduced the value of the “additional insured” endorsements: CG 20 10 and CG 20 33.  From the generous, beloved and often-requested-and-less-often-provided CG 20 10 11 85 version, which provided AI coverage for completed operations, to the ever-popular CG 20 10 10 01 endorsement that limited coverage to ongoing operations to the substantially less generous protection offered by the CG 20 10 07 04 endorsement which looks to the acts or omissions of the named insured as a trigger for coverage for the AI, the policy protection is shrinking.

In New York, there is rarely a day that goes by when we don’t get questions about BP Air Conditioning and Worth Construction, the two key Court of Appeals cases that serve, so far, as the anchor points for any attempt to understand just what the courts are saying about the obligations under AI endorsements.

And to demonstrate that the confusion is not limited to the insurance claims professionals and coverage attorneys, take a look at what may be the next great Court of Appeals case that attempts to instruct on the issue, the Regal Construction case, a Bastille Day offering from the First Department and reported in this issue.  You will see a panel splitting 3-2, as they struggle – unsuccessfully – to reach consensus.  With two dissenting votes, there’s an automatic right for the dissent to have the case reviewed by the Court of Appeals.  Watch this space.

Summer Travel

On Saturday, I travel to the Homestead in Virginia for the Annual Meeting of the FDCC, Federation of Defense & Corporate Counsel.  It’s easy to find me, and feel free to do so, if we can be of assistance:

Mobile phone:  716.445.2258
Via Blackberry: [email protected]
Office Voice Mail (sent automatically to the Blackberry): 716.849-8942

FDCC 2020 Insurance Symposium:  September 10-11, 2009
New York City
In about six weeks, the Federation of Defense & Corporate Counsel will be presenting a two day symposium in New York City addressing the financial, legal, political and social issues that will shape the future in which insurers and their outside counsel will operate.  The "2020" program, which is being presented at the New York Athletic Club on September 10-11, is a unique opportunity for insurance lawyers and senior claims executives to gather together and brainstorm about things that are going to shape our personal and professional lives in the not so distant future.  It should be an outstanding program.  Click here for a brochure.  “Click here” didn’t work.

Steve Peiper’s Ponderings:

Let us all rejoice, at long last, a first party coverage decision.  Our first opportunity to comment in weeks brings us the curious case where there is no coverage for damage to a swimming pool when the damage was caused by, of all things, water.   Sorry folks, one is all you get this week. 

However, in an effort to be more than passing side note, we have also reviewed several recent Labor Law cases.  Although we try to avoid making this a Labor Law update, this week's issue became an impromptu basic primer on the nuances of the Labor Law.  Take a look at recent appellate division rulings on what constitutes a safety device, an owner, and an elevated hazard.  In addition, there is also commentary on the work vs. maintenance dispute, and what constitutes a "falling object."

Steve
[email protected]

Insurance Problems – A Century Ago:

Cedar Rapids Evening Gazette
July 24, 1909
Page 1, Column 4
WOULDS’T FLY? TAKE OWN RISK

Insurance Company Bars "Habitual
Aviators" From Insurance

New York, July 24—"Habitual aviators," by a letter of instruction issued to the agents of the Travelers' Insurance Company of Hartford, Conn., must join ranks of automobile racers, sand hogs, and others whom the insurance companies decline to accept as risks.

It is believed that the action of the Travelers' Company will soon be followed by other insurance companies

"Concerning those who take one balloon trip, with no expectation of repeating the experience, we will not require waiver for that trip, but if another one or more are to be made, the waiver must be executed or the policy canceled."

Editor’s Note:  For those who aren’t familiar with the term “sand hogs,” those were the tunnel diggers, the excavators, the “urban miners” who helped create our great cities: http://www.sandhogproject.com/sandhogs/index.html

From Audrey Seeley, in the Land of No Fault

I received a lot of response to announcement of the NBI pure no-fault seminar in Buffalo and Syracuse this November.  Please note that I have been advised by NBI that group discounts will be offered.  The group does not have to be big either.  You only need three people to get the discount.  If you are interested in the seminar and what the group discounts are, please email me for more information.

Also, some of you may be aware of the looming requirements imposed by the Medicare Secondary Payer Act.  This will apply to liability and self insurance, no-fault insurance (including MedPay), and workers' compensation insurance.  If you have any questions or need any assistance in compliance please do not hesitate to contact us.

Audrey
[email protected]

One Hundred Years Ago Today

Syracuse Herald
July 24, 1909
Page 1

PAROLED TILL TUESDAY.
Gertrude Hoffman Was Arrested at
Police Commissioner's Direction.

NEW YORK —Gertrude Hoffman was arraigned in police court today and paroled until next Tuesday when the court will take up the question of whether her performance in a local theater is “indecent, suggestive and immoral and offensive to public decency.” The court directed that during the interval, Miss Hoffman must not be molested.

The dancer was arrested last night .after the performance. Her case rests upon whether tights are proper if they end at the knee, where the police officer who made the arrest declared Miss Hoffman’s conclude.  The fact developed today that the arrest of Miss Hoffman resulted by orders issued by Police Commissioner Baker. The commissioner said that he had directed the arrest after he had witnessed Miss Hoffman's performance last night.
Editor’s Note:  The New York Times reported on October 6 that the charges were dropped after it was revealed that Ms. Hoffman had stopped doing the provocative dance routine. Gertrude Hoffman achieved fame by being the one of the first dancers to perform the Salome Dance (“Dance of the Seven Veils.)” She later developed into one of the first women choreographers and later did work as an impersonator. She is not to be confused with a different Gertrude Hoffman who was a co-star of Gale Storm in the TV series, My Little Margie.

Earl’s Pearls:

This week, Earl Cantwell writes about another developing trend, suing professional experts for malpractice.  It’s surely worth reading. 

In this Week’s Issue:

KOHANE’S COVERAGE CORNER

Dan D. Kohane
[email protected]fine.com

  • First Department “Tees Up” Next Court of Appeals Decision on Breadth of “Additional Insured” Clause.  The Ongoing Battle of Yin and Yang, BP Air Conditioning and Worth Construction, Continues
  • As a Matter of Law, Excuse Offered for Late Notice by Employer -- That It Only Thought a Workers Compensation Claim Would Be Filed -- Is Insufficient

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

Margo M. Lagueras
[email protected]

  • Contemporaneous Findings of Significant Limitations Are Required to Support Serious Injury Claim
  • Defendants’ Use of IME from Workers Compensation Claim to Show Pre-Existing Injury Sustained at Work Is Insufficient to Rebut a Claim of Exacerbation Under No-Fault

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

Arbitration

  • Macho, Macho Man – I Want to Be a Macho Man – Hey – It’s a Reasonable Excuse

Litigation

  • Standing Issue Precluded for Failure to Demand Verification.
  • Conclusory Affidavit Insufficient to Rebut Insurer’s Demonstrated Lack of Medical Necessity

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper
[email protected]

Property…

  • Water Damage Exclusion Bars Coverage for Pool and Patio

and Potpourri

  • Balcony Is Not an Enumerated Safety Device under the Labor Law, But Liability Still Exits Anyway
  • Question of Fact Regarding Work v. Maintenance Precludes Summary Judgment
  • Falling Pipe NOT Considered a Falling Object under the Labor Law
  • No Ownership, No Liability under Labor Law § 241(6)
  • Fall While Wearing Stilts Is Not Considered an Elevation Hazard under the Labor Law

Come visit our interactive New York Insurance group on LinkedIn if you have the opportunity to engage in insurance social networking.

Wishing you good health and good weather.

 

Dan

 

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

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

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

NO-FAULT/UM/SUM TEAM
Audrey A. Seeley, Team Leader

[email protected]
Tasha Dandridge-Richburg
Margo M. Lagueras

APPELLATE TEAM
Jody E. Briandi, Team Leader

[email protected]
Scott M. Duquin

Index to Special Columns

Kohane’s Coverage Corner
Margo’s Musings on “Serious Injury”
 Audrey’s Angles on No Fault
Peiper on Property and Potpourri
Earl’s Pearls
Across Borders

KOHANE’S COVERAGE CORNER

Dan D. Kohane
[email protected]

7/14/09            Regal Construction Corporation v. National Union Fire Insurance Company
Appellate Division, First Department
First Department “Tees Up” Next Court of Appeals Decision on Breadth of “Additional Insured” Clause.  The Ongoing
Battle of Yin and Yang, BP Air Conditioning and Worth Construction, Continues
The City of New York hired URS as a construction manager for the Rikers Island Renovation Project.  URS hired Regal as prime contractor.  INSCORP issue a GGL policy to Regal.

As prime contractor, Regal engaged subcontractors and coordinated the subcontractors’ work.  Under Regal’s supervision, Regal was supervising the demolition of a bathing area when Ronald LeClair, Regal’s project manager, was injured.  He claimed that an employee of URS was negligent.  When LeClair sued the City and URS, URS demanded defense as an additional insured under the INSCORP policy.  INSCORP eventually accepted URS's tender.
The issue in this declaratory judgment action appeal is whether INSCORP has an obligation to defend and indemnify URS.  INSCORP's policy provided for additional insured coverage "only with respect to liability arising out of [Regal's] ongoing operations performed for that [additional] insured."
Hence, there was a causal connection between LeClair's injury and Regal's work as a prime contractor, the risk for which coverage was provided.
Two dissenting judges disagreed.  They observed that INSCORP alleges that discovery in the underlying action "has shown that the liabilities alleged therein do not arise out of Regal's operations performed for URS at the jobsite."   Discussing BP Air Conditioning, the seminal case on the subject, (8 NY3rd 708), the dissent acknowledged that under the Court of Appeals holding in that case, it isn’t necessary to prove the negligence of the named insured, when ascertaining whether additional insured status is awarded. However, there ought to be SOME allegations that the named insured, in this case Regal, committed some conduct that led to the accident.
The dissent compared this case to the decision in Worth Constr. Co., Inc. v Admiral Ins. Co. (10 NY3d 411 [2008]). Here, according to the dissent, the accident arises solely out of URS’ operations, not Regal’s operations.  
Editor’s Note:  A 3-2 vote is a free pass to the Court of Appeals.

7/10/09            Sevenson Environmental Services, Inc. v.  Sirius America Insurance Co.
Appellate Division, Fourth Department
As a Matter of Law, Excuse Offered for Late Notice by Employer -- That It Only Thought a Workers Compensation Claim Would Be Filed -- Is Insufficient

Sevenson sought a declaration that defendant Sirius had to defend and indemnify it in the underlying personal injury action.  Thomas Johnson, Inc. (TJI) sought a declaration that it was also entitled to defense and indemnity.  
TJI was required to notify Sirius of any accident or occurrence "which may result in a claim" as soon as practicable.  Here, TJI's employee, the plaintiff in the underlying action, was injured in a construction accident on October 6, 2003.  TJI learned of the injury within days after the accident but failed to notify Sirius of the accident until December 31, 2004.  The excuse of TJI for that delay of nearly 15 months, i.e., that it believed that its employee intended to assert only a workers' compensation claim, is unreasonable as a matter of law.
Sirius disclaimed upon completion of its investigation, 24 days after receiving TJI's notice of the claim, and provided sufficient information to make clear the reasons for disclaimer.  A lack of prejudice on the part of the insured is of no moment.  The law that existed at the time of the policy being issued did not consider prejudice in evaluating late notice cases.
Sirius further established that documents ordered produced by the lower court, that constituted communications between its counsel and representative of its agent, UTC, may in fact fall within the attorney-client privilege.

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

Margo M. Lagueras
[email protected]

7/21/09            Barnett v. Smith
Appellate Division, Second Department
Contemporaneous Findings of Significant Limitations Are Required to Support Serious Injury Claim
First, the Appellate Court ruled that the trial court erred in granting the plaintiff’s motion for leave to renew and reargue because the plaintiff did not offer any justification for not presenting a medical report that was available at the time of trial, and because the defendants met their prima facie burdens showing that the plaintiff did not sustain a serious injury.

