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Coverage Pointers - Volume XI, No. 23

Dear Coverage Pointers Subscribers:

Thanks ever so much for the wonderful feedback on my last letter. I struck a familiar chord with a good number who wrote to express how they also have maintained a love for their work, craft and profession and so many expressed familiarity with "I have a situation."

This Week's Issue

My favorite case this week involved a passenger who grabbed the steering wheel from the driver and steered the vehicle into a ditch. Is the passenger entitled to coverage? Read the review below and see how a split court dealt with the issue.

Attorney Max Gershweir provides a guest review in Kathie's Federal Focus column and discusses a very interesting and all-too-common late notice issue involving the impact of a "second notice" coming from the injured party.

Poor Margo, just back from a visit to Spain, spent the day making certain that her column was in, nonetheless, and gets special thanks for her efforts. "Serious Injury" is her game.

Thanks to those of you who attended the NYS Bar Association program last week in Buffalo and a couple of you who were kind enough to say "Hi."

One Hundred Years Ago Today:

One hundred years ago today, Woolworth's became the first large retail chain to sell ice cream cones, test-marketing the treat at counters at several sites that had been supplied with modern refrigerator-freezers. It worked. Yum

Words from Audrey Seeley, The Queen of No Fault:

This edition is pretty light but please be sure to read about the recent conference with AAA regarding the updates for 2009 on New York No-Fault Administration. This conference was a great opportunity to understand what trends AAA is seeing in filings, what AAA has done within the past year to improve the administration of No-Fault, and, importantly, what issues the system users see that could be addressed. One major point I took from this conference is that it appears AAA may be focusing on improving the Master Arbitration aspect of the program in the future.

 

Now that the weather is warmer and summer is around the corner please keep in mind No-Fault training. Whether it is a need for a claims handling refresher; knowledge of the recent issues arising Upstate with regard to IMEs and Peer Reviews; strategies for drafting arbitration evidence submissions; or addressing a particular issue(s) you are facing please let me know if we can be of service at [email protected]

 

Audrey

100 Years Ago This Week: Celebrating the Birthday, Life and Legacy of "Memphis Lou" Chiozza

One hundred years ago this week, Lou Chiozza was born in Tallulah, Louisiana. I had the honor and pleasure of talking to his son, Lou, a lawyer in Memphis, Tennessee about his father. Lou (the lawyer) is the proud founder of a family operated law firm in Memphis, where he has the pleasure of practicing law with his children, all fine lawyers in their own right.

As a youngster, Memphis Lou was a star athlete, playing baseball, football and basketball. At the age of 21, he signed on to play shortstop for the Memphis Chicks, a minor league baseball team, and a charter member of the Southern Association.

Two years later, Lou. known for his speed on the base path, was drafted by the Philadelphia Phillies (at the close of the 1933 season) and played both infield and outfield. Lou's brother Dino Chiozza was also drafted by the Phillies and they were one of the first sets of brothers to play on the same team in major league baseball. Another brother, Joe, also played professional baseball but didn't make it out of the minor leagues.

First Batter in a Night Game

The headline in the Saturday, May 25, 1935 San Antonio Express reads:


Cincinnati Wins First Night Game
Reds Defeat Phillies 2-1 in Close Game Behind Paul Dehringer


"With the floodlights of Crosley Field throwing brilliance into every corner." the first night game in Major League history was played in Cincinnati the previous night. The lead-off batter for the visiting Phillies was Lou Chiozza, who became the first player ever to bat in a major league night game.


Lou and the Babe

On May 29, 1935, the Phillies were playing against the Boston Braves. By that time, Babe Ruth, at the ripe old age of 40, was plaing left field for the Braves. Reports indicated that Chiozza, just called up from the Chicks, hit a short fly ball down the left field line that should have been, at best a double. Due to his advanced age and decreased mobility, Ruth stumbled after the ball in the outfield. The shortstop ran out, retrieved the ball and threw the ball home to barely stop Chiozza from an inside the park home run.

Many in the park believed that the umpire felt sorry for the aging star and called an obviously safe Chiozza out at home plate. After Ruth realized that he was so slow that Lou almost made a home run on an ordinary base hit, he stood for a minute, folded his glove and walked off the field into the clubhouse. The Babe knew he was done and he officially retired a few days later on June 2, 1935.

At the end of the 1936 season, Lou was sold to the Giants, for, as his son recalls, three players and $25,000. Towards the end of the 1939 season, he collided with long time Giant outfielder Jo-Jo Moore and sustained a compound leg fracture that eventually led to the end of his career.

Lou's son Lou recalls that famed Broadway actress Tallulah Bankhead often visited his father in the hospital and when asked about her attraction to him, she indicated that she had a special place in her heart for a man born in Tallulah, Louisiana.

Following his retirement from baseball, Chiozza moved back to Memphis where he worked as a local liquor dealer and grocery store owner. He was President of the Memphis Italian Society, and founded Bella Vista Country Club. He married the former Catherine Lucchesi and had five children, Ann Marie, Lou, Rena, Toni and Libby. Chiozza died in 1971.

Happy Birthday "Memphis Lou" and I will take Lou the Lawyer up on his dinner invitation next time we're down there.

From Steve Peiper, the Prince of Property

Red Alert!!! No potpourri in this edition, but we finally have four legitimate first-party property damage cases. Please take a moment to review the Fourth Department's separate reviews of the often litigated two-year suit limitation clause as set forth in Cooper and Dail, respectively. In addition, the Fourth Department (rightfully so, we might add) throws out unsupported extra-contract claims in a first-party context. The Fourth Department even treats us to a discussion on dominant and efficient cause, and how that translates to applicable policy exclusions.


I know, I know...enjoy your coffee. See you in two weeks.
 

Steve Peiper
[email protected]

Highlights of This Week's Issue:

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

  • Homeowners Policy Excludes Claim for Wrongful Death of Insured Person
  • Effective Cancellation Leads to Uninsured Motor Vehicle
  • Contractual Additional Insured Status Not Triggered Where Underlying Contract Did Not Require Such Status
  • Exclusivity of Workers Compensation Remedy Does Not Preclude Uninsured Motorist Claim Against Employer
  • Divided Court Vacates Arbitration Award, When Earlier Decision Had Temporarily Stayed Arbitration Under Underlying Coverage Issues Were Resolved in Pennsylvania
  • Passenger Who Grabbed Steering Wheel (Even to Prevent an Accident) Is Not Entitled to Coverage as Insured, Since Not a Permissive User. Status as Permissive Passenger Not Enough to Qualify as Insured

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

  • Contemporaneous Evidence Requirement Exists Even Where There Has Been Surgery

  • Contemporaneous, Objective Proof of Injury Is Required to Meet Threshold
  • Complaint Is Dismissed Where Plaintiff's Expert Reports Full Range-of-Motion and Plaintiff Fails to Address Reports of Pre-Existing Conditions
  • Plaintiff Fails to Explain Gap in Treatment
  • Conclusion that Injuries Were Caused by Accident Is Speculative Where Reports of Preexisting Degeneration Are Not Addressed
  • Report that Range-of-Motion of Knee Is "Decreased" Is Insufficient
  • Plaintiff's Motion Denied Where She Sustained Similar Injury Three Months Earlier
  • Significant Limitations Found More than Four Years After Accident Defeat Defendant's Motion
  • Without Contemporaneous Findings, Plaintiff Cannot Raise a Triable Issue of Fact
  • Affirmation Which Relies on Unsworn Records and Reports Is Insufficient
  • Defendants Fail to Submit Evidence that Injuries Are Entirely Attributable to Prior Accidents and Not Exacerbation
  • Lost Earnings Are Not Limited to Actual Earnings Before the Accident
  • Awards for Past, Present and Future Pain and Suffering, as Well as Loss of Consortium, Are Affirmed
  • Deficiency in Opposing Motion Cannot Be Cured By Surreply
  • Contemporaneous and Recent Examinations and Review of MRI Reports Defeat Summary Judgment
  • Three Year Unexplained Gap in Treatment and Lack of Objective Medical Evidence Defeat Plaintiff's Claim
  • Failure to Specify Degree or Range-of-Motion and Compare with the Norm Creates Triable Issue of Fact
  • AUDREY'S ANGLES ON NO-FAULT
    Audrey Seeley
    [email protected]

AAA Changes Matching Claims Procedure

ARBITRATION

Medical Provider Required to Accept Fee Per PPO Contract

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

  • Dominant and Efficient Cause of Damage is Plainly Excluded by the Terms of the Policy
  • Location of the Claim was Not an Insured Location Under the Policy
  • Court Refuses to Dismiss Plaintiff's Contractual Claims on Statute of Limitations Grounds, but Dismisses Plaintiff's Extra-Contractual Claims
  • Statutory Toll for Death Precludes Merchants from Relying Upon its Two-Year Suit Limitation Clause

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

    Second Circuit Finds that Claimant's Notice, Given After Insured's Untimely Notice, May Preserve Rights Under Policy, Ignoring Legislative History

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

    .

    • Court Holds that Notice of Claim Was Late; However, Only One Out of Three Insurers Timely Disclaimed Coverage as to Late Notice
    • Disclaimer Upheld Where Building Manager Was Notified On The Date of the Incident that the Injured Party Fell and Was Taken Away in an Ambulance
    • Court Denies Motion to Dismiss Where Evidence Indicated that Insurer Previously Provided Coverage for Work in the Five Boroughs of New York City
    • Court Holds that Injury to a Subcontractor's Employee Arose Out of Its Work
    • Court Determines that Homeowners Did Not Reside on Premises on the Date of Loss

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

      ARBITRATION: The Best Justice Money Can Buy?

      Special birthday wishes go out this week to my letter editor, who dots my i's, crosses my t's and tolerates my stories.

      Well, that's all for now. Keep writing.

      Dan


      Hurwitz & Fine, P.C. is a full-service law firm
      providing legal services throughout the State of
      New York

      NEWSLETTER EDITOR
      Dan D. Kohane

      [email protected]


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


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


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

      Jennifer A. Ehman

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


      Index to Special Columns
      Kohane's Coverage Corner
      Margo's Musings on Serious Injury
       Audrey's Angles on No Fault
      Peiper on Property and Potpourri
      Fijal's Federal Focus
      Jen's Gems
      Earl's Pearls
      Across Borders

       

      KOHANE'S COVERAGE CORNER
      Dan D. Kohane

      [email protected]

      5/7/10 Cragg v. Allstate Indemnity Company
      Appellate Division, Fourth Department
      Homeowners Policy Excludes Claim for Wrongful Death of Insured Person
      Plaintiffs decedent (granddaughter) drowned in her grandparents swimming pool. Granddaughter and her mother were living in grandparents home and qualified as insureds.

      Her father who was not an insured commenced wrongful death action against mother and grandmother. Allstate had homeowners policy and disclaimed coverage for defendants under the policy pursuant to the provision excluding coverage for "bodily injury to an insured person . . . whenever any benefit of this coverage would accrue directly or indirectly to an insured person."
      Fourth Department, in case of first impression in New York, holds that Allstates policy excludes from coverage any claim to recover for the injury or resultant death of an insured person. The court rejected that contention of plaintiff that the derivative nature of his wrongful death action renders the policy exclusion inapplicable.


      5/4/10 Matter of Lincoln General Insurance Company v. Williams
      Appellate Division, Second Department
      Effective Cancellation Leads to Uninsured Motor Vehicle

      On September 6, 2006, Williams, was operating a vehicle insured by the Lincoln when he was involved in a collision with a vehicle operated by Marina Villalta and owned by Jose E. Villalta. Williams filed a claim for uninsured motorist's benefits under the Lincoln on the ground that Villalta's vehicle was uninsured. When he filed his demand for arbitration, Lincoln sought to permanently stay the arbitration on the ground that the car was insured by AutoOne. AutoOne claimed that it had canceled the policy at Villaltas request effective August 29, 2006.

      Where an insured initiates a policy cancellation, the insurer need not send the insured a notice of termination but must send one to the Department of Motor Vehicles within 30 days of the effective date of the cancellation.

      AutoOne demonstrated compliance and needed to do nothing else. Accordingly, the Villalta vehicle was uninsured and the stay of arbitration would not be granted.

      5/4/10 140 Broadway Property v. Schindler Elevator Company
      Appellate Division, Second Department
      Contractual Additional Insured Status Not Triggered Where Underlying Contract Did Not Require Such Status

      140 Broadway Property (140) and its carrier American Home claimed additional insured status and sought defense and indemnity under a policy issued by Zurich to Schindler Elevator Company (Schindler) in an underlying personal injury. The additional insured endorsement in the Zurich policy extended coverage to any entity Schindler had agreed by written contract to insure.

      140 argued that the contract with Schindler required Schindler to obtain insurance coverage naming them as an additional insured. However, Zurich established that the written contract between Schindler and 140 Broadway did not require Schindler to name 140 Broadway as an additional insured on its general liability coverage. The Zurich general liability policy extends coverage to any entity "for whom the named insured [Schindler] has specifically agreed by written contract to procure bodily injury, property damage and personal injury liability insurance." Although the written contract between 140 Broadway and Schindler, the primary insured, requires Schindler to purchase several forms of insurance coverage, it did not expressly state that Schindler is required to name 140 Broadway as an additional insured on its general liability coverage.

      5/4/10 In re Elrac, Inc. v. Exum
      Appellate Division, First Department

      Exclusivity of Workers Compensation Remedy Does Not Preclude Uninsured Motorist Claim Against Employer
      While Exum was in the course of his employment, and was operating a car, he had an accident with an uninsured motor vehicle. He filed a demand for uninsured motorists arbitration with Elrac and Elrac moved to stay the arbitration. Elrac argued that since the accident occurred in the regular course of Exums employment, the exclusivity provisions of the Workers' Compensation Law preclude respondent from arbitrating a claim against his employer, who was self-insured.

      The court rejected the argument because the employer, like owners of all automobiles in New York, was required to provide UM benefits under the Insurance Law. The right to obtain uninsured motorist protection from a self-insurer is no less than the corresponding right under a policy issued by an insurer.
      The court also rejected the petition as untimely, it being filed 13 months, rather than within 20 days, of the arbitration demand.
      Editors Note One starts to feel sorry for Enterprise Rentals (Elrac) that seems to lose about every appeal in which they are involved. They probably dont, but it sure feels that way to us.

      4/30/10 New Hampshire Insurance Company v. Bobak
      Appellate Division, Fourth Department
      Divided Court Vacates Arbitration Award, When Earlier Decision Had Temporarily Stayed Arbitration Under Underlying Coverage Issues Were Resolved in
      Pennsylvania
      Bobak commenced a personal injury action in Pennsylvania seeking to recover for injuries sustained in that state. He then filed a claim for underinsured motorists benefits under his employers policy with New Hampshire Insurance Company (NHIC). NHIC denied benfits and Bobak filed a demand for arbitration. In an earlier appeal (reported in Volume VIII, No. 23 of CP, the Fourth Department had considered the application and had temporarily stayed arbitration to allow a Pennsylvania coverage action to proceed:

      4/20/07            Matter of AIG Claims Services, Inc. v. Bobak
      Appellate Division, Fourth Department
      Uninsured Motorist Arbitration Stayed Until Coverage Litigation Is Resolved in Pennsylvania Which Seeks to Determine Whether, in Fact, Trucking Company Is Uninsured
      AIG on behalf of New Hampshire Insurance Company (NHIC) sought stay of uninsured motorist arbitration, or, in the alternative, sought stay to bring in all other parties and conduct discovery. Injured party was hurt in Pennsylvania when truck he was operating was struck by object that fell from truck leased by B-Right Trucking and owned by Ryder,  B-Rights carrier, Reliance, became insolvent so injured party filed uninsured motorists claim with his employers insurer, NHIC.
      Another carrier provided excess coverage over the Reliance policy and there was no evidence that the other carrier had disclaimed and similarly, no evidence that Reliances assets were gone.  Those questions are being resolved in a Pennsylvania proceeding and the Appellate Division agreed that the SUM arbitration be stayed until the Pennsylvania coverage case is resolved.
      NHIC had commenced an action in Pennsylvania seeking a declaration with respect to the insurance coverage issues which was not yet resolved. Bobak's sought to have the arbitration of SUM benefits go forward but NHIC then commenced a second proceeding to stay the arbitration based on the 2007 appellate order, discussed above, arguing that allowing the arbitration to proceed would violate the 2007 determination. The lower court refused to grant the stay, the arbitration proceeded, and there was a $1 million + arbitration award confirmed by the lower court.
      Not surprisingly, the Fourth Department vacated that confirmed arbitration award, since the lower court, in not staying the arbitration, violated the 2007 Fourth Department order staying arbitration.
      The Court refused to rule, at time, whether the arbitrator exceeded his power and awarded benefits in excess of the SUM coverage because it was unclear (and would be until the Pennsylvania matter was resolved) whether the offending carriers car would have the coverage afforded by the Reliance policy or, because of State was now overseeing Reliances assets, whether the States limits would be in play.
      Two dissenting judges contended that the delays in Pennsylvania were caused by NHIC and that the lower court was right in not enforcing the stay. The dissenters argued that NHIC was taking advantage the delay and that the stay wasnt meant to last forever.

      4/30/10 Progressive Halcyon Insurance Company v. Giacometti
      Appellate Division, Fourth Department
      Passenger Who Grabbed Steering Wheel (Even to Prevent an Accident) Is Not Entitled to Coverage as Insured, Since Not a Permissive User. Status as Permissive Passenger Not Enough to Qualify as Insured
      This ones interesting and entertaining;; it could become a mini-series, or a bodice ripper. A battle for control of the car, claims of negligent entrustment and an intellectual debate of use of a vehicle all lead to an interesting coverage opinion

      There was a three-car accident in North Carolina. Shannon Doyle (Shannon the Driver) was driving a car with two passengers, Amy Giacometti and Marle Fiocco. For reasons in dispute, the driver, Shannon steered the wheel to the left and Amy grabbed the wheel (Amy the Grabber) and steered it to the right. Apparently, Amy was stronger and the car left the road, crashed into trees and all three women were injured

      Doyle had leased the vehicle from GMAC and the vehicle was insured by Progressive. Shannon the Driver sued Amy the Grabber. Amy the Grabber sued Shannon the Driver and Marle sued everyone, including GMAC. The claim by Marle against GMAC was that it negligently entrusted the car to Shannon the Driver.

      The Fourth Department found that Progressive had no obligation to defend Amy the Grabber since she did not have permission, express or implied to grab the wheel and operate the car and therefore was not an insured under the policy. Amy claimed that she had grabbed the wheel to prevent an accident but the court held that this didnt make Amy a permissive user. While a long term lessee, like Shannon is considered a owner of the vehicle under New York law and while there is a strong presumption that anyone using the vehicle is doing so with the permission of the owner, here, the presumption was rebutted.

      Progressive, however was order to pay GMAC for defending the negligent entrustment claim. Whether that claim has merit or not, the claims are auto-related and fall within the protection of the policy. Since Progressive commenced that declaratory judgment action against GMAC, and did not prevail, under Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, it is obligated not only to pay defense costs in the underlying action but the attorneys fees incurred by GMAC in defending the declaratory judgment action.

      Marle had also claimed that Shannon the Drive entrusted Amy the Grabber with the use of the vehicle, a claim the court rejected.
      .
      Justice Fahey dissented in part with a very interesting analysis. He argued thjat whether Amy the Grabber had permission, or not, to grab the steering wheel and drive or control the car was of no consequence. The policy, he contended, provides coverage to not only the permissive operator but the permissive user as well. A passenger is using the vehicle even if she is not operating it. Amy, he posited, was clearly a permissive passenger and therefore a permissive user. Accordingly, whether she was given permission to operate the car or not was inconsequential to her status as an insured: utilizing a vehicle for acts that occur in the interimincluding the acts of a passenger traveling from one point to anothermay be fairly characterized as the "use" of that vehicle.

      While we appreciate the fact that the term use may be different than operation, Justice Faheys broad view of the term would provide coverage to anyone in a car doing anything, so long as the car was moving. Should the person who commits an assault and battery in a moving car be entitled to coverage? We think not.

      MARGOS MUSINGS ON SERIOUS INJURY UNDER NEWYORK NO FAULT
      Margo M. Lagueras

      [email protected]

      5/13/10 DeJesus v. Cruz
      Appellate Division, First Department
      Contemporaneous Evidence Requirement Exists Even Where There Has Been Surgery

      Plaintiff was a pedestrian struck by the car operated by the defendant and owned by the co-defendant. She allegedly injured her left knee, cervical and lumbar spine. Defendants expert orthopedist, however, found normal range-of-motion and no evidence of traumatic injury of the knee, normal range-of-motion of the cervical spine and normal range-of-motion of the lumbar spine except for lateral movement. In addition, the defendants expert neurologist determined that all the plaintiffs complaints were due to pre-existing, degenerative conditions.

      In opposition, the plaintiff failed to proffer sufficient objective evidence that was contemporaneous with the accident. Even where, as here, there is surgery on the knee, contemporaneous evidence showing range-of-motion limitation is a requirement. Plaintiffs physician also failed to address the findings of the defendants experts that the conditions alleged were due to pre-existing, degenerative changes and not traumatic injury. As such, the trial court was unanimously reversed and the defendants motion granted.

      5/13/10 Lazarus v. Perez
      Appellate Division, First Department
      Contemporaneous, Objective Proof of Injury Is Required to Meet Threshold

      On appeal, the court affirms the trial courts denial of the plaintiffs motion to renew as there were no new facts not offered on the prior motion. The court further noted that the plaintiffs argument was, in any event, without merit as the unsworn and uncertified contemporaneous records from South Africa, which were admissible because the defendants referred to them in their motion, did not reveal any abnormalities or spinal defects, nor did they contain any quantitative assessments of range-of-motion limitations. With regard to the plaintiffs claim under the 90/180-day category, her contention that she missed some time from college was insufficient absent medical evidence in support.

      5/4/10 Weinberg v. Okapi Taxi, Inc.
      Appellate Division, First Department
      Complaint Is Dismissed Where Plaintiffs Expert Reports Full Range-of-Motion and Plaintiff Fails to Address Reports of Pre-Existing Conditions

      Plaintiffs orthopedist consistently reported that the plaintiff had full range-of-motion of the ankle and the plaintiffs claims of limitations were not supported by objective medical evidence comparing the alleged limitations with normal function. In addition, the plaintiff did not address the degenerative changes seen in the emergency room x-rays or the opinions of the defendants expert that the injuries were pre-existing. As regards the claim under the 90/180-day category, the plaintiffs claimed inability to work for more than 90 days is not dispositive of a 90/180-day injury.

      5/4/10 Gnahore v. Gonzalez
      Appellate Division, Second Department
      Plaintiff Fails to Explain Gap in Treatment

      On appeal, the trial court is affirmed and the plaintiffs complaint dismissed where he submitted unaffirmed and uncertified medical records and reports in opposition and failed to explain the gap between his cessation of treatment and his re-examination for the purpose of opposing the defendants motion.

      5/4/10 Nieves v. Michael
      Appellate Division, Second Department
      Conclusion that Injuries Were Caused by Accident Is Speculative Where Reports of Preexisting Degeneration Are Not Addressed

      Plaintiffs treating physician did not address the findings of the defendants examining physician who concluded that the plaintiffs injuries and range-of-motion limitations were due to preexisting degeneration. As such, his conclusion that the injuries were caused by the accident were speculative. In addition, although the plaintiff was examined soon after the accident and loss of motion in her shoulder was noted, the objective tests used and the extent of the limitations were not. Therefore, while the recent examination noted significant limitations, there were no contemporaneous findings of the shoulder limitations, causing the plaintiffs claims under the permanent loss, permanent consequential limitation or the significant limitation of use categories to fail. Furthermore, her claim under the 90/180-day category failed because her own deposition testimony established she only missed seven days of work and that she return to her same duties as before the accident.

      5/4/10 Ortiz v. Ianina Taxi Services, Inc.
      Appellate Division, Second Department
      Report that Range-of-Motion of Knee Is Decreased Is Insufficient

      On appeal, the trial court is reversed and the defendants motion granted. While plaintiffs treating physician noted, during a recent examination, that the plaintiffs range-of-motion of her right knee was decreased, he did not set forth any of the objective tests used, nor did he quantify the limitation or provide a qualitative assessment. Similarly, the MRI reports of cervical and lumbar bulging discs did not set forth the extent of the limitations or the duration of the injuries and were, therefore, insufficient.

      5/4/10 Rasporskaya v. New York City Transit Authority
      Appellate Division, Second Department
      Plaintiffs Motion Denied Where She Sustained Similar Injury Three Months Earlier

      Defendants successfully opposed the plaintiffs motion by showing that the injury to her right shoulder did not prevent her from performing substantially all her customary daily activities and that, even if she did sustain an injury to the right shoulder in the subject accident, she had sustained a similar injury in a prior accident three months earlier.

      5/4/10 Smith v. Hartman
      Appellate Division, Second Department
      Significant Limitations Found More than Four Years After Accident Defeat Defendants Motion

      Defendant failed to meet his prima facie burden where his examining orthopedist reported significant range-of-motion limitations during testing of both plaintiffs more than four years after the occurrence. Therefore, there was no need to consider the plaintiffs opposing papers.