The reports submitted by the plaintiff failed to raise a triable issue of fact.  Although it was noted that the plaintiff’s cervical spine’s range-of motion was “restricted,” no qualitative or quantitative findings were presented.  As regards the plaintiff’s left shoulder, the range-of-motion findings were not compared to what is normal.  In addition, the plaintiff’s submissions failed because even if the recent report revealed significant limitations in the shoulder range-of-motion, no objective medical evidence of such limitations was proffered that was contemporaneous with the accident.  The same failure to submit contemporaneous evidence undid the plaintiff’s 90/180-day claim as well.

7/10/09            Schreiber v. Krehbiel
Appellate Division, Fourth Department
Defendants’ Use of IME from Workers Compensation Claim to Show Pre-Existing Injury Sustained at Work Is Insufficient to Rebut a Claim of Exacerbation under No-Fault
Plaintiff husband was a passenger in a vehicle operated by his wife and driven into a ditch in an effort to avoid a head-on collision with the vehicle driven by the defendant.  The court agreed with the defendants that the plaintiff husband did not sustain a total loss of use as required under the permanent loss of use category.  However, the defendants did not meet their initial burden in establishing that the husband’s injuries were pre-existing or, if they were, that they were not exacerbated by the accident.  The IME reports they submitted were conducted in a prior workers compensation claim and did not address the issue of exacerbation by the subject accident.  Nor did the defendants submit any other reports of examinations performed to determine the issue of exacerbation of the pre-existing condition.

As regards the plaintiff wife, the court affirmed the dismissal of her claims as she sustained only a slight limitation of use, not rising to the level required under the permanent consequential limitation of use or the significant limitation of use categories.  Nor did she raise an issue of fact in opposition to defendants showing that her activities were not “curtailed to a great extent” as required under the 90/180-day category.

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

Arbitration

7/20/09            Applicant v. Progressive Ins. Co.
Arbitrator Thomas J. McCorry (Erie County)
Insurer’s Timely and Proper Invocation of Exclusion Did Not Require It to Continue Issuing Denials
The eligible injured person (“EIP”) was involved in a December 10, 2004, motor vehicle accident after she was driving the wrong way on the Kensington Expressway near the airport.  The EIP’s explanation for operating her vehicle the wrong way was the road’s poor design and confusion due to construction.  The assigned arbitrator found that explanation credible but at the time of the accident the EIP had .09 level of intoxication.

The EIP argued that the insurer must prove that the EIP’s intoxication was the cause of the accident.  The assigned arbitrator indicated that the argument would have merit if the EIP were stopped at a red light and rear ended.  That was not the case here as the EIP turned into the wrong lane of traffic and alcohol was a factor.  Accordingly, the exclusion from coverage for intoxication was properly invoked.

A separate issue arose when the EIP argued that the insurer had an obligation to timely denied subsequent bills.  The assigned arbitrator, citing Chubb, determined that since the claim was excluded from the scope of the policy continuing denials were unnecessary.

7/20/09            Applicant v. GEICO Ins. Co.
Arbitrator Thomas J. McCorry (Erie County)
Macho, Macho Man – I Want to Be a Macho Man – Hey – It’s a Reasonable Excuse
The Applicant, eligible injured person (“EIP”), was involved in a May 4, 2007, motor vehicle accident, and reported the accident to his insurer four days later stating there were no injuries.  Then the EIP, in September 2007, on “perhaps a macho belief” decided the pain he began experiencing months after the accident just would not go away.  So, the EIP reported the injury to his insurer and sought no-fault benefits.  The insurer denied based upon late notice of claim.

The assigned arbitrator held that timely notice was provided as the regulation only requires notice of the accident and not that there are injuries within 30 days from the accident.

Litigation

7/9/09              Dr. Albert Davydov, DDS a/a/o Slikia Martinez v. Progressive Ins. Co.
Appellate Term, Second Department
Standing Issue Precluded for Failure to Demand Verification.
The insurer was precluded from arguing lack of standing as the assignment of benefits was invalid because it failed to seek verification on the issue.  Further, the insurer’s inability to cross-examine the dentist at trial was not improper.  The insurer failed to demonstrate that it issued timely denials therefore it was appropriate to curtail the examination of the dentist on medical necessity of the treatment.

7/9/09              Pan Chiropratic, P.C. a/a/o Jeanmarie Calixte v. Mercury Ins. Co.
Appellate Term, Second Department
Conclusory Affidavit Insufficient to Rebut Insurer’s Demonstrated Lack of Medical Necessity
The insurer’s cross-motion for summary judgment should have been granted.  The plaintiff demonstrated its prima facie case.  Likewise, the insurer demonstrated lack of medical necessity by including the sworn peer review report together with additional medical records and reports from the assignor’s various treating physicians that the peer reviewer relied upon in his report.  The plaintiff failed to raise a triable issue of fact precluding summary judgment in favor of the insurer.  The plaintiff submitted a conclusory affidavit and did not “meaningfully refer to, or discuss, the determination of the defendant’s doctor.”

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper
[email protected]

Property

7/21/09            Jahier v. Liberty Mutual Insurance Company
Appellate Division, Second Department
Water Damage Exclusion Bars Coverage for Pool and Patio
In this case, plaintiff’s patio, in-ground pool, and certain plumbing connected to the pool sustained damage as a result of increased pressure from ground water.  In the days prior to the damage, plaintiff’s pool was drained so that unrelated maintenance could be performed on it.  At the same time, the area experienced excessive rainfall which caused an influx of ground water.  The increased water volume also increased pressure, and resulted in the pool and patio being “lifted up” out of the ground. 

Because the homeowners’ policy at issue explicitly removed coverage for property damage arising from underground water, “including water which exerts pressure on…a…swimming pool,” the Second Department ruled that plaintiff’s claim was precluded by the unambiguous terms of the policy.

and Potpourri

7/23/09            Yost v. Quartararo
Appellate Division, Third Department
Balcony Is Not an Enumerated Safety Device under the Labor Law, but Liability Still Exits Anyway
In this case, plaintiff was injured while in course of affixing a tarp to a roof where he was working.  The plaintiff was accessing the tarp by standing against, and leaning out over, a balcony.  When the balcony broke, plaintiff fell approximately 10 feet and sustained injury as a result.

Initially, the Third Department ruled that plaintiff’s use of the balcony did not create liability under Labor Law § 240(1).  This is because the balcony did not qualify as an enumerated safety device under the statute.  However, the Court ruled that because the work was at a different elevation, an enumerated device was required to assist plaintiff in accessing his work.  Because plaintiff was working at an elevated work site, without an adequate safety device, the Third Department ruled that plaintiff had met his burden for summary judgment.

07/21/09          Weisman v Duane Reade, Inc.
Appellate Division, Second Department
Question of Fact Regarding Work v. Maintenance Precludes Summary Judgment
Plaintiff fell from a beam to reach an HVAC unit while in the process of responding to a “no heat” call.  Plaintiff argues he was called to perform work on the HVAC unit, and that he fell from a height while in the process of performing that job duty.  In contrast, defendant maintains that plaintiff was responding to a maintenance call and that he was not actively engaged in “work” at the time he sustained injury.  Importantly, plaintiff’s employer had a maintenance contract with Duane Reade at the time of the incident involving plaintiff. 

The Court found a question of fact existed as to how to characterize plaintiff’s job duties at the premises.  As such, the dispute rages on.

07/14/09          Novak v. Del Savio
Appellate Division, Second Department
Falling Pipe NOT Considered a Falling Object under the Labor Law
Plaintiff sustained injury when a pipe that he had wedged above his head fell, and struck him in the face.  Importantly, the pipe was not in the process of being hoisted or secured, as required by the statute.  Further, the Court also noted that pipe did not need to be affixed to the ceiling in order to be installed.  As such, the Second Department ruled that the claim did not fall within the limited scope of risks that the statute was meant to protect against. 

07/10/09          Scaparo v. Village of Ilion
Appellate Division, Fourth Department
No Ownership, No Liability under Labor Law § 241(6)
In this matter, plaintiffs were in the process of installing a new sewer line across a parcel of land owned by the Herkimer County IDA, so that a newly build church could be connected to the public sewer system.  During the installation process, the trench where the line was to placed collapsed causing injury to the plaintiffs. 

The IDA moved for summary judgment arguing that it was not an “owner” as that term is used under Labor Law § 241(6).  Although the IDA was technically the owner of the parcel, the Court noted that for liability to be imposed upon an owner that does not contract for the work “some nexus must exist between the purported owner and the injury party.  Where, like here, the owner did not have nexus to the project which was arranged between the plaintiffs’ employer and the adjacent church, liability could not be found.

Likewise, the Church moved for summary judgment also arguing that it was not an “owner” of the parcel where the incident occurred.  Although the Church certainly had an interest in the project, it was not an owner of the premises where injury occurred.  In turn, there was no liability attributable to the Church under the Labor Law.

07/10/09          McNabb v. Oot Bros, Inc.
Appellate Division, Fourth Department
Fall While Wearing Stilts Is Not Considered an Elevation Hazard under the Labor Law
Plaintiff was wearing stilts while in the process of installing drywall at a home being built by Bryan and Jacqueline Place.  Plaintiff was injured when he fell over an electrical cord while still wearing the stilts.  Plaintiff’s action alleged causes of action under Labor Law §§ 240(1), 241(6), and 200 (as well as common law negligence)

The defendant Oot Bros., Inc was retained by the Place’s as a consultant for the design and construction of the new build.

Oot Bros, Inc. and the Place’s moved for summary judgment dismissing plaintiff’s Labor Law §240 (1) on the basis that it was not caused by an elevation related hazard.  Further, the Labor Law §241 (6) claim was dismissed where the Industrial Code Section that was allegedly violated  (12 NYCRR § 23-1.5) has been held to be not sufficiently specific.  Finally, the Labor Law § 200/Common Law Negligence claims were dismissed where plaintiff could not establish that either party directed or controlled the manor in which he performed his job duties.  This was the case even though the contract at issue gave the Place’s the right to direct or control plaintiff’s work.

EARL’S PEARLS
Earl K. Cantwell, II
[email protected]

Immunity for Professional Experts

An interesting professional liability scenario is presented when an expert such as an appraiser, accountant, assessor, surveyor, doctor or psychiatrist is selected by the court to provide expert assistance in a contested or litigated matter.  Obviously, in such situations, one side may win and another side may lose, and the losing party may not only decide to appeal any decision, but also file some type of malpractice claim against the expert.  The Minnesota Supreme Court recently held that an accountant who was appointed by the court to serve as an expert witness in valuing property of parties in a divorce was immune from a suit or claim for malpractice.  Peterka v. Dennis, 2009 WL 1228506 (Minnesota, May 7, 2009). 

The accountant agreed to serve as a “neutral evaluator” on the condition that he be appointed by the court to value the marital property, which included two home-building companies.  The court signed an order of appointment, the accountant valued the property and business entities, and testified at a hearing during the divorce proceeding.  Based upon the accountant’s valuation of the businesses, the court awarded the wife 50% of the value.  Although the wife never appealed the award, several years later she sued the accountant for malpractice.  She alleged that he erred in valuing the businesses based on inventory book value as opposed to fair market value.  As a result, the plaintiff contended that her marital share was undervalued by some $750,000. 

The trial court granted summary judgment in favor of the accountant, holding that he was protected by quasi-judicial immunity.  That decision was reversed by an intermediate appellate court, but the Minnesota Supreme Court reversed the reversal, reinstated the trial court ruling, and cloaked the accountant with quasi-judicial immunity.  The Minnesota Supreme Court held that court expert witnesses who are properly appointed under statutes or court rules are immune from suit for acts performed pursuant to their appointment, i.e. in their “official capacity”. 

It was important that this accountant was not only jointly retained by the parties, but was actually appointed pursuant to or at least within the authority of a court rule, and an actual order of appointment was signed and entered.  The court noted that, although the accountant was selected by the parties, he was nonetheless appointed under a court order to review and opine as a “neutral evaluator” of the couple’s assets. 