      5/4/10 Villante v. Miterko
      Appellate Division, Second Department
      Without Contemporaneous Findings, Plaintiff Cannot Raise a Triable Issue of Fact

      In opposition to the defendants motion, the plaintiff only submitted the affirmation of her treating physician which noted significant range-of-motion limitations of her lumbar spine based on recent examination. Although the affirmation also stated that the plaintiff was examined contemporaneously with the accident and also ten months later, and that restrictions were found at those times, the tests performed were not noted. Without the contemporaneous findings, the plaintiff could not oppose the defendants motion.

      5/4/10 Vilomar v. Castillo
      Appellate Division, Second Department
      Affirmation Which Relies on Unsworn Records and Reports Is Insufficient

      Defendants examining orthopedic surgeon found the plaintiffs right knee limitations were insignificant and plaintiffs claims under the permanent loss of use, permanent consequential limitation of use, and significant limitation of use categories fail. In opposition, the plaintiff submitted unaffirmed reports and an affirmation that relied on unsworn records and reports. In addition, the plaintiff did not offer any contemporaneous evidence of limitations to his cervical and lumbar spine, nor did the affirmed report noting a torn tendon raise an issue of fact because, as well established, the mere existence of a torn tendon is not evidence of serious injury without evidence of the extent of the alleged limitations or the duration.

      4/30/10 Benson v. Lillie
      Appellate Division, Fourth Department
      Defendants Fail to Submit Evidence that Injuries Are Entirely Attributable to Prior Accidents and Not Exacerbation

      Plaintiff was rear-ended while completely stopped at an intersection. Defendants submitted evidence that the plaintiff had cervical and lumbar spine injuries, but argued that those injuries were due to prior accidents. The trial courts ruling denying the defendants motion was affirmed on appeal because the defendants did not submit evidence that, as a matter of law, the injuries were entirely attributable to prior accidents and were not exacerbated by the current accident.

      4/30/10 Shubbuck v. Conners
      Appellate Division, Fourth Department
      Lost Earnings Are Not Limited to Actual Earnings Before the Accident

      Plaintiff was injured when the taxi he was driving collided with defendants vehicle. The trial court granted his pre-trial motion for partial summary judgment on the issue of serious injury and on appeal this ruling was affirmed. At trial, the issue was whether the assessment of damages could be based upon future probabilities. Plaintiff alleged that other managers at the construction company where he worked made $15.00 per hour where he only made $10.00, and that this was due to his inability, due to his injuries, to perform the physical labor performed by the others. On appeal, the court reiterated its prior determination that a plaintiffs testimony concerning earnings is sufficient to support a claim for lost wages.

      The dissent, however, would have set aside the award because it found the plaintiffs testimony to be unsubstantiated as it was based only on the plaintiffs opinion. While expert testimony is not required, the dissent found that the plaintiff failed to establish his future wage loss with the required reasonable certainty.

      4/29/10 Garrison v. Lapine
      Appellate Division, Third Department
      Awards for Past, Present and Future Pain and Suffering, as Well as Loss of Consortium, Are Affirmed

      Plaintiff suffered traumatic brain injury. Defendants conceded liability and a trial was held to determine causation and damages. The jury awarded $500,000 for past pain and suffering, $2 million for future pain and suffering for a period of 31 years, and $400,000 for the husbands claim for loss or consortium. On appeal, the court determined that the jurys verdict did not materially deviate from what would be reasonable compensation and that the jury was entitled to decide which witnesses testimonies to credit. The appellate court also agreed that the trial courts use of the 10-year treasury bond rate in place at the time of the accident to determine the present value of the future damage award was proper.

      4/29/10 Henry v. Peguero
      Appellate Division, First Department
      Deficiency in Opposing Motion Cannot Be Cured By Surreply

      On appeal, the court finds that leave to renew was not properly granted to the plaintiff who offered an addendum in an attempt to relate the degenerative changes in his spine, reported by the defendants experts, to the accident. The addendum was not the result of an additional examination or testing but was based on information available at the time the initial affidavit was prepared. The court further noted that the addendum was itself insufficient to rebut the defendants finding of degenerative change because it failed to explain the two-week gap between the accident and the commencement of treatment, during which time the plaintiff flew to Florida to visit a friend. This broke the chain of causation between the accident and the alleged injury.

      The two-judge dissent opined that it was within the trial courts discretion to grant leave to renew and that the failure to include the information contained in the addendum was sufficiently explained.

      4/27/10 Barry v. Valerio
      Appellate Division, Second Department
      Contemporaneous and Recent Examinations and Review of
      MRI Reports Defeat Summary Judgment
      Plaintiff was in a three-car accident and claimed injuries under the permanent consequential limitation and/or significant limitation of use categories. Based on both contemporaneous and recent examinations, and review of MRI reports showing multiple lumbar and cervical herniations, the plaintiffs treating physician quantified the limitations and opined that that the injuries were permanent, significant and causally related to the accident, thus raising a triable issue of fact.

      4/27/10 Milosevic v. Mouladi
      Appellate Division, Second Department
      Three Year Unexplained Gap in Treatment and Lack of Objective Medical Evidence Defeat Plaintiffs Claim

      Plaintiff claimed a serious injury to his right knee under the permanent consequential and/or significant limitation of use categories but failed to offer any findings of significant limitations that were contemporaneous with the accident. He also failed to submit any competent medical evidence to support his claim under the 90/180-day category, nor did he or his doctors explain the gap in treatment between December 2006 and January 2009.

      4/27/10 Sentino v. Valerio
      Appellate Division, Second Department
      Failure to Specify Degree or Range-of-Motion and Compare with the Norm Creates Triable Issue of Fact

      Here the plaintiff was the passenger in the same three-car accident as the Barry action previously discussed. The court determined that the defendants failed to submit sufficient support for summary judgment on either the issue of serious injury or liability. In this case, the affirmed report of the defendants neurologist failed to specify the degree of range-of-motion the plaintiff could achieve with her right hand or compare those findings with what is normal. An issue of fact also remained with regard to whether excessive speed resulted in the inability to avoid the collision.


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

      The decisions and award are light this time but we have other events in the No-Fault world to disclose this edition.

      On May 12, 2010, I attended the American Arbitration Associations Annual System Group User Meeting. There was a healthy balance of provider/injured person and insurer representation at the meeting. The purpose of the meeting was to update those who participate in the No-Fault arbitration system on the events occurring within the past year of administration of New York No-Fault arbitration.

      AAA has reported a nearly 20% increase in arbitration filings since 2009. Further, there has been a reduction in the number of arbitrators but AAA assured everyone that this will not lead to a backlog of cases. AAA announced that the Buffalo area gained a third arbitrator, Arbitrator Kent Benziger, due to increased volume. Also, there are a number of arbitrators who will be moving to different geographic areas:
      Arbitrators moving to Suffolk County

      • Ken Rybacki
      • Henry Sawits
      • Laura Yantsos

      Arbitrators moving to Nassau County

      • Michael Achtziger
      • Tim McNamara
      • Victor Moritz
      • Ann Russo
      • Jay Skelton

      Arbitrators moving within Manhattan/Brooklyn

      • Aladar Gyimesi
      • Robyn McAllister

      AAA further announced that the arbitrators, beginning in June 2010, will add an additional day within the month for hearings to accommodate the increased filings.

      AAA Changes Matching Claims Procedure
      The American Arbitration Association (AAA) released an announcement that it is changing its procedure for matching (previously called batching) and consolidating claims which involve the same injured person.

      The new procedure will now only match, not consolidate, the cases filed by the health care provider involving the same injured person. In those matched cases the insurer is only charged one case assessment cost. AAA announced that this procedure took effect in July 2009.

      ARBITRATION

      5/10/10 Cichocki & Cichocki, LLP v. Travelers Indem. Ins. Co. of Connecticut
      Arbitrator Veronica K. OConnor, Erie County
      Medical Provider Required to Accept Fee Per PPO Contract

      The Applicants assignor was involved in a July 2, 2004, motor vehicle accident and began chiropractic care with the Applicant. The Applicant entered into a Preferred Provider Organization (PPO) contract serviced by CorVel for the insurer. Due to the PPO contract terms, the Applicants bills were reimbursed at 80%, which the Applicant challenged in this arbitration.

      The Applicant argued that the PPO contract was unconscionable due to the reimbursement requirement being below the workers compensation fee schedule. The insurer argued that the Insurance Department has previously issued an opinion on this issue which does not prohibit the lower reimbursement rate. The Insurance Department opinion reasoned that the Insurance Law does not prohibit an insurer from affiliating with a network of health care providers on a voluntary basis by the eligible injured person (EIP) covered under No-Fault. While the EIP can choose to seek treatment with a participating physician under the PPO the insurer cannot induce or require the EIP to do so. The Applicant in this case voluntarily entered into the PPO contract with the insurer. The Applicants assignor chose to seek treatment from Applicant. Therefore, the bills were properly reimbursed at 80% pursuant to the PPO contract provisions.
      Also, of interest in this decision is that another provider apparently was part of the arbitration Gary Smith, DC and J. Donald Dishman, DC of General Diagnostic Associates. It was determined that they were independent contractors and the Applicant lacked standing to proceed with the arbitration.

      PEIPER ON PROPERTY (and POTPOURRI)
      Steven E. Peiper

      [email protected]


      5/07/10 Gravino v Allstate Ins. Co.
      Appellate Division, Fourth Department
      Dominant and Efficient Cause of Damage is Plainly Excluded by the Terms of the Policy
      Plaintiff commenced the instant action seeking coverage under his homeowners policy for damage to his swimming pool after it lifted from the concrete and surrounding ground. The damage occurred after the pool had been drained for several days, and was in the process of being painted.

      Upon receipt of the claim, Allstate denied coverage on the basis of an exclusion that precluded payment for damages to swimming pools arising from pressure or weight of water. Importantly, experts from both sides agreed that the cause of the damage was due to hydrostatic pressure in the soil surrounding the pool. As such, the Fourth Department ruled that the claim fell within the pressure/weight of water exclusion described above. Accordingly, Allstates coverage denial was affirmed.

      In so holding, the Court rejected plaintiffs argument that the damage occurred not due to pressure or weight of water, but because the plaintiff had drained the pool several days earlier. Had the pool not been drained, argued the plaintiff, the damage would not have occurred. In response, the Court noted that the dominant and efficient cause of the damage was the pressure of water in the surrounding soil. As the dominant and efficient cause of loss was plainly excluded under the policy, the Fourth Department concluded that coverage was barred.

      5/04/10 Megafu v Tower Ins. Co. of New York
      Appellate Division, Second Department
      Location of the Claim was Not an Insured Location Under the Policy
      Plaintiffs claim was dismissed where Tower established, as a matter of law, that the location of the claim was not a covered premises under the policy. Where the claim fell outside of the scope of the policy, the burden then shifted to the plaintiff to raise an issue of fact as to the breadth of the insuring agreement. Here, plaintiff could not overcome that burden.

      4/30/10 Cooper v New York Central Mutual Fire Ins. Co.
      Appellate Division, Fourth Department
      Court Refuses to Dismiss Plaintiffs Contractual Claims on Statute of Limitations Grounds, but Dismisses Plaintiffs Extra-Contractual Claims
      New York Central moved to dismiss plaintiffs property damage claim on the basis of the two year suit limitation clause found within the policy. As with most homeowners policies, the policy at issue required the insured to commence legal action against New York Central within two years of the date of loss.

      Although plaintiffs lawsuit was commenced more than two years after the date of loss (and therefore in violation of the policy), the Appellate Division refused to dismiss the claim. Rather, the Court ruled that a question of fact existed regarding whether New York Centrals activities lulled the plaintiff into inaction.

      Further, the Fourth Department went on to deny New York Centrals motion to dismiss on the basis that plaintiff had failed to cooperate with the carriers investigation. Although the plaintiff did not provide certain documents requested by New York Central, she offered plausible reasons for not providing the same. As such, the Court held that her conduct did not rise to willful and avowed obstruction which is required to establish a denial on the basis of a failure to cooperate.

      However, all was not lost for New York Central, the Fourth Department dismissed plaintiffs claims for bad faith on the basis that the plaintiff failed to plead any facts which alleged that the carrier acted with gross disregard of the insureds interests. Plaintiffs claims for fraud were dismissed where her allegations were simply restatements of the breach of contract claim.

      In addition, plaintiffs General Business Law 349 claim was also dismissed. In so holding, the Fourth Department noted that the current claim was simply a contractual dispute that was unique to the individual parties in the instant litigation. Finally, plaintiffs claims for punitive damages were dismissed where there was no evidence of evil or reprehensible motives on the part of New York Central.

      Peiper's Point: With all due respect to the Court, we have a problem with its reasoning on the bad faith claim. The matter, as presented, is a first-party property damage claim. As such, bad faith claims are governed by the well-established Rocanova and NYU standard. However, in dismissing plaintiffs claims, the Court references the Pavia standard of gross disregard for the insureds interests. The Pavia standard, as all faithful readers of Coverage Pointers know, applies to third-party claims. As it turns out, the bad faith claim should have been dismissed under the Rocanova test as well. No harm, no foul, we guess.

      4/30/10 Dail v Merchants Mut. Ins. Co.
      Appellate Division, Fourth Department
      Statutory Toll for Death Precludes Merchants from Relying Upon its Two-Year Suit Limitation Clause
      Just as above, Merchants, this time, sought to dismiss Ms. Dails claim for first-party property damage on the basis that it was commenced more than two-years after the date of loss. In this case, however, the named insured died during the two year time to commence legal action. The Estate, thereafter, commenced the instant action approximately six months after the two-year suit period had expired.

      Ms. Dail argued that the CPLRs one year toll of statute of limitations after an claimants death applied to extend the time to commence the claim under the terms of the policy. In opposition, defendant argued that the two-year limitation was a condition precedent to coverage under the policy, and was not, as such, a statute of limitations. In applying the statutory toll, the Fourth Department noted that the two year limitations did not arise from the policy but rather from statute (Ins. Law 3404[e]). As such, plaintiffs claim was deemed timely, and permitted to proceed.

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

      Editors Introduction: From time to time, we are delighted to provide you summaries provided by excellent coverage practitioners from around the state. This week, we are fortunate to include, with permission, a summary of Second Circuit coverage case involving late notice, with the review provided by Max Gershweir of Tower Insurance. For long-time readers of our humble offering, you will recognize him as the recipient of many Attaboy Max accolades for his many successful coverage wins at the appellate level. Max even earns an attaboy for the Tower Insurance case decided at the lower court level and reported in Jen's Gems below. Max is a regular contributor to the New York Insurance group on LinkedIn that your editor organized and operates. Thanks Max:

      4/29/10 Continental Insurance Co. v. Atlantic Casualty Insurance Co.
      United States Court of Appeals for the Second Circuit
      Second Circuit Finds that Claimant's Notice, Given After Insured's Untimely Notice, May Preserve Rights Under Policy, Ignoring Legislative History
      In Continental Insurance Co. v. Atlantic Casualty Insurance Co., 09-2882-cv (2d Cir. Apr. 29, 2010), the court was faced with a situation in which the insured judgment debtor gave its insurer untimely notice of the subject accident, while the claimant-judgment creditor allegedly gave reasonably prompt notice to the insurer (after factoring in its alleged difficulty in ascertaining the insurer's identity), per its right under Insurance Law 3420(a)(3), but not until days after the insured's untimely notice. The Southern District Court found that the first notice controlled, and thus that since first notice came from the insured and was untimely, the claimant, whose secondary notice was "superfluous," was out of luck. The Second Circuit disagreed, finding that the claimant's notice must be judged on its own merits, but affirmed the order granting the defendant-insurer summary judgment on separate grounds.

      The Second Circuit's determination as respects notice probably comes as no surprise to state-court practitioners who have looked at this issue, since the Appellate Divisions, in quite a few opinions, have so found over the past three decades. Some federal district courts applying New York law on this subject, however, including obviously the court that rendered the subject order on appeal, had found otherwise, reasoning that any secondary notice is "superfluous" for notice purposes. See U.S. Liab. Ins. Co. v. Winchester Fine Arts Servs., Inc., 337 F.Supp.2d 435, 448 (S.D.N.Y. 2004); Mt. Vernon Fire Ins. Co. v. Orange Intercept, Ltd., No. CV-92-1986, 1992 WL 368085, *3 (E.D.N.Y. Nov. 19, 1992). Judge Lynch, who authored the Second Circuit opinion (and is a terrific judge), provides, by far, the most thorough and well-reasoned discussion of the subject in any court opinion, including a detailed recounting of state-court decisions addressing the issue and public-policy reasons supporting the court's finding.
      Specifically, apart form state-court precedent, the Second Circuit justified its conclusion as follows: (1) since 3420(a)(3) was intended to give claimants an independent right to recovery against tortfeasors' insurers through their diligence in giving notice, a rule allowing the insured's lack of such diligence to interfere with that right would undermine that intent; (2) a first-notice-controls rule would lead to the anomaly of a diligent claimant's right to recovery being cut off where the insured gives first-but-untimely-notice, even though there would have been no such cut-off had the insured given no notice at all; (3) a claimant's notice should be judged more liberally than an insured's based on the former's initial unfamiliarity with the insurer's identity, as per the long-held Lauritano rule.

      As thorough and well-reasoned as the court's determination is, however, its analysis is still not entirely complete. Absent from its discussion is any mention of 3420(a)(3)'s (formerly 167(c)(1)) legislative history.  The New York Court of Appeals, in Bazar v. Great American Indemnity Co., 306 N.Y. 481, 488 (1954) (dictum), recounted that history, which contravenes the Second Circuit's finding, as follows:

      [T]he revisers had in mind certain supposed cases where an insured for some reason might not give notice to the company but where the injured person might give the insurer notice, and that the revisers were willing to provide that, if the insured gave no notice, notice from the injured person would be required to be in writing. Thus, all concerned were talking about the new proposed statutory law to the effect that notice requirements would be satisfied by the injured person giving a notice to the company when the insured had given no notice.

      The Appellate Divisions, in much-later cases addressing this issue, evidently lost sight of this legislative history, and the Court of Appeals' recounting of it. One would have hoped, however, that Judge Lynch, who clearly took a much closer look at this issue, would not have done so. It would have been interesting, at least, to see how Judge Lynch would have balanced, on the one hand, the court's belief that, under the statute, a claimant's later-but-reasonably-prompt notice should effectively cancel out the insured's earlier-but-untimely notice - and the state-courts' concurrence with that belief - with this divergent legislative history, on the other.

      Guest Editor: Max Gershweir, Managing attorney, Law Office of Max W. Gershweir

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

    5/7/10 Zevrone Realty Corp. v. New York Mar. & Gen. Ins. Co.
    Supreme Court, Bronx County
    Court Holds that Notice of Claim Was Late; However, Only One Out of Three Insurers Timely Disclaimed Coverage as to Late Notice
    A young woman was sexually assaulted in a building owned by plaintiff. After the assault, police were immediately contacted. In investigating the matter, the police interviewed the building superintendent and requested to review surveillance footage. According to the building superintendents testimony, he promptly called the property manager to advise him that police were present and wanted to take the buildings video equipment as part of their investigation.

    After this initial encounter, the building superintendent did not speak with police again until six months to a year later when he was contacted about returning the video equipment. On that same day, the building superintendent spoke with the victims mother who told him the details of the assault and indicated that her daughter wasnt too well in the school. And that she felt bad living [in the Building].

    In conflicting testimony, the property manager testified that he received no notice of the assault until over a year after the incident when he received a letter from the young womans attorney providing notification of an impending lawsuit. Although he initially denied speaking with the building superintendent about the assault prior to receipt of the letter, he eventually admitted that he was aware that the police requested surveillance tapes; however, he asserted that he thought the tapes were requested in order to investigate an incident involving a girl and her ex-boyfriend.

    The companys president testified that he received no notice of the incident until he was contacted by the property manager about the letter and the lawsuit. He further testified that after receipt of the letter he promptly provided notice to the buildings three insurers.

    Thereafter, each insurer declined coverage citing late notice of claim. Plaintiff commenced this declaratory judgment action against all its insurers. Defendants then moved for summary judgment. In response, plaintiff asserted its good faith belief in nonliability.

    The court held that plaintiffs claim of nonliability was unreasonable given the utter lack of investigation into the assault. The assertion, by the building superintendent, that he did not see how the building owner was involved was insufficient as there was no investigation into the incident. Additionally, the court noted that plaintiff never followed up with police, discovered whether a crime had been committed or determined whether injuries were sustained.

    However, the court only granted two out of the three insurers motions for summary judgment. It granted the motion of the insurer that disclaimed coverage for late notice four days after receipt of the letter. However, it denied the other insurers motions stating that a disclaimer 98 days later was unreasonable as a matter of law and a disclaimer 28 days later without any explanation for the delay was also unreasonable.

    5/3/10 Tower Ins. Co. of N.Y. v. Classon Heights LLC
    Supreme Court, New York County
    Disclaimer Upheld Where Building Manager Was Notified On The Date of the Incident that the Injured Party Fell and Was Taken Away in an Ambulance
    This case arises out of an October 30, 2006 slip and fall on a sidewalk owned, managed and/or controlled by the insured.

    On March 26, 2007, five months after the slip and fall, the insured notified its insurer of the incident. The insurer disclaimed coverage citing late notice and commenced this declaratory judgment action. It then moved for summary judgment. In support of its motion, the insurer submitted an affidavit of its investigator which contained transcribed statements of the buildings porter and manger. The porter allegedly stated to the investigator that after the incident he called the office to tell them what happened. Likewise, the manager stated that he first became aware of the accident on October 30, 2006 after the porter told him that the injured party fell out of her wheelchair.

    In opposition, the insured argued that the motion should be denied because it was predicated solely on unsworn statements. Further, it argued that it had a good faith belief in nonliability.

    The court granted the motion stating that the notice was late. It reasoned that it could consider the statements allegedly made by the porter and manager because the insured submitted a sworn affidavit of the manager that corroborated the statements. It also reasoned that the evidence established that the porter witnessed the incident, saw her being taken away in an ambulance and conveyed this information to the building manger on the date the incident occurred. In such a case, no prudent person could have reasonably believed himself to be immune from potential civil liability under the circumstances. Additionally, the court noted that the insurer was not estopped from denying coverage based on its representation of the insured in the underlying action because of a letter issued to the insured notifying it that the insurer was only providing it with a defense pending resolution of the instant motion.
    Editors Note: We like this one, assumption of defense did not preclude carrier from walking away after late notice success. Attaboy Max.

    4/30/10 Bonded Waterproofing Servs., Inc. v. Anderson-Bernard Agency, Inc.
    Supreme Court, Richmond County
    Court Denies Motion to Dismiss Where Evidence Indicated that Insurer Previously Provided Coverage for Work in the Five Boroughs of New York City
    This case arises out of a trip and fall on a premises in Jamaica, New York. The injured party commenced a lawsuit naming, among others, the plaintiff. He alleged that plaintiff performed work on the premises including installation of drains, pumps and general waterproofing work in a negligent fashion contributing to his accident.

    Plaintiff sought coverage for the lawsuit from its insurer. The insurer disclaimed citing a policy exclusion for work in the five boroughs of New York City. Accordingly, plaintiff filed this third-party action against its insurance broker who procured the policy and its insurer. The court severed the action and defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(1) and (a)(7) and for summary judgment.

    In support of their motion to dismiss, defendants provided proof that there were no factual allegations contained in the complaint which supported the conclusion that plaintiff was covered for work conducted in the five boroughs. In response, plaintiff asserted that defendants had previously provided coverage for this work and that defendants were aware that it worked in these locations.

    The court held, based on evidence in the form of a certificate of insurance issued by defendants which indicated coverage for work on a jobsite in Queens, New York, that there was a clear contradiction on the defendants behalf as to whether they covered the plaintiff for work in the boroughs. Therefore, as factual issues remained, the court denied both motions, but granted leave to renew the motion to dismiss after completion of discovery.

    4/29/10 J.T. Magen & Co., Inc. v. Pennsylvania Lumbermens Mut. Ins. Co.
    Supreme Court, New York County
    Court Holds that Injury to a Subcontractors Employee Arose Out of Its Work
    This case arises out of a fall on a construction site. Plaintiff, the general contractor, entered into a subcontract with Mill Wright Woodwork & Installers, Inc. for wood work on the project. The subcontract contained an insurance procurement provision requiring that plaintiff be named as an additional insured on a primary non-contributory basis. The subcontractor complied with the provision by naming plaintiff as an additional insured on the policy issued by defendant.

    An employee of the subcontractor was injured when he fell through a hole in the floor at the construction site. The employee commenced an action against, among others, plaintiff seeking damages for his injuries. Plaintiff then tendered its defense to defendant who disclaimed coverage.

    The policy provided that [t]he additional insured is covered for its vicarious liability for the acts or omissions of the named insureds ongoing construction operations. The additional insured is not covered for liability due to its independent acts or for any supervision of your work or the work of another person or organization. Notably, neither party denied that the accident resulted from the acts of another subcontractor. This other subcontractor was responsible for the work done beneath the floor surface, and the floor opening through which the injured party fell.