The court held that such experts are immune from suit, which is supported by public policy considerations of protecting experts from harassing litigation and allowing them to exercise independent, discretionary judgment in assisting and reporting to the court.  The court further noted that this was consistent with immunity having similarly been given to other experts such as assessors, arbitrators, public defenders and guardians ad litem.  The court noted that, in general, judicial immunity has been extended to officials who exercise their discretionary judgment while acting in quasi-judicial capacities, which encompasses expert witnesses appointed to “assist” or serve at the direction of the court.

Similar issues were considered in the case of Arthur Andersen & Co. v. Wilson, 353 S.E.2d 466 (Georgia 1987), where the accounting firm was hired by a court-appointed special auditor to determine the proper value of stock involved in a dispute under a buy-sell agreement.  One of the parties sued the accounting firm, which defended on the basis of judicial immunity.  The court in Arthur Andersen held that the accounting firm was not protected by judicial immunity because the special auditor, and not the accounting firm, actually possessed the legal title and responsibility for making the official report to the trial court.

Lessons to be learned from these cases for accountants, appraisers, surveyors, attorneys, doctors and other professionals appointed as guardians, etc. are as follows:

  1. Make sure that the professional is formally and officially appointed to assist and act for the court as opposed, for example, to merely being retained by the parties;
  2. Make sure the appointment is confirmed and set forth in a court order or other approved stipulation filed of record so that the appointment can be said to be “official” and part of the court record; and
  3. Phrase the order or reference in terms of being appointed as a neutral evaluator, mediator or otherwise assisting the court as an expert, and not being retained to represent any one party or to appear or testify for any party.  Try to have the appointment framed in terms of being appointed by the court to serve for and report to the court as a neutral evaluator or special assistant in order to have the best chance to invoke judicial (or quasi-judicial) immunity in the event a disappointed litigant decides to sue.


ACROSS BORDERS

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

7/16/09            Lloyds Underwriters v. Netterstrom
Florida First District Court of Appeals
Court Holds that Insurer Entitled to Arbitrate Coverage Dispute
In an insurance coverage dispute between an insured, Mar-K Towing, Inc., on the one hand, and insurer Lloyds of London and its agent Osprey Underwriting, on the other hand, Mar-K filed a complaint against Lloyds and Osprey arising out of their denial of Mar-K’s tender of defense. Lloyds and Osprey filed a motion to compel arbitration under the provisions of the insurance policy. The trial court denied the motion on two grounds. First, it concluded that the arbitration clause in the policy could not be enforced because it was in conflict with the policy’s service of suit clause, which required the insurer to submit to the jurisdiction of a competent court in the United States. Second, the court concluded that Florida law prohibited the arbitration of insurance coverage disputes and that the Florida law on this point takes precedence over contrary, but more general, provisions of the Federal Arbitration Act. Lloyds and Osprey appealed, and the appellate court reversed, holding that Lloyds and Osprey were entitled to arbitrate the dispute under the insurance policy in London. The appellate court first reasoned that the arbitration and service of suit clauses served different purposes and did not conflict with each other. The arbitration clause provided a method of resolving disputes, while the service of suit clause merely provided a method of obtaining a judgment against the insurer in the United States. Moreover, the arbitration clause contained a sentence stating that, in the event of a conflict, the arbitration clause should take precedence over conflicting provisions. The court also found that Florida’s prohibition of insurance coverage disputes did not take precedence over the Federal Arbitration Act in this case. It reasoned that state laws regulating the business of insurance have a preemptive effect only as to insurance contracts within the United States, and not to international insurance contracts such as the one in the instant matter.
Submitted by: Bruce D. Celebrezze and Nicholas J. Boos (Sedgwick, Detert, Moran & Arnold LLP)

7/15/09            Sunshine State Insurance Company v. Davide
Florida Third District Court of Appeals
First Party Insured Not Entitled to Pre-Judgment Interest From Date Property Damaged, but From Date Payment Due Under Policy
Arthur Davide’s home was damaged by Hurricanes Katrina and Wilma in 2005. Approximately three months after the latter hurricane, Davide’s homeowner’s insurer, Sunshine State Insurance Company, made an initial payment on Davide’s claim relating to damage sustained in the hurricanes. After a dispute arose between Sunshine and Davide as to whether Sunshine was obligated under its policy to pay the actual cash value or the roof on Davide’s home or replacement cost for the roof, the parties submitted the issue to appraisal as authorized by the policy. An appraisal award was subsequently issued on an actual cash value basis, but it was unclear whether the award took depreciation into account, or whether it authorized Sunshine to take such deduction from the award. While Sunshine waited for clarification from the appraisal umpire, and within the sixty days allotted by the policy to pay an appraisal award, Sunshine paid the award less an amount it attributed to depreciation. Three months later, after the sixty day period to pay an appraisal award, the umpire clarified that the award already took depreciation into account. The amount previously withheld by Sunshine was subsequently paid to Davide, and Davide sought pre-judgment interest on that amount. The trial court awarded him such interest from the date Davide’s property was damaged. The appellate court reversed. Citing case law, it held that Davide was only entitled to pre-judgment interest from the date payment became due under the policy, which, in this case, was sixty days after the appraisal award was issued.
Submitted by: Bruce D. Celebrezze and Nicholas J. Boos (Sedgwick, Detert, Moran & Arnold LLP)

7/14/09            Gargano v. Liberty International Underwriters, Inc.
First Circuit Court of Appeals
First Circuit Finds No Coverage Under “Claims Made and Reported” Professional Liability Policies
Attorney Paul Gargano and his law firm (collectively, “Gargano”) obtained three separate professional liability insurance policies, covering three successive years, from, respectively, Liberty International Underwriters, Inc. (“Liberty”), Greenwich Insurance Company (“Greenwich”), and NCMIC Insurance Company (“NCMIC”). The policies covered the collective time period of September 1, 2004 through September 1, 2007, and each expressly provided “coverage only for claims that are both first made against the insured and reported to the insurance company during the term of the policy.” A lawsuit was filed against Gargano in March 2005, but he did not report it until 2007. Accordingly, NCMIC and Greenwich denied coverage because the claim was not reported during the term of coverage under their policies, and Liberty denied coverage because, although the claim was reported within its policy’s period, it was first made prior to that term of coverage. Gargano filed suit against the insurers for breach of contract and violations of Massachusetts General Laws Chapters 176D and 83A, and the district court granted the insurers’ motion to dismiss for failure to state a claim. The First Circuit affirmed. It reasoned that each policy was a “claims made and reported” policy, but that the claim was not both made and reported during the term of any of the policies. It also rejected Gargano’s contention that the insurers’ alleged failure to deliver their policies to him precluded the insurers from denying the claim. In this regard, the court noted that Gargano paid the premiums, Gargano admitted the formation of a contract, the terms of the policies did not set forth a delivery requirement, and, in any event, the policies were delivered to his insurance agent.
Submitted by: Bruce D. Celebrezze and Nicholas J. Boos (Sedgwick, Detert, Moran & Arnold LLP)

REPORTED DECISIONS

Sevenson Environmental Services, Inc. v.  Sirius America Insurance Co.


Appeal from a judgment (denominated order) of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), entered August 13, 2008 in a declaratory judgment action. The judgment, insofar as appealed from, granted in part the motion of defendant Thomas Johnson, Inc. For summary judgment and declared that defendant Sirius America Insurance Company, also known as Sirius Insurance Company, is obligated to defend and indemnify defendant Thomas Johnson, Inc. In an underlying action, denied the cross motion of defendant Sirius America Insurance Company, also known as Sirius Insurance Company, for summary judgment, and granted the cross motion of plaintiffs to compel defendant Sirius America Insurance Company, also known as Sirius Insurance Company, to provide complete responses to all outstanding discovery requests.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (TIMOTHY E. DELAHUNT OF COUNSEL), FOR DEFENDANT-APPELLANT.
PHILLIPS LYTLE LLP, BUFFALO (WILLIAM D. CHRIST OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
SLIWA & LANE, BUFFALO (KEVIN A. LANE OF COUNSEL), FOR DEFENDANT-RESPONDENT. It is hereby ORDERED that the judgment insofar as appealed from is unanimously reversed on the law without costs, the motion of defendant Thomas Johnson, Inc. is denied in its entirety and the declaration is vacated, the cross motion of defendant Sirius America Insurance Company, also known as Sirius Insurance Company, is granted and judgment is granted in its favor as follows: It is ADJUDGED and DECLARED that defendant Sirius America Insurance Company, also known as Sirius Insurance Company, is not obligated to defend or indemnify defendant Thomas Johnson, Inc. in the underlying action, and the matter is remitted to Supreme Court, Niagara County, for further proceedings in accordance with the following Memorandum: Plaintiffs, Sevenson Environmental Services, Inc. (Sevenson) and The Goodyear Tire and Rubber Company (Goodyear), commenced this action seeking, inter alia, a declaration that defendant Sirius America Insurance Company, also known as Sirius Insurance Company (Sirius), is obligated to defend and indemnify them in an underlying personal injury action. Defendant Thomas Johnson, Inc. (TJI) likewise cross-claimed for a declaration that Sirius is obligated to defend and indemnify it in the underlying action, and thereafter moved for that relief, as well as other relief. Sirius contends on appeal that Supreme Court erred in granting the motion of TJI insofar as it sought that declaration and denying the cross motion of Sirius for summary judgment declaring that it has no such obligation with respect to TJI. We agree, inasmuch as we conclude that Sirius established as a matter of law that it validly disclaimed coverage based on TJI's late notice of the accident.
Pursuant to the terms of its insurance policy with Sirius, TJI was required to notify Sirius of any accident or occurrence "which may result in a claim" as soon as practicable. Compliance with that requirement is a condition precedent to coverage (see Matter of Travelers Ins. Co. [Delosh], 249 AD2d 924) and, "[a]bsent a valid excuse, a failure to satisfy the notice requirement vitiates the policy" (Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 440). Here, TJI's employee, the plaintiff in the underlying action, was injured in a construction accident on October 6, 2003. TJI learned of the injury within days after the accident but failed to notify Sirius of the accident until December 31, 2004. The excuse of TJI for that delay of nearly 15 months, i.e., that it believed that its employee intended to assert only a workers' compensation claim, is unreasonable as a matter of law (see generally Delosh, 249 AD2d at 925).
We further conclude that Sirius provided TJI with timely written notice of its disclaimer, in accordance with Insurance Law § 3420 (d). Sirius issued its disclaimer letter upon completion of its investigation, 24 days after receiving TJI's notice of the claim (see Dryden Mut. Ins. Co. v Greaser, 269 AD2d 792, 793). Contrary to TJI's contention, the disclaimer letter was valid inasmuch as it " apprise[d] [TJI] with a high degree of specificity of the ground . . . on which the disclaimer [was] predicated' " (Utica Mut. Ins. Co. v Gath, 265 AD2d 805, 806). The court's determination that Sirius was not prejudiced by TJI's late notice of claim is of no moment. As the Court of Appeals wrote, "[w]e have long held, and recently reaffirmed, that an insurer that does not receive timely notice in accordance with a policy provision may disclaim coverage, whether it is prejudiced by the delay or not" (Briggs Ave. LLC v Insurance Corp. of Hannover, 11 NY3d 377, 382). We note that, in addressing the issue of prejudice, the court erred in relying on amendments to Insurance Law § 3420 that apply only to policies issued on or after January 17, 2009. The policy in question was issued before that effective date, and thus "[t]he common-law no-prejudice rule applies to this case" (id.).
Sirius further contends on appeal that the court erred in granting plaintiffs' motion to compel the disclosure of documents listed in its privilege log without first conducting an in camera review of those documents (see Baliva v State Farm Mut. Auto. Ins. Co., 275 AD2d 1030, 1031). We also agree with that contention. The broad discretion afforded trial courts in supervising discovery is not unlimited (see Hardy v Tops Mkts., Inc., 231 AD2d 879, 880), and here Sirius refused to disclose several documents based upon its contention that they included communications between its attorney and representatives of UTC Risk Management Services, Inc. (UTC), Sirius' third-party claims administrator. Thus, according to Sirius, the documents in question fall within the scope of the attorney-client privilege. As Sirius correctly contends, the attorney-client privilege extends to communications to "one serving as an agent of either attorney or client" (First Am. Commercial Bancorp, Inc. v Saatchi & Saatchi Rowland, Inc., 56 AD3d 1137, 1139 [internal quotation marks omitted]) and, contrary to plaintiff's contention, the record establishes that UTC acted as an agent of Sirius. Significantly, UTC, acting on behalf of Sirius, issued the disclaimer letter to TJI and also sent a similar letter to Goodyear. Moreover, there is no evidence that TJI, Goodyear, or Sevenson questioned UTC's authority to act on behalf of Sirius. The determination whether a particular document is shielded from disclosure by the attorney-client privilege "is necessarily a fact-specific determination . . ., most often requiring an in camera review" (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 378). We therefore remit the matter to Supreme Court to determine plaintiffs' motion following an in camera review of the documents in question.
Regal Construction Corporation v. National Union Fire Insurance Company