    Defendant disclaimed coverage asserting that the employees injuries were due to the work performed by the other subcontractor, not Mill Wright, and accordingly plaintiff was not entitled to coverage as an additional insured. In response, plaintiff argued that the claim was covered because the employee was working for Mill Wright at the time of the accident.

    The court held that defendants contention was without merit because injuries to an insureds employee while entering and leaving a worksite are deemed to have arisen out of their work. The court distinguished the case from the well known Court of Appeals case Worth, 10 NY3d 411 [2008], In Worth, the Court affirmed the precept that the focus [of the additional insured 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. According to the court, here, unlike in Worth, the employee was injured while entering the room in which he was performing work for his employer, Mill Wright. His accident was therefore directly connected to and arose out of Mill Wrights work.

    4/27/10 Dean v. Tower Ins. Co.
    Supreme Court, County of New York
    Court Determines that Homeowners Did Not Reside on Premises on the Date of Loss
    Plaintiffs, homeowners, went to an agency to obtain homeowners insurance for a property they intended to buy. They requested that the insurance commence on March 31, 2005, the date of closing.

    Thereafter, large scale termite damage was discovered in the home. Accordingly, the plaintiffs performed massive repairs on the building and did not move in on the scheduled date. On May 15, 2006, while they were still performing repairs, the property burned down.

    Defendant, the houses insurer, disclaimed citing the grant of coverage which provided that the policy covered the dwelling on the residence premises. Residence premises was defined as the one family dwellingwhere you reside. The insurer also asserted that plaintiffs engaged in concealment or fraud citing the policy application which stated that the premises was owner occupied. In support of its position, the insurer submitted an affidavit of its personal lines underwriting manager who attested that the insurer only writes homeowners coverage for owner occupied primary residence.

    In response, the plaintiffs argued that based on the disclaimer letter the insurer equated residency with occupancy and, as the premises was occupied at the time of loss, there was coverage. Also, plaintiffs asserted that the insurance application did not ask when they would move in, and they intended to move in after the repairs were complete.

    The court held that ownership of the house and presence in it to perform certain renovations along with a stated intent to live there was insufficient evidence of plaintiffs physical presence or permanency in order to demonstrate that they resided on the premises at the time of loss. Therefore, defendant was entitled to summary judgment. Notably, the court rejected the plaintiffs argument that the insurer, based on its disclaimer letter, equated occupancy with residency and that it was bound by such a construction. As the motion was decided on this ground, the court did not address defendants misrepresentation argument.

    EARL'S PEARLS
    Earl K. Cantwell

    [email protected]

    ARBITRATION: THE BEST JUSTICE MONEY CAN BUY?

    As arbitration and other forms of ADR become more prevalent as means of resolving litigation, the vexing problems of the cost of arbitration, and who bears the cost of arbitration, have risen to the forefront. The New York State Court of Appeals recently had occasion to review a case commenting upon the grounds and bases for arbitration, the interplay of arbitration statutes and agreements, and the question whether the cost of arbitration can in effect void the arbitration provision, or result in some modification or cost shifting.

    The Court of Appeals decided the case of Brady v. The Williams Capital Group, L.P., 2010 N.Y. Slip Op. 2434 (March 25, 2010), and reviewed the issue whether a clause providing for equal sharing of arbitration fees and costs precluded an employee from pursuing statutory rights in the arbitral forum. The Court of Appeals set forth general standards for reviewing such a dispute, and remanded the case to the lower court for findings to determine whether the employee was financially able to share equally in the arbitration costs.

    Ms. Brady was employed by The Williams Capital Group to sell fixed income securities. The company manual provided that disputes would be arbitrated and the parties would share equally in the fees and costs of the arbitrator. As these things go, in 2005, Ms. Bradys employment was terminated and the limited decision notes indicate that her earnings in the five years prior to termination ranged from $100,000 to $405,000.

    In December 2005, Ms. Brady filed a Demand for Arbitration with the American Arbitration Association claiming that the defendant terminated her employment based on race and/or sex in violation of the civil rights laws. The employee also asserted claims under the New York Executive Law and New York City Civil Rights Law. An interesting complication was that at the time she filed the petition, the AAA rules required employers to pay all employment arbitration expenses (sometimes referred to as the AAA Employer Pays Rule).

    Much legal wrangling ensued. The AAA supported Ms. Bradys position that she should not have to pay one-half of the estimated arbitration fees which amounted to $42,300 on first deposit. The company refused to pay the full amount of the arbitrators compensation, citing the arbitration agreements. AAA cancelled the arbitration, so Ms. Brady sued in court seeking to compel the company to pay the arbitrators fees, or compel AAA to enter a default judgment against the company for failing to comply with the AAA Rules. Supreme Court dismissed the petition arguing that Ms. Brady could afford to pay one-half of the arbitrators compensation. However, in a 3-2 decision, the Appellate Division reversed and directed the company to pay the entire arbitration fee, subject to possible later reallocation of costs by the arbitrator. The majority held that the employee met her burden of establishing that the projected arbitration costs were so high as to discourage her from asserting state and federal statutory rights in arbitration.

    The Court of Appeals modified the order of the Appellate Division and remitted the matter to Supreme Court for a hearing concerning the employees financial capacity to initiate and bear the cost of arbitration.

    The Court of Appeals easily disposed of one initial argument and held that the terms of the parties direct contract and Arbitration Agreement trumped the AAA rules. Therefore, in theory, the share the cost provision of the arbitration agreement was controlling.

    The Court of Appeals noted that the lower courts had not really developed a record as to whether the employee could pay her share of the arbitration fee, or whether requiring her to incur such costs would preclude or discourage her from pursuing the arbitration.

    The Court of Appeals looked to Federal Court cases concerning standards by which such an analysis would be undertaken. Federal cases have recognized that the existence of large arbitration fees and costs may preclude or discourage litigants from effectively vindicating federal statutory rights in arbitration, a conclusion which is at odds with the broad public policy, to some extent incorporated in statutes, favoring arbitration. The federal cases hold that a party bears the burden of showing that the amount or likelihood of incurring arbitration costs would deter the party from arbitrating a claim. Speculative arguments, or allegations of prohibitive cost, are not sufficient to justify invalidation or modification of an arbitration agreement.

    Based upon these federal precedents, the Court of Appeals held that the issue of a litigants financial liability can only be resolved on a case by case basis, and that the inquiry should focus on the following questions:

    1. Whether the litigant can pay the arbitration fees and costs;
    2. What is the expected cost difference between arbitration as opposed to litigation in court; and
    3. Whether the cost differential between court and arbitration is so marked or substantial as to deter bringing claims in the arbitration forum.

     

    Since the Court of Appeals remitted the matter for a hearing and development of a further record, it (conveniently) did not have to decide what the remedy would be if the equal share arbitration provision was found to be invalid or unenforceable to some extent. It did direct that, if the Supreme Court made such an initial finding, it had to decide in the first instance whether to sever the clause and enforce the rest of the arbitration agreement, or offer the employee the choice of accepting some modification to the arbitration agreement or proceeding with a lawsuit in court.

    The Brady decision authored by Judge Theodore T. Jones was unanimous at the Court of Appeals.

    This decision injects an entire new issue and layer of complication into the arbitration process. Many arbitration agreements contain such equal sharing provisions, or they are silent on the subject implicitly assuming that the parties will share arbitration costs and expenses equally. As noted in the Brady case and other recent commentary, the costs of arbitration have escalated in recent years to the point where it is not unusual to have advance and ongoing arbitration costs of tens of thousands of dollars. This has led attorneys and companies to re-evaluate whether arbitration is truly less expensive, less time consuming and more efficient than litigation. It seems that one factor may simply be the cost of the arbitration and whether, for example, $42,000 plus is simply at an outer or excessive range for an initial arbitration deposit.

    Under the Brady decision, there is now a further complication if one party, presumably a party with lesser resources, objects to proceeding in arbitration or paying one-half of the costs. That contention may have to be litigated and resolved in the first instance in the courts and not determined initially, for example, by the arbitration forum (NASD, AAA, American Health lawyers, FINRA, etc.) or the arbitrators themselves. One limitation may be, however, that such an argument might be entertained only if the arbitration involves some significant state or federal constitutional or statutory rights which are being repressed by onerous arbitration costs. The argument would seem to be non-existent, and certainly less persuasive, if the arbitration involved, for example, private contractual claims.

    The Brady case also indicates that in most cases a specific arbitration agreement or contract between the parties will likely take precedence over any general industry or arbitration forum rules and procedures. It is also interesting that the issue was resolved in the courts (all the way up to the Court of Appeals) and not by AAA or any designated arbitrator(s).

    However, in light of the Brady decision, one can expect litigants to resist arbitration, oppose arbitration, or oppose equal sharing of arbitration fees and expenses based upon some argument of excessive cost or disproportionate resources, particularly if any federal or state statutory or constitutional claims or defenses are implicated. If the employee in Brady, a highly paid investment broker (up to $405,000 per year) is claiming inability to pay half the arbitration fees, can others be far behind?

    This case may also suggest a future preference for one person arbitration panels as opposed to a three person panel, which obviously tends to drive up the costs.

    ACROSS BORDERS
    Courtesy of the
    FDCC Website
    www.thefederation.org

    5/11/10 Nationwide Mut.Ins. Co. v. Mortensen
    Second Circuit Court of Appeals

    In this Breach of Contract/Unfair Trade Practice Case, the United States Court of Appeals for the Second Circuit Held that Policyholder Information Compiled by Insurance Agents Does Not Constitute Protected Trade Secrets or Confidential Information Belonging to Nationwide.

    This matter involves an appeal from the United States District Court for the District of Connecticut dismissing claims and counterclaims related to the retention of policyholder information by insurance agents after they terminated their exclusive agency agreement with Nationwide Mutual Insurance. At issue was whether or not policyholder information compiled by the insurance agents constituted protected trade secrets or confidential information belonging to Nationwide. Here each defendant, when they began work as an insurance agent at Nationwide, had signed an agreement defining each defendants relationship with the company as that of an exclusive agent and independent contractor. Eventually, numerous agents decided to interview with other insurance companies. During these interviews, the agents allegedly shared information contained in Nationwides policyholder files concerning prices and other policyholder information. Nationwide filed the subject suit against these agents, and the agents counterclaimed. The District Court held that the policyholder files did not constitute trade secrets or confidential information protected by Connecticut law, and therefore rejected Nationwides trade secret and related claims. In affirming the District Courts decision, the Second Circuit stated that since the same information allegedly shared was readily available from another source, it did not qualify as a trade secret or confidential information as a matter of law. Also, the Second Circuit affirmed the dismissal of the agents counterclaims seeking deferred compensation due to their status as independent contractors, and affirmed the dismissal of the agents claims for breach of contract and unfair trade practices due to their inability to prove damages. Submitted by: by Robert T. Franklin and Tameika Lunn-Exinor (Franklin & Prokopik)


    5/04/10 Rodriguez v. Testa
    Connecticut Supreme Court
    Court Holds that Graves Amendment Preempts State Law Imposing Vicarious Liability on Vehicle Lessors and Therefore Affirms Summary Judgment for the Lessor

    The court considered whether 49 U.S.C. 30106,1 also known as the Graves Amendment, preempts a state law imposing vicarious liability on the lessor of an uninsured motor vehicle for damages caused by the negligent acts of the lessee. The trial court granted summary judgment to defendant Daimler Chrysler Financial Service America Trust. The plaintiff argued that the Graves Amendment is unconstitutional and, at any rate, does not preempt the state law at issue. The court held that the Graves Amendment preempts 14-154a under the facts of the case and that the Amendment is constitutional. Accordingly, it affirmed.
    Submitted by: Clark Cole and Matthew Shorey, Armstrong Teasdale LLP

    5/3/10 World Harvest Church, Inc. v. Guideone Mutual Ins. Company
    Georgia Supreme Court
    Georgia Supreme Court Holds Insurance Companies Must Unequivocally Reserve Rights Before Denying Coverage to Insured. Once Company Begins Defending Insured Without Reservation of Rights, It Is Estopped From Asserting a Non-Coverage Defense to Withdraw from Case Regardless of Prejudice

    The Supreme Court of Georgia answered two certified questions from the Eleventh Circuit Court of Appeals, finding GuideOne Mutual Insurance Co. was responsible for the ambiguities in its coverage and therefore could not deny coverage to its insured. Supreme Court of Georgia In November 2002, the SEC brought a civil recovery action against a church for $1.8 million of contributions that it received from donors participating in a Ponzi scheme. The churchs insurance company, after representing the church for over 10 months, denied coverage and withdrew from the case. The church hired its own counsel and ultimately settled the case for $1 million. It then sued the insurance company for breach of contract and duty to indemnify and defend. The district court found the insurance company could deny coverage even though it had not issued a written reservation of rights to the church because its sister company, under the terms of a separate policy, issued a reservation of rights to the church. The court also found that the insurance company withdrew from representation without prejudicing the church and that it had no duty to continue its defense because of a finding of non-coverage. On appeal in the Eleventh Circuit, the Court of Appeals certified three questions to the Supreme Court of Georgia, of which it answered only two. First, the Supreme Court held where a reservation of rights was not in writing, an insurance company is not deemed to have provided notice to its insured of the right to deny coverage simply because its sister company provided a notice regarding a different policy. Second, the Supreme Court decided that after representing the church for 10 months without providing a reservation of rights, the insurance company could not then assert a non-coverage defense, regardless of whether its insured could show prejudice. The decision extends the duties of insurance companies to timely interpret their policies and effectively communicate these findings with their insureds.
    Submitted by: Lonna J. Carter, Esq., MPH

    Reported Decisions

    New Hampshire Insurance Company v. Bobak


    Appeal from an order of the Supreme Court, Erie County (Joseph G. Makowski, J.), entered July 2, 2008 in a proceeding pursuant to CPLR article 75. The order denied the petition seeking to stay arbitration.

    GOLDBERG SEGALLA LLP, BUFFALO (PAUL D. MCCORMICK OF COUNSEL), FOR PETITIONER-APPELLANT.
    THE COSGROVE LAW FIRM, BUFFALO (EDWARD C. COSGROVE OF COUNSEL), FOR RESPONDENT-RESPONDENT.

    It is hereby ORDERED that the order so appealed from is reversed on the law without costs and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following Memorandum: Adam Bobak, a respondent in appeal No. 1 and the petitioner in appeal No. 2, commenced a personal injury action in Pennsylvania seeking damages for injuries he sustained as a result of a motor vehicle accident in that state. He subsequently submitted a claim for supplemental uninsured/underinsured motorist (SUM) benefits pursuant to his employer's insurance policy with New Hampshire Insurance Company (NHIC), the petitioner in appeal No. 1 and a respondent in appeal No. 2. Bobak sought arbitration following the denial of his claim by NHIC. On a prior appeal we modified the order, granting in part the petition of AIG Claims Services, Inc. (AIG), a respondent in appeal No. 2, seeking on behalf of NHIC a permanent stay of arbitration pursuant to CPLR article 75 (Matter of AIG Claims Servs., Inc. v Bobak, 39 AD3d 1178). In our decision, we concluded that the " [a]rbitration should be stayed, not permanently, but pending the determination of the issue[s] of insurance coverage' " (id. at 1179).
    While that prior appeal was pending in this Court, NHIC commenced an action in Beaver County, Pennsylvania seeking a declaration with respect to the insurance coverage issues. Based on the record before us, it appears that the Pennsylvania action is still pending. Nevertheless, an arbitration date was scheduled at Bobak's request. NHIC then commenced a second proceeding pursuant to CPLR article 75 seeking to stay that arbitration based, inter alia, on the ground that it would be conducted in violation of this Court's prior order staying the arbitration pending the determination of the insurance coverage issues. In appeal No. 1, NHIC appeals from an order denying the petition in that second proceeding. Based on that order, the arbitration was conducted and, in appeal No. 2, NHIC, along with AIG and another entity, appeal from a judgment that, inter alia, confirmed the arbitration award of $1,028,524.40 to Bobak.
    We agree with NHIC in appeal No. 1 that Supreme Court erred in failing to comply with our order staying the arbitration pending a determination of the insurance coverage issues. "Trial courts are without authority to vacate or modify orders . . . or to reverse holdings of this [C]ourt" (Maracina v Schirrmeister, 152 AD2d 502, 502-503; see Wiener v Wiener, 10 AD3d 362; Webb v Zogaria, 4 AD3d 757). The language of our order was unequivocal and, in any event, "if there [were] any uncertainty as to the effect of the language employed, the remedy [would be] an application to [this C]ourt to amend it" (City of New York v Scott, 178 Misc 2d 836, 843).
    Contrary to the dissent, we are unpersuaded that the limited record in this case supports the court's determination that "NHIC unreasonably delayed the determination of the issues of insurance coverage and thereby waived its right to seek a further stay of the arbitration." There is no evidence in the record concerning the reasons for the delay in resolving the Pennsylvania declaratory judgment action, and thus we may not conclude that NHIC is to blame for any delay. Bobak's contention at oral argument of this appeal that state and local rules prohibit him from advancing the case is without merit. Pursuant to Pennsylvania law, any party may move to dismiss an action as abandoned (see generally Pennsylvania Rules of Jud. Admin. rule 1901; Jacobs v Halloran, 551 Pa 350, 354-355, 710 A2d 1098, 1100-1101), and the Beaver County Local Rules of Civil Procedure permit any party to move to schedule a case management conference (see Beaver County Local Rules Civ Pro LR 212.4). We therefore reverse the order in appeal No. 1.
    With respect to appeal No. 2, NHIC contends that the court erred in confirming the arbitration award because the award violated public policy and the arbitrator exceeded his powers. We note at the outset that NHIC preserved that contention for our review by AIG's commencement of the first proceeding pursuant to CPLR article 75, on behalf of NHIC, seeking a stay of arbitration and by seeking a stay of arbitration in this Court pending the issuance of our decision with respect to the appeal of that order prior to participating in the arbitration (cf. Matter of Commerce & Indus. Ins. Co. v Nester, 90 NY2d 255, 261-262; Matter of Windsor Group v Gentilcore, 8 AD3d 582).
    Based on the record before us, we are unable to determine whether public policy prohibits confirmation of the arbitration award or whether the arbitrator exceeded his powers. "[SUM] coverage will be available [only] where the limits of liability of the motor vehicle liable for the damages are in a lesser amount than the bodily injury liability insurance limits of coverage provided by the insured's polic[ies]" (Matter of State Farm Mut. Auto. Ins. Co. v Roth, 206 AD2d 376, lv denied 84 NY2d 812; see Insurance Law 3420 [f] [2] [A]; Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 953; Matter of Allstate Ins. Co. v DeMorato, 262 AD2d 557). NHIC contends that Reliance Insurance Company (Reliance) issued a primary policy covering the vehicle of the individual responsible for the motor vehicle accident and that Travelers Insurance Company (Travelers) issued an excess policy covering that vehicle. NHIC further contends that the limits of those policies exceed its SUM coverage. Bobak, however, contends that Reliance provided no coverage of the vehicle at issue because it became insolvent, that the Ohio Insurance Guaranty Association has assumed responsibility for Reliance's liabilities but will provide coverage only that is excess to SUM coverage, and that Travelers has disclaimed liability. There is no documentary or other evidence in the record upon which we are able to rely to assess the accuracy of those contentions. It is well settled that "the threshold issue of whether the offending vehicle was insured on the date of the accident is for the court to determine prior to arbitration of a claim for [SUM] benefits" (Matter of American Intl. Ins. Co. v Dibua, 13 AD3d 365, lv denied 4 NY3d 706; see Matter of Empire Mut. Ins. Co. [StroudBoston Old Colony Ins. Co.], 36 NY2d 719, 720-721). Here, as noted, there has been no resolution of that threshold issue, and the record is not sufficient to permit this Court to determine that issue and thus to assess the propriety of the judgment in appeal No. 2. We therefore hold that appeal and reserve decision. We remit the matters in appeal Nos. 1 and 2 to Supreme Court for determination of the issues of insurance coverage (see generally Matter of Mercury Ins. Group v Ocana, 46 AD3d 561, 563; Matter of Allstate Ins. Co. v Anderson, 303 AD2d 496, 497-498), inasmuch as it appears that there has been no final determination of those issues in the Pennsylvania declaratory judgment action. We direct the court upon remittal to join all necessary parties (see generally Matter of Eagle Ins. Co. [VillegasState Farm Mut. Auto. Ins. Co.], 307 AD2d 879), and to conduct a framed-issue hearing to determine the issues of insurance coverage (see generally Matter of General Assur. Co. v Rahmanov, 56 AD3d 332, 333; Matter of Travelers Indem. Co. v Fernandez, 55 AD3d 746, 748). We further direct the court upon remittal in appeal No. 1 to make a new determination of the petition seeking a permanent stay of arbitration.
    All concur except Martoche, J.P., and Green, J., who dissent and vote to affirm in the following Memorandum: We respectfully dissent. As noted by the majority, we concluded on a prior appeal in this case with respect to the first petition seeking to stay the arbitration in question that the " [a]rbitration should be stayed, not permanently, but pending the determination of the issue[s] of insurance coverage' " in a declaratory judgment action commenced in Pennsylvania by New Hampshire Insurance Company (NHIC), the petitioner in appeal No. 1 and a respondent in appeal No. 2 (Matter of AIG Claims Servs., Inc. v Bobak, 39 AD3d 1178, 1179). At the time of the prior appeal, the Pennsylvania action had been pending for over five months. Another 14 months had elapsed when NHIC commenced the second proceeding in New York seeking to stay the arbitration. NHIC does not dispute that it did nothing further, in the Pennsylvania action or otherwise, to resolve the insurance coverage issues. Contrary to the view of the majority, we conclude in appeal No. 1 that Supreme Court properly interpreted our prior order when it denied NHIC's petition in the second proceeding to stay the arbitration. "A stay can be a drastic remedy, on the simple basis that justice delayed is justice denied' " (660 Riverside Dr. Aldo Assoc. v Marte, 178 Misc 2d 784, 786). The stay in our prior order was not of indefinite duration and was not intended to allow NHIC to benefit from its inactivity. Indeed, in our view the court properly concluded that NHIC unreasonably delayed the determination of the issues of insurance coverage and thereby waived its right to seek a further stay of the arbitration (see Progressive Northeastern Ins. Co. v Vandusen, 22 Misc 3d 1128[A], 2009 NY Slip Op 50321[U], *2-3; see also Matter of Connecticut Indem. Ins. Co. [Laperla], 21 AD3d 1262).
    We further conclude that, contrary to the view of the majority in appeal No. 2, the court properly confirmed the arbitration award. NHIC "did not meet its heavy burden of demonstrating that the arbitrator's award is violative of a strong public policy . . . [or] totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power" (Matter of Buffalo Professional Firefighters Assn. Local 282 [City of Buffalo], 12 AD3d 1087, 1088 [internal quotation marks omitted]). We therefore would affirm the order and the judgment in appeal Nos. 1 and 2, respectively.

    Progressive Halcyon Ins. Co. v. Giacometti


    Appeal and cross appeal from a judgment (denominated order) of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered January 28, 2009 in a declaratory judgment action. The judgment, among other things, denied in part plaintiff's motion for summary judgment.

    RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA, LLC, BUFFALO (KEVIN J. KRUPPA OF COUNSEL), FOR PLAINTIFF-APPELLANT-RESPONDENT.
    MATTAR, D'AGOSTINO & GOTTLIEB, LLP, BUFFALO (JONATHAN SCHAPP OF COUNSEL), FOR DEFENDANTS-RESPONDENTS-APPELLANTS.
    JOHN J. DELMONTE, NIAGARA FALLS, FOR DEFENDANT-RESPONDENT AMY G. GIACOMETTI.
    LAW OFFICE OF JOHN J. FROMEN, BUFFALO, MAGAVERN MAGAVERN GRIMM LLP (EDWARD J. MARKARIAN OF COUNSEL), FOR DEFENDANT-RESPONDENT MARLEY M. FIOCCO.
    HAGELIN KENT LLC, BUFFALO (VICTOR M. WRIGHT OF COUNSEL), FOR DEFENDANT-RESPONDENT STATE FARM INSURANCE COMPANY. It is hereby ORDERED that the judgment so appealed from is modified on the law by granting that part of the motion of plaintiff with respect to defendant Amy G. Giacometti and granting judgment in favor of plaintiff as follows: It is ADJUDGED and DECLARED that plaintiff is not obligated to defend or indemnify defendant Amy G. Giacometti in the underlying personal injury actions, by denying that part of the motion with respect to defendants Vehicle Asset Universal Leasing Trust, General Motors Acceptance Corporation and Central Originating Lease Trust and vacating the declaration, by granting in its entirety the cross motion of defendants Vehicle Asset Universal Leasing Trust, General Motors Acceptance Corporation and Central Originating Lease Trust and granting judgment in favor of those defendants as follows: It is ADJUDGED and DECLARED that plaintiff is obligated to defend and indemnify those defendants in connection with the negligent entrustment cause of action in the underlying personal injury action, and as modified the judgment is affirmed without costs, and the matter is remitted to Supreme Court, Niagara County, for further proceedings in accordance with the following Memorandum: These three consolidated appeals arise from an automobile accident that occurred on an interstate highway in North Carolina. Shannon M. Doyle, a defendant in appeal Nos. 2 and 3, was driving a vehicle in which there were two passengers: Amy G. Giacometti, a defendant in appeal No. 1 and the plaintiff in appeal No. 2, and Marle M. Fiocco, a defendant in appeal No. 1 (in which she was incorrectly sued as Marley M. Fiocco) and the plaintiff in appeal No. 3. For reasons that are in dispute, Doyle steered the vehicle to the left, at which time Giacometti grabbed the steering wheel and pulled it to the right. The vehicle thereafter went off the road, became airborne, and crashed among trees, injuring the three women. Doyle had leased the vehicle from Vehicle Asset Universal Leasing Trust, General Motors Acceptance Corporation (GMAC), and Central Originating Lease Trust, defendants in appeal Nos. 1 and 3 (collectively, GMAC defendants), and the vehicle was insured by Progressive Halcyon Insurance Company (Progressive), the plaintiff in appeal No. 1.
    Giacometti commenced a personal injury action against Doyle in Niagara County (appeal No. 2), and Fiocco commenced a personal injury action in the same county against Doyle, the GMAC defendants, and Giacometti (appeal No. 3). Doyle also commenced a personal injury action against Giacometti in the same county, the status of which cannot be discerned from the record before us. Finally, Progressive and Doyle initially commenced a declaratory judgment action in the same county, but Progressive thereafter filed an amended complaint omitting Doyle as a plaintiff (appeal No. 1), seeking judgment declaring that it is not obligated to defend or indemnify Giacometti in the underlying personal injury actions or the GMAC defendants in connection with Fiocco's cause of action asserting that they negligently entrusted the vehicle to Doyle. By the judgment in appeal No. 1, Supreme Court, inter alia, denied that part of Progressive's motion for summary judgment declaring that Progressive is not obligated to defend or indemnify Giacometti, and denied the cross motion of the GMAC defendants for summary judgment declaring that Progressive is obligated to defend and indemnify them in connection with the negligent entrustment cause of action in the underlying personal injury action commenced by Fiocco, and for summary judgment awarding them attorneys' fees incurred by them in their defense of the declaratory judgment action. Progressive and the GMAC defendants each appeal from parts of that judgment. In her appeals from the orders in appeal Nos. 2 and 3, Doyle contends that the court erred in denying her motions for summary judgment dismissing the complaint in appeal No. 2, as well as the complaint in appeal No. 3 against her.
    In appeal No. 1, we agree with Progressive that the court erred in denying that part of its motion for summary judgment declaring that it is not obligated to defend or indemnify Giacometti in the underlying personal injury actions. We therefore modify the judgment in appeal No. 1 accordingly. Progressive had disclaimed coverage with respect to Giacometti in those actions on the ground that Giacometti was not an insured person within the meaning of the terms of the policy issued to Doyle. That policy defines an "insured person" in relevant part as "any person with respect to an accident arising out of that person's use of a covered vehicle with the express or implied permission of you or a relative." We agree with Progressive that it met its burden of establishing that Giacometti had neither the express nor the implied permission of Doyle to use the vehicle. The evidence in the record, including the deposition testimony of Giacometti, establishes that she did not have express permission to take control of the steering wheel, and we further conclude on the record before us that Doyle did not impliedly consent to Giacometti's use of the vehicle in that manner (see Allstate Ins. Co. v Gill, 192 AD2d 1123; Electric Ins. Co. v Boutelle, 122 AD2d 332). The deposition testimony of Giacometti "that [s]he grabbed the wheel to prevent an accident does not create a question of fact on the issue of permissive use" (Allstate Ins. Co., 192 AD2d at 1123-1124). It is well settled that, "[w]here the provisions of [an insurance] policy are clear and unambiguous, they must be given their plain and ordinary meaning, and courts should refrain from rewriting the agreement' " (United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232; see Fulmont Mut. Ins. Co. v New York Cent. Mut. Fire Ins. Co., 4 AD3d 724, 725).
    We reject the further contention of Giacometti and State Farm Insurance Company, a defendant in appeal No. 1 (State Farm), that any use of a vehicle is with permission of the owner pursuant to the presumption in Vehicle and Traffic Law 388 (1). Initially, we agree with Giacometti and State Farm that Doyle, as the lessee of the vehicle for a period of more than 30 days, was an owner within the meaning of that statute (see 128, 388 [3]). Furthermore, it is well settled that "proof of ownership of a motor vehicle creates a rebuttable presumption that the driver was using the vehicle with the owner's permission, express or implied . . . Once the plaintiff meets its initial burden of establishing ownership, a logical inference of lawful operation with the owner's consent may be drawn from the possession of the operator . . . This presumption may be rebutted, however, by substantial evidence sufficient to show that a vehicle was not operated with the owner's consent" (Murdza v Zimmerman, 99 NY2d 375, 380 [internal quotation marks omitted]). Here, that presumption is inapplicable because it was overcome by substantial evidence that the use was without the permission of Doyle, and we therefore conclude that the court erred in denying that part of Progressive's motion.
    We agree with the GMAC defendants in appeal No. 1, however, that the court erred in granting that part of Progressive's motion for summary judgment declaring that Progressive is not obligated to defend or indemnify them in connection with the negligent entrustment cause of action against them in the underlying personal injury action commenced by Fiocco and in denying as moot that part of their cross motion for summary judgment declaring that Progressive is obligated to defend and indemnify them in connection with that cause of action. We therefore further modify the judgment in appeal No. 1 accordingly. Although the court by its order in appeal No. 3 ultimately granted the motion of the GMAC defendants for summary judgment dismissing Fiocco's complaint against them, including the negligent entrustment cause of action against them, Progressive had commenced the action in appeal No. 1 before that motion was granted, and the GMAC defendants expended, inter alia, significant attorneys' fees in their defense of that cause of action before it was dismissed against them. "It is well established that a liability insurer has a duty to defend its insured in a pending lawsuit if the pleadings allege a covered occurrence, even though facts outside the four corners of those pleadings indicate that the claim may be meritless or not covered" (Fitzpatrick v American Honda Motor Co., 78 NY2d 61, 63; see Petr-All Petroleum Corp. v Fireman's Ins. Co. of Newark, 188 AD2d 139, 142). Contrary to Progressive's contention, the fact "[t]hat the claimed negligence here is based upon the entrustment of the motor vehicle rather than, for example, its condition, in no way alters the unarguable fact that the claim arises out of the ownership and use of the vehicle" (Progressive Cas. Ins. Co. v Jackson, 151 Misc 2d 479, 483, affd 181 AD2d 1035). Thus, the GMAC defendants are entitled to indemnification from Progressive for their defense of Fiocco's negligent entrustment cause of action against them.
    Furthermore, with respect to the judgment in appeal No. 1, we note "that an insurer's responsibility to defend reaches the defense of any actions arising out of the occurrence,' and defense expenses are recoverable by the insured, including those incurred in defending against an insurer seeking to avoid coverage for a particular claim" (National Grange Mut. Ins. Co. v T.C. Concrete Constr., Inc., 43 AD3d 1321, 1322, quoting Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21). Therefore, "an insured who prevails in an action brought by an insurance company seeking a declaratory judgment that it has no duty to defend or indemnify the insured may recover attorneys' fees regardless of whether the insurer provided a defense to the insured" (U.S. Underwriters Ins. Co. v City Club Hotel, LLC, 3 NY3d 592, 598; see National Grange Mut. Ins. Co., 43 AD3d at 1322-1323). We therefore further modify the judgment in appeal No. 1 accordingly, and we remit the matter to Supreme Court to determine the amount of reasonable attorneys' fees to which the GMAC defendants are entitled in the declaratory judgment action following a hearing, if necessary (see National Union Fire Ins. Co. of Pittsburgh, Pa. v City of Oswego, 295 AD2d 905, 906-907).
    We reject the contention of Doyle in appeal Nos. 2 and 3 that she established her entitlement to summary judgment dismissing the Giacometti complaint as well as the Fiocco complaint in its entirety against her. We conclude that the negligent entrustment cause of action against Doyle in the Fiocco action is lacking in merit inasmuch as we have concluded that Doyle did not give Giacometti express or implied permission to take control of the steering wheel, and thus the court erred in denying that part of Doyle's motion in appeal No. 3. We therefore modify the order in appeal No. 3 accordingly. We further conclude, however, that the court properly denied that part of the motion of Doyle in appeal No. 2 for summary judgment dismissing the complaint and properly denied that part of her motion in appeal No. 3 for summary judgment dismissing the complaint against her, with the exception of the negligent entrustment cause of action. There are issues of fact on the record before us with respect to the complaint in appeal No. 2 and the remainder of the complaint in appeal No. 3 concerning Doyle's alleged negligence and whether such negligence caused the accident (see generally Huff v Rodriguez, 45 AD3d 1430, 1431; Chilberg v Chilberg, 13 AD3d 1089, 1090).
    We have considered the remaining contentions of the parties and conclude that they are without merit.
    All concur except Fahey, J., who dissents in part in accordance with the following Memorandum: I respectfully dissent in part. In my view, Supreme Court properly denied that part of the motion of plaintiff, Progressive Halcyon Insurance Company (Progressive), for summary judgment declaring that Progressive is not obligated to defend or indemnify defendant Amy G. Giacometti in the underlying personal injury actions. I therefore would affirm the judgment to the extent that it denied that part of Progressive's motion.
    "In determining a dispute over insurance coverage, we first look to the language of the policy . . . We construe the policy in a way that affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect' " (Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208, 221-222; see Raymond Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 5 NY3d 157, 162, rearg denied 5 NY3d 825). "As with the construction of contracts generally, unambiguous provisions of an insurance contract must be given their plain and ordinary meaning, and the interpretation of such provisions is a question of law for the court' " (Vigilant Ins. Co. v Bear Stearns Cos., Inc., 10 NY3d 170, 177). Where there are two reasonable but conflicting interpretations of the terms of an insurance policy, those terms are deemed ambiguous (see Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321, 326), and any issues involving coverage with respect to those terms are resolved in favor of the insured (see White v Continental Cas. Co., 9 NY3d 264, 267; Handelsman v Sea Ins. Co., 85 NY2d 96, 101, rearg denied 85 NY2d 924; Trupo v Preferred Mut. Ins. Co., 59 AD3d 1044, 1045).
    Here, the policy of insurance issued by Progressive provides that an "insured person" with respect to that part of the policy concerning liability to others is, inter alia, "any person with respect to an accident arising out of that person's use of a covered vehicle with the express or implied permission of you or a relative." In its letter to Giacometti disclaiming coverage, Progressive wrote that "[o]ur investigation of this incident reveals that at the time of the motor vehicle accident [in question], you were operating the covered vehicle without the express or implied permission of the [lessee], Shannon M. Doyle. As such, you do not meet the definition of an insured person' as defined in the policy."
    The fatal flaw in those statements is that "operation" of the vehicle by Giacometti is not at issue. Rather, at issue is, inter alia, Giacometti's use of a covered vehicle at the time of the accident. "Use" and "operation" of a motor vehicle are, of course, not interchangeable, inasmuch as "one who uses' a vehicle does not necessarily have to be operating' it" (8 Couch on Insurance 3d 111:31, at 111-56 - 111-57). The "use" of a vehicle "includes more than driving or riding in an automobile; it extends to utilizing the vehicle as an instrumental means to an end in any manner intended or contemplated by the insured. Operation' is interpreted more narrowly than use' and is defined as the exercise of direction and control over the vehicle necessary to move the vehicle from one point to another (i.e., driving the vehicle)" (id.).
    It is undisputed in this case that the incident giving rise to the underlying actions was an "accident" within the meaning of the policy, that the vehicle at issue is a "covered vehicle" within the meaning of the policy, and that Shannon M. Doyle, the lessee of the vehicle, is the "you" to whom the policy refers. Consequently, the review of the relevant policy provision necessarily turns on the definitions of the phrases "arising out of" and "express or implied permission," as well as the term "use." The policy does not define either of those phrases or that term.
    The phrase "arising out of" "has been interpreted by [the Court of Appeals] to mean originating from, incident to, or having connection with . . ., and requires only that there be some causal relationship between the injury and the risk for which coverage is provided" (Worth Constr. Co., Inc. v Admiral Ins. Co., 10 NY3d 411, 415 [internal quotation marks omitted]; see generally United States Fire Ins. Co. v New York Mar. & Gen. Ins. Co., 268 AD2d 19, 21-22). Thus, the phrase "arising out of" covers the facts of this case.
    The meaning of "express or implied permission" is fairly easy to ascertain. "Express permission," according to the Pattern Jury Instructions within the context of Vehicle and Traffic Law 388, "may consist of direct statements or acts by or on behalf of the owner that clearly show consent to such operation or use" (PJI 2:245). "Implied permission," again within the context of section 388, may be established by more general or circumstantial evidence that includes previous conduct between the parties with respect to the vehicle in question or other similar vehicles that suggests that there was consent to the use of the particular vehicle on the occasion in question (see id.; Atwater v Lober, 133 Misc 652, 654). In my view, as will be discussed infra, Giacometti was a permissive user inasmuch as she was traveling in the vehicle with Doyle's permission.
    The meaning of the term "use" is the pivotal issue in this case. The noun "use" has been defined as, inter alia, "the fact or state of being used," and the verb "use" has been defined as, inter alia, "to carry out a purpose or action by means of" (Webster's Third New International Dictionary 2523-2524 [2002]). In other words, "utilize" is a synonym of "use," which is precisely the conclusion reached in the Couch on Insurance treatise. There, as previously noted, "use" of a vehicle is defined as "includ[ing] more than driving or riding in an automobile; it extends to utilizing the vehicle as an instrumental means to an end in any manner intended or contemplated by the insured" ( 111:31, at 111-56).
    The definition of use in the Couch treatise is based on, inter alia, Maryland Cas. Co. v Marshbank (226 F2d 637) and Gering v Merchants Mut. Ins. Co. (75 AD2d 321). Addressing first the decision in Gering, I note that it sets forth an expansive definition of the term "use" of a vehicle, which "may include control of the vehicle while a flat tire is being repaired . . .; getting in and out of the car . . .; unloading a vehicle . . .; examining the vehicle's gas gauge while filling up its tank . . .; and supervising a [mentally challenged] child while being transported" (id. at 323; see Argentina v Emery World Wide Delivery Corp., 93 NY2d 554, 560). Maryland Cas. Co.is more relevant to the facts of this case. There, the United States Court of Appeals for the Third Circuit reached the following conclusion with respect to the meaning of the terms "use" and "operation" within the context of an automobile insurance policy:
    "The fallacy in the plaintiff's position is that the words use' and operation', which it seeks to equate as synonymous, are in this setting words of quite different meaning. [T]he use' of an automobile by an individual involves its employment for some purpose or object of the user while its operation' by him [or her] involves his [or her] direction and control of its mechanism as its driver for the purpose of propelling it as a vehicle. It is perfectly clear that an automobile is being used by an individual who is traveling in it regardless of whether it is being operated by him [or her,] or by another" (id. at 639).
    In my view, Maryland Cas. Co.and the Couch treatise correctly conclude that the "use" of a vehicle is the equivalent of the "utilization" of a vehicle, and thus I conclude that Giacometti "used" the vehicle at the time of the accident in the sense that the vehicle facilitated the travel giving rise to the accident. Those authorities notwithstanding, the conclusion that Giacometti used the vehicle at the time of the accident is a logical corollary to existing case law on the issue of use of the vehicle. To the extent that closing the door of a vehicle may be deemed to be part of the process of using or operating the vehicle (see Glouzwski v Ruback, 3 AD2d 692; Fireman's Fund Am. Ins. Co. v Olin of N.Y., 84 Misc 2d 504, 505), and to the extent that this Court has held that the act of opening a vehicle door to exit the vehicle constitutes "use and operation" of that vehicle pursuant to Vehicle and Traffic Law 388 (see Henderson v New York Cent. Mut. Fire Ins. Co., 56 AD3d 1141, 1142-1143; cf. Kohl v American Tr. Ins. Co., 59 AD3d 681, 682, lv granted 13 NY3d 711), it necessarily follows that utilizing a vehicle for acts that occur in the interimincluding the acts of a passenger traveling from one point to anothermay be fairly characterized as the "use" of that vehicle.
    In re Elrac, Inc. v. Exum