Melito & Adolfsen P.C., New York (Louis G. Adolfsen of counsel), for appellants.
Law Offices of Green & Lavelle, Brooklyn (Erika C. Aljens of counsel), for respondent.
Order, Supreme Court, New York County (Debra A. James, J.), entered April 4, 2008, which, inter alia, denied plaintiffs' motion for summary judgment, granted defendant National Union Fire Insurance Co.'s cross motion for summary judgment, and declared that plaintiff The Insurance Corporation of New York (INSCORP) is obligated to defend and indemnify defendant URS Corporation (URS) in the underlying personal injury action, affirmed, with costs.
The City of New York engaged URS as the construction manager for the Rikers Island Renovation Project. By written agreement dated March 22, 1999, URS hired plaintiff Regal Construction Corporation (Regal) to serve as the prime contractor for general construction and to perform construction services, including demolition and renovation, at the project. INSCORP issued to Regal a commercial general liability policy that provided additional insured coverage. This appeal involves the interpretation of the additional insured clause.
Regal's duties as prime contractor included the demolition and rebuilding of a modular building at Rikers Island. The task required Regal to engage subcontractors and oversee their work.
Ronald LeClair was Regal's project manager for the Rikers Island Renovation Project. His duties included the coordination of the subcontractors' work.
In March 2001, Regal was supervising the demolition of the building's bath and shower area as well as the replacement of flooring in the main area. On March 6, 2001, LeClair was walking through the facility with his superintendent and an employee of Regal's demolition subcontractor. As the area was under demolition, the flooring consisted of temporary sheets of plywood spread over steel floor joists. LeClair stepped from the plywood onto a joist in order to point to a wall that was to be demolished. Unbeknownst to LeClair, the joist had been freshly painted and its slipperiness caused him to fall and sustain injury. At a deposition, LeClair testified that he had heard that a URS employee painted the joist. 
In January 2003, LeClair brought the underlying action against the City and URS in the Supreme Court, Bronx County. By letter dated February 19, 2003, URS demanded a defense and indemnification by Regal and/or INSCORP and enclosed a copy of LeClair's verified complaint. URS based the demand on its claimed status as an additional insured under the policy issued by INSCORP to Regal. In April 2003, INSCORP responded to URS by letter indicating that the matter was being reviewed. By the same letter, INSCORP also reserved its right to disclaim coverage at a later date should it be determined that URS was not entitled to the benefits of the policy. Because its tender had not been accepted, URS brought a third-party action against Regal in February 2004. By another letter dated March 11, 2004, INSCORP did accept URS's tender, and URS's third-party action against Regal was discontinued.
Nevertheless, on April 9, 2007, Regal and INSCORP commenced this action against URS and its insurer, National Union, for a declaratory judgment. In denying plaintiffs' motion for summary judgment and granting defendants' cross motion for the same relief, Supreme Court declared that INSCORP is obligated to defend and indemnify URS in the LeClair action. As this appeal has been withdrawn with respect to plaintiffs' claims against URS, the pivotal issue, as framed by the complaint, is whether URS is an additional insured under Regal's policy with INSCORP.
INSCORP's policy provided for additional insured coverage "only with respect to liability arising out of [Regal's] ongoing operations performed for that [additional] insured." As explained by the Court of Appeals in Worth Constr. Co., Inc. v Admiral Ins. Co. (10 NY3d 411 [2008]), which involved a similarly worded additional insured provision, the phrase "arising out of" means "originating from, incident to, or having connection with" (id. at 415 [internal quotation marks omitted]). The policy in Worth was issued to Pacific Steel, Inc., a subcontractor that had been engaged for the fabrication and installation of a staircase consisting of steel pan stairs and hand railings. After Pacific installed the stairs but before it installed the hand railings, the job was temporarily turned over to a concrete subcontractor for the purpose of filling the pans. The plaintiff was injured when he slipped on fireproofing that had been applied to the stairs by a subcontractor other than Pacific. After noting that the focus of the clause "is not on the precise cause of the accident but the general nature of the operation in the course of which the injury was sustained" (id. [internal quotations marks omitted]), and that Pacific was not on the job site at the time of the accident and had nothing to do with the application of the fireproofing, the Court characterized the staircase installed by Pacific as "merely the situs of the accident," and ruled that there was no connection between the accident itself and Pacific's work, the risk for which coverage was intended (id. at 416).
The facts of the instant case are not analogous because Regal, the prime contractor at the Rikers Island project, had responsibilities that encompassed all of the demolition and construction work to be done. As such, Regal's tasks cannot be viewed in isolation as were those of Pacific, the staircase subcontractor in Worth. LeClair even testified that it would have been Regal's responsibility to paint the floor joists if instructed to do so by URS. Hence, there was a causal connection between LeClair's injury and Regal's work as a prime contractor, the risk for which coverage was provided. The dissent places unwarranted emphasis on the fact that the LeClair complaint does not set forth allegations of negligence on part of Regal. "Generally, the absence of negligence, by itself, is insufficient to establish that an accident did not arise out of' an insured's operations" (id.). "The focus of a clause such as the additional insured clause here is not on the precise cause of the accident but the general nature of the operation in the course of which the injury was sustained" (id. [internal quotation marks omitted]).
Accordingly, Supreme Court correctly found that INSCORP is obligated to defend and indemnify URS in the LeClair action. We reject, however, National Union's argument that INSCORP should be estopped from denying coverage because it accepted URS's defense without a reservation of rights and controlled that defense until its denial of coverage in 2007. On the contrary, as noted above, 11 months before accepting URS's defense INSCORP reserved its right to disclaim coverage at a later date.
All concur except Nardelli and McGuire, JJ. who dissent in a memorandum by McGuire, J.
as follows:
McGUIRE, J. (dissenting)
Ronald LeClair, the plaintiff in the underlying action, was injured during the course of his employment with plaintiff-appellant Regal Construction Corp., the primary general contractor for a construction project at Rikers Island. Specifically, he was injured when he slipped and fell on a steel floor joist during a "walk-through" of the job site during which he was pointing out required demolition work to Regal's demolition subcontractor. The joist had just been painted by defendant URS Corp., the construction manager, after it removed plywood covering. URS is an additional insured under the policy Regal obtained from plaintiff-appellant The Insurance Corporation of New York (INSCORP) "only with respect to liability arising out of [Regal's] ongoing operations performed for [URS]." LeClair's complaint in the underlying action alleges only that he was injured as a result of the negligence of URS and its codefendant, the City of New York, which engaged URS as the construction manager. The complaint is bereft of allegations that Regal was liable in any way for LeClair's fall or injuries. Of course, however, any such allegations would be pointless as LeClair did not and could not sue his employer to recover for the injuries he sustained as a result of the accident (see Workers' Compensation Law § 11).
URS tendered the defense and indemnification of the underlying action to INSCORP shortly after LeClair commenced the action. INSCORP, through its claims representative, responded that it was investigating URS' coverage request and stated that it "reserves its rights to disclaim coverage at a later date" if it determined that URS was not entitled as an additional insured to the benefits of the policy it had issued to Regal. Just over a year after the underlying action was commenced, counsel for URS advised INSCORP's claims representative that it had served Regal and INSCORP with a third-party complaint. One month later, by a letter dated March 11, 2004, INSCORP "agreed to accept [URS'] tender demand ... for coverage as an additional insured" under the Regal policy [FN1] . URS thereafter was represented in the underlying action by counsel selected by INSCORP.
In April 2007, however, Regal and INSCORP commenced this action against National Union and URS seeking, among other things, both a declaration that URS is not entitled to coverage under the Regal policy as an additional insured and to recover the defense costs INSCORP incurred in defending URS. In relevant part, Regal and INSCORP allege that discovery in the underlying action "has shown that the liabilities alleged therein do not arise out of Regal's operations performed for URS at the jobsite." Later that month, INSCORP's claim handler notified URS and its claim handler that it was withdrawing from the defense of the underlying action. After URS moved to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7), Regal and INSCORP cross-moved for summary judgment seeking a declaration that (i) URS was not an additional insured and thus was not entitled to a defense or indemnity in the underlying action, (ii) National Union afforded primary liability insurance coverage to URS, and (iii) INSCORP was entitled to reimbursement of defense costs from National Union and URS or, alternatively, National Union was a co-insurer with INSCORP of URS for the claims against URS in the underlying action. National Union also cross-moved for summary judgment seeking, among other things, a declaration that INSCORP was obligated to defend and indemnify URS in the underlying action on a primary basis, and a declaration that INSCORP was estopped from disclaiming coverage on the eve of trial of the underlying action.
Supreme Court denied Regal and INSCORP's cross motion for summary judgment and, in relevant part, granted National Union's cross motion for summary judgment and directed the entry of a judgment declaring that INSCORP is obligated to defend and indemnify URS in the underlying action [FN2] . Regal and INSCORP now appeal; pursuant to a stipulation, the appeal is taken against National Union only.
In BP A.C. Corp. v One Beacon Ins. Group (8 NY3d 708 [2007]), the Court of Appeals construed an additional insured endorsement identical to the one at issue in this appeal and rejected the contention that the liability of the named insured had to be determined before the additional insured was entitled to a defense. But it does not follow that the potential liability of the named insured is irrelevant. The complaint in BP's underlying action alleged that the named insured had breached its duty to keep the work site safe and that this breach caused the plaintiff's injuries. As the Court of Appeals stated, "[t]hese allegations form a factual [and] legal basis on which [the insurer] might eventually be held to be obligated to indemnify [the additional insured]" (8 NY3d at 715 [internal quotation marks omitted]). Here, by contrast, there are no remotely comparable allegations against Regal in the underlying action. If LeClair's complaint alleged only that he tripped and fell as a result of banana peels carelessly left on the joist by an employee of URS, it is hard to see how INSCORP could be required to provide URS with a defense and thereby confer a windfall on URS' own insurance carrier, defendant-respondent National Union Fire Insurance Co. LeClair's actual complaint, however, cannot be distinguished from that hypothetical complaint because it alleges only the negligence of URS and the City and does not allege any conduct by Regal on the basis of which Regal's liability to LeClair might be found.
In Worth Constr. Co., Inc. v Admiral Ins. Co. (10 NY3d 411 [2008]), the plaintiff in the underlying action slipped and fell on a staircase installed by Pacific Steel, Inc., a subcontractor and the named insured. The fall occurred, however, when the plaintiff, who was employed by another subcontractor, slipped and fell on fireproofing applied to the stairs by yet another subcontractor; Pacific played no role in contracting for or applying the fireproofing (10 NY3d at 414). When Worth, the general contractor and the putative additional insured, was sued by the plaintiff, it brought both a third-party action against Pacific seeking contribution and indemnification, and a declaratory judgment action against Pacific's insurer seeking defense and indemnification in the underlying action. Thereafter, however, Worth admitted that its claims of negligence against Pacific were without merit, thus negating "any significant connection between Pacific's work and the accident" (10 NY3d at 416). As the Court of Appeals stated, "by admitt[ing] that its claims of negligence against Pacific were without factual merit, [Worth] conceded that the staircase was merely the situs of the accident (id.).
In this case, the complaint in the underlying action makes no claim of negligence against Regal,[FN3] or any other theory of its liability, that could be negated. INSCORP does not contend, however, that URS is not entitled to coverage as an additional insured because of the absence of any allegations of negligence or other liability on the part of Regal. In my view, the distinct ground upon which it relies — that LeClair's injuries, and any resulting liability, arose out of URS' operations, not Regal's operations — requires the conclusion that URS is not entitled to coverage in the underlying action as an additional insured. As INSCORP argues, the Court of Appeals made clear in Worth that "[t]he focus of a clause such as the additional insured clause here is not on the precise cause of the accident but the general nature of the operation in the course of which the injury was sustained" (id. [internal quotation marks omitted; emphasis added]). The only relevant evidence submitted on the summary judgment motions established that LeClair fell on a freshly painted floor joist, and URS was responsible for removing the plywood covering and painting the joist. Accordingly, URS' liability arose out of its, not Regal's, operations. Just as the staircase in Worth was the "mere situs" of the accident, the "walk-through" of the job site by LeClair was the mere occasion of the accident. As in Worth, there is no "connection between [LeClair's] accident and the risk [i.e., Regal's work] for which coverage was intended" (id.).[FN4]
Given its conclusion that INSCORP was obligated to defend and indemnify URS without contribution from National Union, Supreme Court had no reason to resolve that branch of National Union's motion contending that INSCORP should be estopped from disclaiming coverage on the eve of the trial. I would deny that motion. The mere fact that INSCORP did not reserve a right to disclaim coverage in the March 11, 2004 letter is not dispositive (see Federated Dept. Stores, 28 AD3d at 36-37). More critically, National Union failed "to establish a key element of common-law estoppel: prejudice caused by [INSCORP's] allegedly belated disclaimer" (id. at 37). Indeed, in the affirmation National Union submitted in support of this branch of its motion, it offered only a conclusory assertion that URS had detrimentally relied on INSCORP's control over its defense, and claimed only that INSCORP's control over the defense "may estop INSCORP from abandoning URS Corporation on the eve of trial" (emphasis added).
For these reasons, I would modify the order of Supreme Court so as to declare that URS is not entitled to coverage in the underlying action as an additional insured under the INSCORP policy. As my position does not carry a majority, it would be pointless for me to address INSCORP's contentions that the order also should be modified to declare both that National Union is obligated to defend and indemnify URS in the underlying action and that INSCORP is entitled to reimbursement in the amount of the defense costs and indemnity payment it incurred on behalf of URS.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 14, 2009
CLERK
Footnotes

Footnote 1: The letter, sent by INSCORP's claims administrator, went on to state that "the Third Party Action against Regal ... will be discontinued."

Footnote 2: After oral argument, counsel for the parties advised the court that the underlying action had settled.

Footnote 3: The record does not include the third-party complaint brought against Regal by URS, but it appears that INSCORP agreed to provide a defense because of the allegations in that complaint. As Justice Sullivan has stated, "[t]he undocumented assertions contained in correspondence from a purported insured are sufficient to trigger the duty to defend" (Federated Dept. Stores Inc. v Twin City Fire Ins. Co., 28 AD3d 32, 37 [2006]).

Footnote 4: The majority asserts that I place "unwarranted emphasis on the fact that the LeClair complaint does not set forth allegations of negligence on the part of Regal." This assertion is puzzling, as I expressly acknowledge that INSCORP does not rely on the absence of any allegations of negligence or other liability on the part of Regal and I expressly state my position that INSCORP should prevail on "the distinct ground" upon which it relies.

Schreiber v. Krehbiel


Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered April 15, 2008 in a personal injury action. The order, insofar as appealed from, denied in part the motion of defendants for summary judgment.

LAW OFFICE OF EPSTEIN & HARTFORD, WILLIAMSVILLE (JENNIFER V. SCHIFFMACHER OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
MICHAEL J. COOPER, HAMBURG, FOR PLAINTIFFS-RESPONDENTS.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting that part of the motion for summary judgment dismissing the complaint insofar as the complaint, as amplified by the bill of particulars, alleges that plaintiff James M. Schreiber sustained a serious injury under the permanent loss of use of a body organ, member, function or system category of serious injury within the meaning of Insurance Law § 5102 (d) and dismissing the complaint to that extent with respect to that plaintiff, and by granting that part of the motion for summary judgment dismissing the complaint in its entirety with respect to plaintiff Shea M. Schreiber and dismissing the complaint in its entirety with respect to that plaintiff, and as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries they allegedly sustained in a motor vehicle accident. Plaintiff husband was a passenger in a motor vehicle operated by plaintiff wife, who drove the vehicle into a ditch while attempting to avoid a head-on collision with a motor vehicle operated by defendant Sadie L. Krehbiel. Defendants moved for summary judgment dismissing the complaint on the ground that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the accident. Supreme Court granted the motion in part by dismissing the complaint insofar as the complaint, as amplified by the bill of particulars, alleges that plaintiff wife sustained a serious injury under the permanent loss of use category. We agree with defendants that they also established as a matter of law that plaintiff husband did not sustain a serious injury under the permanent loss of use category, i.e., he did not sustain a "total loss of use" of a body organ, member, function or system (Oberly v Bangs Ambulance, 96 NY2d 295, 297), and we therefore modify the order accordingly. We further conclude, however, that the court properly denied the remainder of defendants' motion with respect to the remaining categories of serious injury allegedly sustained by plaintiff husband. Defendants failed to meet their initial burden of establishing that his "alleged injuries sustained in the accident were preexisting"(Clark v Perry, 21 AD3d 1373, 1374; see Ashquabe v McConnell, 46 AD3d 1419) or, if they were, that they were not exacerbated by the accident (see Endres v Shelba D. Johnson Trucking, Inc., 60 AD3d 1481; Cebularz v Diorio, 32 AD3d 975). In support of their motion, defendants submitted the reports prepared following independent medical examinations that concluded that the injuries to plaintiff husband's lower back, neck, and left shoulder were caused by an injury at work that occurred prior to the motor vehicle accident. The independent medical examinations, however, were conducted in the context of a previous worker's compensation claim concerning the injuries sustained by plaintiff husband at work. The examinations were not conducted to determine whether the alleged injuries of plaintiff husband were exacerbated by the accident at issue on this appeal, nor did defendants submit the results of an examination of plaintiff husband conducted at their request with respect to that issue (cf. Schader v Woyciesjes, 55 AD3d 1292, 1293). In any event, we conclude that plaintiffs raised a triable issue of fact with respect to causation concerning the alleged injuries sustained by plaintiff husband (see Yoonessi v Givens, 39 AD3d 1164, 1165).
The court erred in denying the remainder of defendants' motion with respect to the remaining categories of serious injury allegedly sustained by plaintiff wife, and thus the court should have granted that part of defendants' motion for summary judgment dismissing the complaint in its entirety with respect to plaintiff wife. We agree with defendants that they met their burden by establishing as a matter of law that there was no objective evidence that plaintiff wife sustained a serious injury (see Constantine v Serafin, 16 AD3d 1145, 1145-1146; see generally Toure v Avis Rent A Car Sys., 98 NY2d 345, 350; Caldwell v Malone, 2 AD3d 1378, 1379). In any event, defendants established that plaintiff wife sustained only a slight limitation of use and therefore did not sustain a serious injury under thepermanent consequential limitation of use or significant limitation of use categories of serious injury (see generally Gaddy v Eyler, 79 NY2d 955, 957; Lutgen v Czapla, 1 AD3d 1036). Finally, defendants established that the activities of plaintiff wife "were not curtailed to a great extent" and that she therefore did not sustain a serious injury under the 90/180 category of serious injury (Burns v McCabe, 17 AD3d 1111, 1111; see Licari v Elliott, 57 NY2d 230, 236). Plaintiffs failed to raise a triable issue of fact in opposition to that part of defendants' motion (see generally Alvarez v Prospect Hosp., 68 NY2d
320, 324). We therefore further modify the order accordingly.

Jahier  v. Liberty Mutual Group


Feldman, Rudy, Kirby & Farquharson, P.C., Westbury, N.Y.
(Bruce W. Farquharson of counsel), for appellants.
Kalb & Rosenfeld, P.C., Commack, N.Y. (John A. Meringolo
of counsel), for respondents.

DECISION & ORDER
In an action to recover damages for breach of contract and for a judgment declaring that the defendants are obligated to provide coverage for certain damage to the plaintiffs' property pursuant to a homeowners insurance policy issued by them to the plaintiffs, the defendants appeal from an order of the Supreme Court, Suffolk County (Jones, J.), entered October 15, 2008, which denied their motion for summary judgment dismissing the first cause of action alleging breach of contract and declaring that they were not so obligated, and granted the plaintiffs' cross motion for summary judgment on the issue of liability on the first cause of action alleging breach of contract and declaring that the defendants are obligated to provide coverage under the subject homeowners insurance policy for the loss sustained by the plaintiffs.
ORDERED that the order is reversed, on the law, with costs, the plaintiffs' cross motion for summary judgment on the issue of liability on the first cause of action alleging breach of contract and declaring that the defendants are obligated to provide coverage for certain damage to the plaintiffs' property pursuant to a homeowners insurance policy issued to them is denied, the defendants' motion for summary judgment dismissing the first cause of action alleging breach of contract and declaring that they are not so obligated is granted, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment, inter alia, declaring that the defendants are not obligated to provide coverage pursuant to the homeowners insurance policy issued by them to the plaintiffs, for the loss sustained by the plaintiffs.
The defendants, Liberty Mutual Group and The First Liberty Insurance Corporation (hereinafter together Liberty), issued a Deluxe Homeowners Insurance Policy (hereinafter the policy) insuring, inter alia, the plaintiffs' residence and other structures located on their property. In April 2007, during the coverage period, the plaintiffs' in-ground swimming pool, the surrounding patio area, and the plumbing which serviced the pool sustained damage when the pool lifted up several inches out of the ground. At the time of the loss, the pool was not filled with water, as it had been drained by a contractor hired by the plaintiffs to perform maintenance work. During the time that the pool was empty, and shortly before the plaintiffs discovered the damage, heavy rains had fallen in the area. The plaintiffs made a claim pursuant to the policy, but Liberty disclaimed coverage based upon clauses in the policy which excluded losses due to "Earth Movement" and "Water Damage."
In July 2007 the plaintiffs commenced this action against Liberty, alleging breach of contract, and for a judgment declaring that Liberty was obligated to provide coverage under the policy for the claimed loss. The Supreme Court denied Liberty's motion for summary judgment dismissing the breach of contract cause of action and declaring that it was not so obligated and granted the plaintiffs' cross motion on the issue of liability on the breach of contract cause of action and declaring that Liberty was so obligated. We reverse.
"[C]ourts bear the responsibility of determining the rights or obligations of parties under insurance contracts based on the specific language of the policies" (State of New York v Home Indem. Co., 66 NY2d 669, 671; see Cali v Merrimack Mut. Fire Ins. Co., 43 AD3d 415, 416). An exclusion from coverage "must be specific and clear in order to be enforced" (Essex Ins. Co. v Pingley, 41 AD3d 774, 776, quoting Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311; see Lee v State Farm Fire & Cas. Co., 32 AD3d 902, 903). An ambiguity in an exclusionary clause must be construed most strongly against the insurer (see Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390, 398; Breed v Insurance Co. of N. Am., 46 NY2d 351, 353). However, "the plain meaning of the policy's language may not be disregarded to find an ambiguity where none exists" (Atlantic Balloon & Novelty Corp. v American Motorists Ins. Co., 62 AD3d 920, 922; see Cali v Merrimack Mut. Fire Ins. Co., 43 AD3d at 417). Where an insurer denies coverage based upon an exclusion, the burden is on the insurer to demonstrate that the exclusion applies in the particular case and that it is "subject to no other reasonable interpretation" (Seaboard Sur. Co. v Gillette Co., 64 NY2d at 311).
In this case, the Supreme Court erred in denying Liberty's motion for summary judgment and in granting the plaintiffs' cross motion for summary judgment. Liberty met its initial burden of establishing its entitlement to judgment as a matter of law by demonstrating that the "water damage" exclusion clearly and unambiguously applied to the plaintiffs' loss (see Reynolds v Standard Fire Ins. Co., 221 AD2d 616; Hipper v CNA Ins. Co., 2002 NY Slip Op 40109[U] [App Tm 9th & 10th Dists 2002]; see generally Cali v Merrimack Mut. Fire Ins. Co., 43 AD3d at 417; Sheehan v State Farm Fire & Cas. Co., 239 AD2d 486, 487; Kula v State Farm Fire & Cas. Co., 212 AD2d 16, 20). The plain language of the exclusion relieves Liberty from loss caused "directly or indirectly" by "[w]ater damage, meaning . . . [w]ater below the surface of the ground, including water which exerts pressure on . . . a building . . . swimming pool or other structure." Furthermore, losses due to "water damage" are excluded "regardless of any other cause or event contributing concurrently or in any sequence to the loss." Here, the evidence demonstrated that the plaintiffs' loss was attributable to the subsurface water pressure that was exerted upon the empty swimming pool, even though it was precipitated by the drainage of the pool and heavy rainfall (see Cali v Merrimack Mut. Fire Ins. Co., 43 AD3d at 417-418; Sheehan v State Farm Fire & Cas. Co., 239 AD2d at 487; Reynolds v Standard Fire Ins. Co., 221 AD2d 616, 616-617; Kula v State Farm Fire & Cas. Co., 212 AD2d at 20-21; Hipper v CNA Ins. Co., 2002 NY Slip Op 40109[U] [App Tm 9th & 10th Dists 2002]; South Carolina Farm Bureau Mut. Ins. Co. v Durham, 380 SC 506, 671 SE2d 610). In opposition to Liberty's motion and in support of its cross motion for summary judgment, the plaintiffs failed to raise a triable issue of fact or establish their prima facie entitlement to judgment as a matter of law, respectively, so as to preclude the award of summary judgment to Liberty (see Zuckerman v City of New York, 49 NY2d 557, 562).
Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Suffolk County, for the entry of a judgment, inter alia, declaring that Liberty is not obligated to provide coverage for the loss sustained by the plaintiffs pursuant to the homeowners insurance policy issued by it (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).
The plaintiffs' remaining contentions either are without merit or have been rendered academic by our determination.
RIVERA, J.P., SKELOS, BALKIN and LEVENTHAL, JJ., concur.

Yost v. Quartararo

Calendar Date: May 28, 2009
Before: Cardona, P.J., Mercure, Lahtinen, Malone Jr. and Stein, JJ.

Law Office of Michael Emminger, Albany (Murry S.
Brower of counsel), for appellants.
Fauci & Kupperman, P.L.L.C., Ballston Spa (James
A. Fauci of counsel), for respondent.
MEMORANDUM AND ORDER
Mercure, J.
Appeal from an order of the Supreme Court (Williams, J.), entered June 6, 2008 in Saratoga County, which, among other things, granted plaintiff's motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1).
In 2006, defendant Peter Quartararo hired plaintiff to, among other things, replace the roof of a motel. As part of that work, plaintiff was required to secure a tarp covering the roof, which he accomplished while standing on the second-floor balcony of the motel. When the balcony railing that plaintiff was leaning against broke, he fell approximately 10 feet to the parking lot pavement below and sustained injuries to his spine.
Plaintiff thereafter commenced this action, asserting negligence and violations of Labor Law §§ 200, 240 (1) and § 241 (6). Following joinder of issue, plaintiff moved for summary judgment on his Labor Law § 240 (1) claim and defendants cross-moved for summary judgment dismissing the complaint. Supreme Court granted plaintiff's motion and partially granted defendants' cross motion insofar as it sought to dismiss certain grounds for plaintiff's Labor Law § 241 (6) claim. Defendants appeal and we affirm.[FN1]
It is well settled that Labor Law § 240 (1) implicates those hazards that are "related to the effects of gravity where protective devices are called for . . . because of a difference between the elevation level of the required work and a lower level" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]; see Auchampaugh v Syracuse Univ., 57 AD3d 1291, 1292 [2008]). Here, we reject plaintiff's claim that liability under Labor Law § 240 (1) must be imposed because the balcony functioned as a de facto scaffold or the equivalent of a safety device. Rather, as defendants argue, plaintiff's mere use of the balcony to reach the roof is insufficient to impose liability under Labor Law § 240 (1) because a permanent appurtenance to a building does not normally constitute the functional equivalent of a scaffold or other safety device within the meaning of the statute (see Milanese v Kellerman, 41 AD3d 1058, 1060-1061 [2007]; Caruana v Lexington Vil. Condominiums at Bay Shore, 23 AD3d 509, 510 [2005]; D'Egidio v Frontier Ins. Co., 270 AD2d 763, 765 [2000], lv denied 95 NY2d 765 [2000]; Avelino v 26 Railroad Ave., 252 AD2d 912, 913 [1998]; Williams v City of Albany, 245 AD2d 916, 917 [1997], appeal dismissed 91 NY2d 957 [1998]; compare Beard v State of New York, 25 AD3d 989, 991 [2006]; Craft v Clark Trading Corp., 257 AD2d 886, 887-888 [1999]).
Nevertheless, we conclude that plaintiff demonstrated that he was exposed to "the exceptionally dangerous conditions posed by elevation differentials at work sites" which Labor Law § 240 (1) was designed to address (Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491 [1995]; see Avelino v 26 Railroad Ave., 252 AD2d at 913). That is, plaintiff established that "the required work itself [was] performed at an elevation, i.e., at the upper elevation differential, such that one of the devices enumerated in the statute" would have allowed plaintiff to safely secure the tarp (D'Egidio v Frontier Ins. Co., 270 AD2d at 765). Specifically, the record reveals that plaintiff was required to lean against and over the balcony railing to reach the tarp, with nothing but that railing to protect him from falling into the open space beyond and to the parking lot below. Thus, while the balcony itself cannot be deemed a de facto safety device, it did, in fact, constitute an elevated work site. Given that no safety device was provided to protect plaintiff from the risk of falling over or through the balcony railing, we agree with Supreme Court that plaintiff was entitled to summary judgment on his Labor Law § 240 (1) claim (see Felker v Corning Inc., 90 NY2d 219, 224 [1997]; Kaminski v One, 51 AD3d 473, 474 [2008]; Oliveira v Dormitory Auth. of State of N.Y., 292 AD2d 224, 224 [2002]; Barnaby v A. & C. Props., 188 AD2d 958, 959-960 [1992]).
Finally, "[i]nasmuch as defendants are liable to plaintiff under Labor Law § 240 (1) for the only damages that plaintiff can recover, defendants' arguments concerning the validity of the other theories of liability contained in the complaint are academic" (Covey v Iroquois Gas Transmission Sys., 218 AD2d 197, 201 [1996], affd 89 NY2d 952 [1997]; see Squires v Marini Bldrs., 293 AD2d 808, 809 [2002], lv denied 99 NY2d 502 [2002]). 
Cardona, P.J., Lahtinen, Malone Jr. and Stein, JJ., concur.
ORDERED that the order is affirmed, with costs.
Footnotes

Footnote 1: Defendants' notice of appeal was expressly limited to that portion of Supreme Court's order dealing with plaintiff's Labor Law § 240 (1) and § 241 (6) claims. Therefore, their arguments regarding plaintiff's negligence and Labor Law § 200 claims are not properly before us (see Brodeur v Hayes, 18 AD3d 979, 981-982 [2005], lv dismissed and denied 5 NY3d 871 [2005]).

Weisman v. Duane Reade, Inc.


Chesney & Murphy, LLP, Baldwin, N.Y. (Michael F. Palmeri of
counsel), for appellant.
Boris Zivotov, P.C., Brooklyn, N.Y., for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant Duane Reade, Inc., appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated February 27, 2008, as denied, without prejudice to renewal, those branches of its motion which were for summary judgment dismissing the causes of action asserted against it pursuant to Labor Law §§ 240 and 241(6) in their entirety, and (2) from an order of the same court dated July 21, 2008, which granted that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability on his cause of action pursuant to Labor Law § 240(1), and denied its renewed motion for summary judgment dismissing the causes of action asserted against it pursuant to Labor Law §§ 240 and 241(6) in their entirety.
ORDERED that the appeal from the order dated February 27, 2008, is dismissed, without costs or disbursements, as that order was superseded by the order dated July 21, 2008, made upon renewal; and it is further,
ORDERED that the order dated July 21, 2008, is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability on his cause of action pursuant to Labor Law § 240(1) and substituting therefor a provision denying that branch of the cross motion; as so modified, the order dated July 21, 2008, is affirmed, without costs or disbursements.
The plaintiff allegedly was injured when, in the course of his employment as a mechanic for heating, ventilation, and air conditioning (hereinafter HVAC) units, he fell from a beam he had been standing on in order to reach an inoperable HVAC unit located on the roof of a store leased and occupied by the defendant Duane Reade, Inc. (hereinafter the appellant). A maintenance agreement existed between the appellant and the plaintiff's employer, pursuant to which the plaintiff had worked on the subject unit on previous occasions. On the day in question, the plaintiff was dispatched to the store to respond to a "no-heat" call.
The appellant moved for summary judgment dismissing, inter alia, the causes of action asserted against it pursuant to Labor Law §§ 240 and 241(6) in their entirety. The Supreme Court denied those branches of the motion, with leave to renew. Following further discovery, the appellant renewed those branches of its motion, arguing that the work performed by the plaintiff at the time of the accident constituted "routine maintenance" rather than repairs and, as such, he was not performing a covered activity at the time of the accident. In response, the plaintiff cross-moved for summary judgment on the issue of liability on his Labor Law §§ 240 and 241(6) causes of action. In an order dated July 21, 2008, the Supreme Court granted that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability pursuant to Labor Law § 240(1), concluding that the plaintiff was engaged in a covered activity, and denied the appellant's renewed motion. We modify the order dated July 21, 2008.
The proof submitted by both the appellant and the plaintiff, including the two affidavits by the principal of the plaintiff's employer on the date of the accident, revealed the existence of a triable issue of fact as to whether the work at issue should properly be characterized as "routine maintenance" (see Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528; Gleason v Gottlieb, 35 AD3d 355, 356; Anderson v Olympia & York Tower B Co., 14 AD3d 520, 521; Jani v City of New York, 284 AD2d 304; Jehle v Adams Hotel Assoc., 264 AD2d 354) or a repair (see Beehner v Eckerd Corp. 3 NY3d 751; Pratt v Port Auth. of N.Y. and N.J., 100 NY2d 878; Juchniewicz v Merex Food Corp., 46 AD3d 623; Craft v Clark Trading Corp., 257 AD2d 886). Accordingly, the court should not have granted that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability under Labor Law § 240(1), but properly denied those branches of the appellant's renewed motion which were for summary judgment dismissing the causes of action asserted against it pursuant to Labor Law §§ 240 and 241(6) in their entirety.
In light of this determination, we need not reach the parties' remaining contentions.
SPOLZINO, J.P., DILLON, FLORIO and BELEN, JJ., concur.
Scaparo v. Village of Ilion


Appeal and cross appeal from an amended order of the Supreme Court, Herkimer County (Michael E. Daley, J.), entered February 15, 2008 in personal injury actions. The amended order granted the motion of defendant Herkimer County Industrial Development Agency seeking summary judgment, denied the motion of defendant Our Lady Queen of Apostles Church of St. Mary of Mount Carmel/S.S. Peter and Paul seeking summary judgment, and denied the cross motion of plaintiffs seeking partial summary judgment.

BRINDISI, MURAD, BRINDISI, PEARLMAN, JULIAN & PERTZ, LLP, UTICA (ANTHONY J. BRINDISI OF COUNSEL), FOR PLAINTIFFS-APPELLANTS- RESPONDENTS.
LAW OFFICE OF JOHN A. PANZONE, P.C., BARNEVELD (JOHN A. PANZONE OF COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT.
ROCHE, CORRIGAN, MCCOY & BUSH, PLLC, ALBANY (ROBERT P. ROCHE OF COUNSEL), FOR DEFENDANT-RESPONDENT.

It is hereby ORDERED that the amended order so appealed from is modified on the law [*2]by granting the motion of defendant Our Lady Queen of Apostles Church of St. Mary of Mount Carmel/S.S. Peter and Paul and dismissing the amended complaints in action Nos. 1 and 2 against that defendant and as modified the amended order is affirmed without costs.
Memorandum: The plaintiffs in action Nos. 1 and 2 commenced these Labor Law and common-law negligence actions seeking damages for injuries sustained by Charles Scaparo, a plaintiff in action No. 1, and Anthony Yero, a plaintiff in action No. 2 (collectively, plaintiff workers), when the trench in which they were installing a sewer lateral collapsed. At the time of the accident, plaintiff workers were employees of the Village of Frankfort (Village) and were installing the sewer lateral from the newly constructed cemetery chapel owned by Our Lady Queen of Apostles Church of St. Mary of Mount Carmel/S.S. Peter and Paul (Church), a defendant in both actions, to the sewer main at a street intersection in the Village. The sewer lateral was installed on property that was owned by Herkimer County Industrial Development Agency (HCIDA), another defendant in both actions. The property owned by HCIDA was adjacent to the Church property and was within the 60-foot utility right-of-way that the Village had over the HCIDA property. In these consolidated appeals, the plaintiffs in both actions contend that Supreme Court erred in granting the motion of HCIDA seeking summary judgment dismissing the amended complaints against it, and the Church contends on its cross appeal that the court erred in denying its motion seeking summary judgment dismissing theamended complaints against it. Although we conclude that the court properly granted the motion of HCIDA, we further conclude that the court erred in denying the motion of the Church, and we therefore modify the amended order accordingly.
Addressing first the motion of HCIDA, we note at the outset that plaintiffs' contention that HCIDA failed to follow the best evidence rule to establish that the Village had a right-of-way over its property is raised for the first time on appeal and is therefore not properly before us (see Ciesinski v Town of Aurora, 202 AD2d 984, 985). We reject plaintiffs' further contention that HCIDA is an owner within the meaning of Labor Law § 241 (6). In cases imposing liability on an owner that does not contract for the work, there is "some nexus between the owner and the worker, whether by[, inter alia,] a . . . grant of an easement, or other property interest" (Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 51). Here, HCIDA established that it did not grant the Village an easement or other property interest and that plaintiff workers were on HCIDA's premises by reason of the arrangement between the Church and the Village to install the sewer lateral (cf. Kerr v Rochester Gas & Elec. Corp., 113 AD2d 412, 416). Plaintiffs failed to raise an issue of fact sufficient to defeat the motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562).
Addressing next the motion of the Church, we note that the Church established that it was required to pay for the cost of the materials and that the Village supplied the labor and retained ownership of the sewer lateral. The court determined that the Church was an owner for purposes of Labor Law § 241 (6) because it contracted for and benefitted from the installation of the sewer lateral and that there was a triable issue of fact whether the Church was in a position to control the work and to insist that proper safety practices were followed for the purposes of Labor Law § 200. That was error.
It is well established that, for purposes of the Labor Law, the term "owner" is not limited to the titleholder (see generally Walp v ACTS Testing Labs, Inc./Div. of Bur. Veritas, 28 AD3d 1104; Reisch v Amadori Constr. Co., 273 AD2d 855, 856). "The term [owner] has been held to encompass a person who has an interest in the property and who fulfilled the role of owner by contracting to have the work performed for his benefit" (Copertino v Ward, 100 AD2d 565, 566). Here, the work was performed for the benefit of the Church, but the Church did not have an interest in the HCIDA property. As we explained in Sweeting v Board of Coop. Educ. Servs. (83 AD2d 103, 114, lv denied 56 NY2d 503), "[t]he owners' contemplated by the Legislature are those parties with a property interest who hire the general contractor to undertake the construction work on their behalf." The dissent relies on Copertino, in which the homeowner contracted to replace the sewer line that ran from his home to the main pipe in the street, and the plaintiff worker was injured in a portion of the trench located in the street. The Second Department concluded in Copertino that the homeowner was liable pursuant to the Labor Law not only because he had contracted for the sewer line to be installed on his property but also because as "the abutting property owner [he] has an easement running through and under the street for his sewer connection" (id. at 567). "An easement is an interest in land created by grant or agreement, express or implied, which confers a right upon the holder thereof to some . . . lawful use out of or over the estate of another" (id.). Here, however, the Church had no property interest in the HCIDA property over which the sewer line was placed, and thus it cannot be considered an owner for purposes of Labor Law § 240 (1) or § 241 (6) (see generally Fisher v Coghlan, 8 AD3d 974, 975-976, lv dismissed 3 NY3d 702).
All concur except Green and Gorski, JJ., who dissent in part and vote to affirm in the following Memorandum: We respectfully dissent in part, and would affirm. We agree with the majority that Supreme Court properly granted the motion of Herkimer County Industrial Development Agency, a defendant in both actions, seeking summary judgment dismissing the amended complaints against it. Contrary to the majority, however, we conclude that the court also properly denied the motion of Our Lady Queen of Apostles Church of St. Mary of Mount Carmel/S.S. Peter and Paul, another defendant in both actions (Church), seeking summary judgment dismissing the amended complaints against it. Although it is undisputed that the Church did not hold title to the property where the accident occurred, "the meaning of owners' under section 241 (6) of the Labor Law . . . has not been limited to the titleholder[, and t]he term has been held to encompass a [party] who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for [its] benefit" (Copertino v Ward, 100 AD2d 565, 566; see Reisch v Amadori Constr. Co., 273 AD2d 855, 856). The Church's own submissions raise triable issues of fact whether the Church may be considered an owner for purposes of Labor Law § 241 (6) liability. The Church contracted for and benefitted from the installation of the sewer lateral in question. In addition, the Church's architect designed the sewer lateral and directed the Village of Frankfort (Village) to install it within a specific time frame. Further, although the sewer lateral was installed within the utility right-of-way of the Village, the Church could have had the work performed by any licensed contractor; it was not necessary that the Village perform the work. Under those circumstances, we conclude at a minimum that there is a triable issue of fact whether the Church had an interest in the property where the accident occurred and fulfilled the role of owner (see Copertino, 100 AD2d at 566-567). We further conclude that the Church failed to meet its initial burden of establishing, for purposes of Labor Law § 200 liability, that it neither exercised supervisory control over the work nor had actual or constructive notice of the unsafe shoring that allegedly caused the accident (see Higgins v 1790 Broadway Assoc., 261 AD2d 223, 225). Finally, although in view of its decision the majority was not required to reach the issue whether the court properly denied plaintiffs' cross motion seeking partial summary judgment on liability under Labor Law §§ 200 and 241 (6), we conclude that the court properly denied plaintiffs' cross motion.
Novak v. Del Savio


Jones Hirsch Connors & Bull P.C., New York, N.Y. (William R.
Pirk, Jr., of counsel), for defendants-appellants.
Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T.
Fitzpatrick of counsel), for third-party
defendant-appellant.
Kagan & Gertel, Brooklyn, N.Y. (Irving Gertel of counsel), for
plaintiffs-respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendants Raymond L. Del Savio and 304 W. 115, LLC, appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), entered June 27, 2008, as denied that branch of the motion of the defendant 304 W. 115, LLC, which was for summary judgment dismissing the cause of action to recover damages for violation of Labor Law § 240(1) insofar as asserted against it, and granted the plaintiffs' cross motion for summary judgment on the issue of liability on the cause of action to recover damages for violation of Labor Law § 240(1) insofar as asserted against them, and (2) the third-party defendant, Delco Electrical Corp., separately appeals, as limited by its brief, from so much of the same order as denied that branch of its separate cross motion which was, in effect, for summary judgment dismissing the cause of action to recover damages for violation of Labor Law § 240(1) insofar as asserted against the defendant third-party plaintiff, Hudson Meridian Construction Group, LLC, and granted the plaintiffs' cross motion for summary judgment on the issue of liability on the cause of action to recover damages for violation of Labor Law § 240(1) insofar as asserted against the defendant third-party plaintiff.
ORDERED that the appeal by the defendant Raymond L. Del Savio from so much of the order as denied that branch of the motion of the defendant 304 W. 115, LLC, which was for summary judgment dismissing the cause of action to recover damages for violation of Labor Law § 240(1) insofar as asserted against it is dismissed, as he is not aggrieved by that portion of the order (see CPLR 5511); and it is further,
ORDERED that the order is reversed, on the law, the plaintiffs' cross motion for summary judgment on the issue of liability on the cause of action to recover damages for violation of Labor Law § 240(1) is denied, that branch of the motion of the defendant 304 W. 115, LLC, which was for summary judgment dismissing the cause of action to recover damages for violation of Labor Law § 240(1) insofar as asserted against it is granted, and so much of the order as denied that branch of the cross motion of the third-party defendant which was, in effect, for summary judgment dismissing the cause of action to recover damages for violation of Labor Law § 240(1) insofar as asserted against the defendant third-party plaintiff is granted; and it is further,
ORDERED that one bill of costs is awarded to the appellants appearing separately and filing separate briefs.
The injured plaintiff, Michael Novak, was employed as an electrician by the third-party defendant, Delco Electrical Corp. On the date of the accident, the injured plaintiff was assigned to run galvanized pipe along the ceiling of the basement floor of a building which was under construction. As the injured plaintiff was standing on a ladder and preparing to install a pipe, which he had wedged at a height slightly above his head, the pipe came loose and fell, striking him on the side of his face.
The injured plaintiff and his wife, suing derivatively, subsequently commenced this action against the building owner, the defendant 304 W. 115 LLC (hereinafter the owner), and its manager, Raymond L. Del Savio, alleging, inter alia, violation of Labor Law § 240(1). Also named as a defendant was the defendant third-party plaintiff, Hudson Meridian Construction Group, LLC (hereinafter Hudson), the general contractor on the construction project. After depositions had been conducted, the owner moved for summary judgment dismissing the complaint insofar as asserted against it, and the third-party defendant cross-moved, inter alia, in effect, for summary judgment dismissing the complaint insofar as asserted against Hudson. The plaintiffs cross-moved for summary judgment on the issue of liability on the cause of action to recover damages for violation of Labor Law § 240(1). The Supreme Court denied that branch of the owner's motion which was for summary judgment dismissing the Labor Law § 240(1) cause of action insofar as asserted against it, denied that branch of the third-party defendant's cross motion which was, inter alia, in effect, for summary judgment dismissing the Labor Law § 240(1) cause of action insofar as asserted against Hudson, and granted the plaintiffs' cross motion on the issue of liability on the Labor Law § 240(1) cause of action. We disagree with the Supreme Court.
Labor Law § 240(1) requires owners and contractors to provide workers with appropriate safety devices to protect against "such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501). However, not every object that falls on a worker gives rise to the extraordinary protections of Labor Law § 240(1) (see Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267). Thus, in order to recover damages for violation of the statute, the "plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that, at the time the object fell, it was "being hoisted or secured" (Narducci v Manhasset Bay Assoc., 96 NY2d at 268) or "required securing for the purposes of the undertaking" (Outar v City of New York, 5 NY3d 731, 732; see Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757, 758). The plaintiff must also show that the object fell "because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci v Manhasset Bay Assoc., 96 NY2d at 268). Here, the pipe which fell was not in the process of being hoisted or secured, and did not require securing for the purpose of being affixed to the ceiling. Accordingly, the injured plaintiff's accident did not result from the special hazards associated with gravity-related accidents covered by Labor Law § 240(1), and does not fall within the scope of that statute (see Narducci v Manhasset Bay Assoc., 96 NY2d at 268; Marin v AP-Amsterdam 1661 Park LLC, 60 AD3d 824, 825; Atkinson v State of New York, 20 AD3d 739, 740; Sierzputowski v City of New York, 14 AD3d 606, 607; Sparkes v Berger, 11 AD3d 601, 602; Fegundes v New York Tel. Co., 285 AD2d 526, 527). Accordingly, the injured plaintiff's accident does not fall within the scope of Labor Law § 240(1).
In light of our determination, we need not reach Del Savio's alternative argument that he cannot be held personally liable for the owner's alleged statutory violation.
MASTRO, J.P., DICKERSON, ENG and HALL, JJ., concur.
McNabb v. Oot Bros., Inc.


Appeal and cross appeal from an order of the Supreme Court, Onondaga County (Donald A. Greenwood, J.), entered May 2, 2008 in a personal injury action. The order granted the motion of defendant Oot Bros., Inc. For summary judgment, granted in part the motion of defendants Bryan Place and Jacqueline Place for summary judgment, and granted the cross motion of defendant Build Your Own Home, LLC for summary judgment.

ERNEST D. SANTORO, ESQ., P.C., ROCHESTER (JAMES R. SULLIVAN OF COUNSEL), FOR DEFENDANTS-APPELLANTS-RESPONDENTS.
STANLEY LAW OFFICES, LLP, SYRACUSE (ROBERT A. QUATTROCCI OF COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.
SUGARMAN LAW FIRM, LLP, SYRACUSE (STEPHEN A. DAVOLI OF COUNSEL), FOR DEFENDANT-RESPONDENT OOT BROS., INC.
LONGSTREET & BERRY, LLP, SYRACUSE (MICHAEL LONGSTREET OF COUNSEL), FOR DEFENDANT-RESPONDENT BUILD YOUR OWN HOME, LLC.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion of defendants Bryan Place and Jacqueline Place in its entirety and dismissing the amended complaint against those defendants and as modified the order is affirmed without costs.
Memorandum: Plaintiff was injured while performing work for his employer, Fleetwood Drywall, Inc., at a house being built by defendants Bryan Place and Jacqueline Place. Plaintiff was working on stilts when he tripped over an electrical cord, causing him to fall and sustain injuries. The Places contracted with defendants Oot Bros., Inc. (Oot) and Build Your Own Home, LLC (BYOH) for consulting services in connection with the design and construction of the house. Plaintiff commenced this action alleging violations of Labor Law §§ 200, 241 (1) and § 241 (6), as well as common-law negligence.
Oot moved for summary judgment dismissing the amended complaint against it on the ground that it acted as a consultant, not a general contractor or agent, and thus that the Labor Law cause of action should be dismissed against it. In addition, Oot contended that it did not direct or control plaintiff's work and thus that both the common-law negligence cause of action and the Labor Law § 200 claim should be dismissed against it. The Places also moved for summary judgment dismissing the amended complaint against them, and BYOH cross-moved for that same relief.
Supreme Court concluded that none of the defendants was liable under Labor Law § 240 (1) because plaintiff's accident was not caused by an elevation-related hazard. The court further concluded that neither Oot nor BYOH acted as a general contractor or agent of the Places and therefore were not liable under Labor Law § 240 (1) or § 241 (6). The court also concluded that Oot and BYOH were not liable for common-law negligence or Labor Law § 200 because, inter alia, they did not exercise supervisory control over the safety of the work site. With respect to the Labor Law § 241 (6) claim against the Places, the court determined that plaintiff raised an issue of fact whether the Places directed or controlled the work and thus that they were not entitled to dismissal of that claim under the homeowner's exemption in the statute. The court, however, dismissed the Labor Law § 241 (6) claim against the Places insofar as it was based on 12 NYCRR 23-1.5 (a) because that regulation is not sufficiently specific to support that claim. Finally, with respect to the common-law negligence cause of action and Labor Law § 200 claim against the Places, the court concluded that the Places did not actually move for summary judgment with respect to that cause of action and claim. The Places appeal from the order, and plaintiff cross-appeals from the order with the exception, as limited by his brief, of that part dismissing the Labor Law § 241 (6) claim against all defendants based on 12 NYCRR 23-1.5 (a).
Contrary to the contention of plaintiff on his cross appeal, the court properly dismissed the Labor Law § 240 (1) claim against all defendants because the accident does not fall within the purview of that statute (see Melber v 6333 Main St., 91 NY2d 759, 763-764; Russell v Widewaters S. Bay Rd. Assoc., 289 AD2d 1025). We further conclude that neither Oot nor BYOH served as general contractors or agents of the owners and thus that the court properly determined that they are not liable under Labor Law § 240 (1) or § 241 (6) (see generally Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318).
With respect to the Labor Law § 241 (6) claim against the Places, we conclude that the court erred in determining that they are not entitled to the homeowner's exemption set forth therein. The fact that they were in effect acting as their own general contractor "will not bar application of the single-family homeowner exemption so long as [they] did not control or direct the method or manner of the work being performed by plaintiff at the time of the injury" (Soskin v Scharff, 309 AD2d 1102, 1104). Here, the Places established that they did not control or direct the manner in which plaintiff or his employer performed the insulation work in the house, they did not provide the electrical cord in plaintiff's work area, and they did not suggest that any particular tools, materials or safety devices be used (see Jumawan v Schnitt, 35 AD3d 382, lv denied 8 NY3d 809). The exemption applies "even though [the Places were] present at the construction site from time to time and hired subcontractors to perform [certain] work" (Schultz v Iwachiw, 284 AD2d 980, 980, lv dismissed in part and denied in part 97 NY2d 625).
Having addressed the Labor Law § 240 (1) and § 241 (6) claims against all defendants, we now turn to the remainder of the amended complaint, i.e., the common-law negligence cause of action and the Labor Law § 200 claim. We conclude with respect to Oot and BYOH that the court properly granted summary judgment dismissing that cause of action and claim against them. As the court properly concluded, those defendants established that they did not have the authority to control plaintiff's work and thus neither can be liable under the statute for failure to provide a safe place to work (see Russin, 54 NY2d at 317). The presence of either an Oot or BYOH employee at the site is insufficient to impose liability on those defendants for common-law negligence or under Labor Law § 200 (see Burkoski v Structure Tone, Inc., 40 AD3d 378, 381).
As previously noted, the court determined that the Places did not seek summary judgment dismissing the common-law negligence cause of action and Labor Law § 200 claim against them, and the court therefore did not address that cause of action and claim against them. We conclude, however, that the Places did in fact implicitly seek that relief by contending in support of their motion that they did not direct or control the work and thus could not be held liable for plaintiff's injuries. We further conclude that the Places are entitled to summary judgment with respect to common-law negligence and Labor Law § 200 because they established that they did not exercise supervisory control over the work of plaintiff and his employer and that they neither created nor had actual or constructive notice of the dangerous condition (see Hennard v Boyce, 6 AD3d 1132, 1133). Although the agreement between Oot and the Places gave the Places the authority to direct or control plaintiff's work and the safety at the site, the record establishes that they did not actually do so (see Schultz, 284 AD2d at 980).
We therefore modify the order by granting the motion of the Places in its entirety and dismissing the Labor Law § 241 (6) claim in its entirety, the common-law negligence cause of action and the Labor Law § 200 claim, thereby dismissing the amended complaint against them.
Barnett v. Smith


Russo, Apoznanski & Tambasco, Westbury, N.Y. (Susan J. Mitoia
of counsel), for appellant Kathleen Smith.
Robert J. Passarelli, Babylon, N.Y. (Thomas A. Smyth of
counsel), for appellant Steven
Leventhal.
Mulholland, Minon & Roe, Williston Park, N.Y. (Garrett P.
Rooney of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Kathleen Smith and Steven Leventhal separately appeal from an order of the Supreme Court, Dutchess County (McCarty III, J.), dated August 7, 2008, which granted the plaintiff's motion for leave to renew and reargue her opposition to their separate motions for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), which had been granted in an order dated May 6, 2008, and upon renewal and reargument, in effect, vacated the original determination in the order dated May 6, 2008, and thereupon denied their motions for summary judgment.
ORDERED that on the Court's own motion, the notice of appeal dated September 5, 2008, is deemed to be a notice of appeal by the defendant Steven Leventhal (see CPLR 2001; Matter of Tagliaferri v Weiler, 1 NY3d 605); and it is further,
ORDERED that the order dated August 7, 2008, is reversed, on the law, with one bill of costs payable to the defendants Kathleen Smith and Steven Leventhal appearing separately and filing separate briefs, the plaintiff's motion for leave to renew and reargue is denied, and the order dated May 6, 2008, is reinstated.
A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][3]; see Chernysheva v Pinchuck, 57 AD3d 936; Dinten-Quiros v Brown, 49 AD3d 588; Madison v Tahir, 45 AD3d 744). The Supreme Court erred in granting that branch of the plaintiff's motion which was for leave to renew, which was based on the medical report of Dr. Mark G. Grossman, dated June 3, 2008. Among other things, this report contained information from examinations that occurred in 2006 and 2007 that could have been, but was not, included in opposition to the defendants' separate motions for summary judgment dismissing the complaint. The plaintiff failed to provide any justification for the failure to present such evidence on the original motions.
The Supreme Court further erred in granting that branch of the plaintiff's motion which was for leave to reargue. "Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision" (E.W. Howell Co., Inc. v S.A.F. La Sala Corp., 36 AD3d 653, 654 [internal quotations marks omitted]; see CPLR 2221[d]; McDonald v Stroh, 44 AD3d 720, 721; Matter of New York Cent. Mut. Ins. Co. v Davalos, 39 AD3d 654, 655). The defendants, in support of their respective motions for summary judgment, met their prima facie burdens of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). In opposition, the plaintiff failed to raise a triable issue of fact.
The affirmed medical report of Dr. Stephen Geiger, dated January 4, 2008, was insufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injury to her cervical spine as a result of the subject accident. In this report, while Dr. Geiger noted that cervical spine range of motion was "restricted," he failed to set forth any quantified range of motion findings concerning the plaintiff's cervical spine, nor did he provide a qualitative assessment of her cervical spine (see Toure v Avis Rent A Car Sys., 98 NY2d at 350; Shtesl v Kokoros, 56 AD3d 544).
Dr. Grossman's report, dated January 29, 2008, also failed to raise a triable issue of fact. While Dr. Grossman noted left shoulder range of motion findings, he failed to compare those findings to what is normal (see Banguela v Babbo, 51 AD3d 833; Page v Belmonte, 45 AD3d 825; Malave v Basikov, 45 AD3d 539; Fleury v Benitez, 44 AD3d 996; Nociforo v Penna, 42 AD3d 514). Even if these findings revealed significant limitations in the plaintiff's left shoulder range of motion, neither Dr. Grossman nor the plaintiff proffered objective medical evidence that revealed the existence of significant limitations in the plaintiff's left shoulder range of motion that were contemporaneous with the subject accident (see Leeber v Ward, 55 AD3d 563; Ferraro v Ridge Car Serv., 49 AD3d 498; D'Onofrio v Floton, Inc., 45 AD3d 525).
Lastly, inasmuch as the plaintiff submitted no medical evidence dated earlier than 2008 in opposition to the defendants' motions, she failed to submit competent medical evidence that the injuries she allegedly sustained in the subject accident rendered her unable to perform substantially all of her daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Sainte-Aime v Ho, 274 AD2d 569).