    Richard M. Kass, New York, for appellant.
    Carman, Callahan & Ingham, LLP, Farmingdale (Michael F.
    Ingham of counsel), for respondent.
    Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered March 11, 2009, granting the petition of Elrac, Inc., for a permanent stay of arbitration, unanimously reversed, on the law, without costs, and the petition denied.
    Where respondent, operating a motor vehicle owned by petitioner, who was his employer, was in an accident with an uninsured motorist, the court erred in granting the petition to stay arbitration of his uninsured motorist claim against petitioner. Petitioner argues that since the accident occurred in the regular course of respondent's employment, the exclusivity provisions of the Workers' Compensation Law preclude respondent from arbitrating a claim against his employer, who was self-insured (see Workers' Compensation Law 11). Notably, although petitioner is self-insured, it is required to provide uninsured motorist benefits pursuant to Insurance Law 3420[f][1] (see Matter of Allstate Insur. Co. v Shaw, 52 NY2d 818 [1980]; Matter of New York City Tr. Auth. [Thom], 70 AD2d 158 [1979], affd 52 NY2d 1032 [1981]). It follows that the right to obtain uninsured motorist protection from a self-insurer is no less than the corresponding right under a policy issued by an insurer (see Matter of Country-Wide Insur. Co. [Manning], 96 AD2d 471, 472 [1983], affd 62 NY2d 748 [1984]). Given the public policy of this State requiring insurance against injury caused by an uninsured motorist (see Matter of State Farm Mut. Auto. Ins. Co. v Amato, 72 NY2d 288, 292 [1988]), we find that a self-insured employer is required to provide mandatory uninsured motorist benefits to employees and that the Workers' Compensation Law does not preclude the employee from filing such a claim against the employer. Accordingly, the petition to stay arbitration should be denied.
    Furthermore, we reject the petition as untimely, as it was filed thirteen months after petitioner received respondent's notice of intention to arbitrate, long after expiration of the twenty-day time limitation of CPLR 7503[c].
    140 Broadway Property v. Schindler Elevator Company


    Melito & Adolfsen, P.C., New York, N.Y. (Ignatius John Melito and
    Rippi Gill of counsel), for appellant.
    Edward Garfinkel, Brooklyn, N.Y. (Fiedelman & McGaw,
    Jericho, N.Y. [Ross P. Masler], of counsel),
    for respondents.

    DECISION & ORDER
    In an action, inter alia, for a judgment declaring that the defendant Zurich American Insurance Company is obligated to defend and indemnify the plaintiffs in an underlying action entitled Ugur v 140 Broadway Property, LLC, pending in the Supreme Court, Kings County, under Index No. 25238/05, as an additional insured under a certain policy of insurance issued by the defendant Zurich American Insurance Company to the defendant Schindler Elevator Company, the defendant Zurich American Insurance Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated January 9, 2009, as denied its cross motion for summary judgment declaring that it is not obligated to defend and indemnify the plaintiffs in the underlying action.
    ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the cross motion of the defendant Zurich American Insurance Company for summary judgment declaring that it is not obligated to defend and indemnify the plaintiffs in the underlying action is granted, and the matter remitted to the Supreme Court, Kings County, for the entry of an appropriate declaratory judgment.
    The plaintiffs 140 Broadway Property and MSDW 140 Broadway Property, LLC (hereinafter together 140 Broadway), and their insurance company American Home Assurance Company, commenced this action for a judgment declaring that the defendant Zurich American Insurance Company (hereinafter Zurich) is obligated to defend and indemnify them as an additional insured under a general liability insurance policy issued by Zurich to the defendant Schindler Elevator Company (hereinafter Schindler) in an underlying personal injury action brought against 140 Broadway. The general liability insurance policy issued by Zurich to Schindler contained an additional insured endorsement which provided coverage to any entity Schindler had agreed by written contract to insure. According to the plaintiffs, their contract with Schindler required Schindler to obtain insurance coverage naming them as an additional insured. After the completion of discovery, the plaintiffs moved and Zurich cross-moved for summary judgment. By order dated January 9, 2009, the Supreme Court denied the motion and the cross motion.
    Zurich established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiffs do not qualify for additional insured status under the Zurich policy issued to Schindler, where the written contract between Schindler and 140 Broadway did not require Schindler to name 140 Broadway as an additional insured on its general liability coverage, as required by the Zurich policy. It is well settled that whether a third party is an additional insured under a policy is determined "from the intention of the parties to the policy, as determined from the four corners of the policy itself" (I.S.A. In N.J. v Effective Sec. Sys., 138 AD2d 681, 682). In the instant matter, the blanket additional insured endorsement in the Zurich general liability policy extends coverage to any entity "for whom the named insured [Schindler] has specifically agreed by written contract to procure bodily injury, property damage and personal injury liability insurance." Although the written contract between 140 Broadway and Schindler, the primary insured, requires Schindler to purchase several forms of insurance coverage, it does not expressly state that Schindler is required to name 140 Broadway as an additional insured on its general liability coverage. Consequently, the plain language of the written contract cannot be read to require Zurich to defend and indemnify 140 Broadway as an additional insured under the general liability policy issued to Schindler (see Trapani v 10 Arial Way Assoc., 301 AD2d 644, 647; see also School Constr. Consultants, Inc. v ARA Plumbing & Heating Corp., 63 AD3d 1029, 1030; Mangano v American Stock Exch., 234 AD2d 198, 199; Public Adm'r of Bronx County v Equitable Life Assur. Socy. of U.S., 198 AD2d 105, 106; Bishop v Port Auth. of N.Y. & N.J., 170 AD2d 565, 567).
    In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). Contrary to their contentions, the language of the Zurich policy is not ambiguous. In this regard, the question of whether an insurance policy is ambiguous is a matter of law to be determined by the court (see Breed v Insurance Co. of N. Am., 46 NY2d 351, 355; see also Mount Vernon Fire Ins. Co. v Creative Hous., 88 NY2d 347, 352). Accordingly, the Supreme Court should have granted Zurich's cross motion for summary judgment.
    Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Kings County, for the entry of a judgment declaring that Zurich is not obligated to defend and indemnify the plaintiffs in the underlying action (see Lanza v Wagner, 11 NY2d 317, 324, appeal dismissed 371 US 74, cert denied 371 US 901).
    Cragg v. Allstate Indemnity Company

    Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered October 27, 2008 in a declaratory judgment action. The judgment granted the motion of defendant Allstate Indemnity Corporation for summary judgment.

    LAW OFFICE OF JOHN J. FROMEN, BUFFALO, MAGAVERN MAGAVERN GRIMM LLP (EDWARD J. MARKARIAN OF COUNSEL), FOR PLAINTIFF-APPELLANT.
    GOLDBERG SEGALLA LLP, BUFFALO (KIMBERLY E. WHISTLER OF COUNSEL), FOR DEFENDANT-RESPONDENT.

    It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

    Opinion by Carni, J.: This appeal presents the issue, apparently one of first impression in New York, whether an insurer is required to defend or indemnify its insureds for the wrongful death of an insured person, here, plaintiff's decedent. We conclude that the plain language of the policy in question excludes coverage for bodily injury to an insured person when such coverage would enure to the benefit of an insured person. We therefore further conclude that Supreme Court properly granted the motion of defendant Allstate Indemnity Corporation (Allstate) for summary judgment seeking a declaration that it has no duty to defend or indemnify the remaining defendants, the grandparents and mother of plaintiff's decedent (collectively, defendants), in the underlying personal injury and wrongful death action commenced against them by plaintiff.
    Plaintiff's decedent sustained fatal injuries when she drowned in a swimming pool located at the residence of her grandparents, where she resided with her mother. Plaintiff, decedent's father, did not reside there. It is undisputed that plaintiff's decedent and defendants were insured under a homeowners' insurance policy issued by Allstate to defendant grandparents. Allstate disclaimed coverage for defendants under the policy pursuant to the provision excluding coverage for "bodily injury to an insured person . . . whenever any benefit of this coverage would accrue directly or indirectly to an insured person."
    Plaintiff thereafter commenced a wrongful death action against defendants in his capacity as administrator of his daughter's estate, and he was the sole distributee identified in the complaint. Decedent's mother defaulted in the action and, following an inquest on damages, plaintiff obtained a judgment against her in excess of $100,000 for his pecuniary loss. Plaintiff subsequently commenced this declaratory judgment action.
    We agree with the court that Allstate's policy excludes from coverage any claim to recover for the injury or resultant death of an insured person (see Brown v Madison, 139 Ohio App 3d 867, 870-871, 745 NE2d 1141, 1144). We reject the contention of plaintiff that the derivative nature of his wrongful death action renders the policy exclusion inapplicable. "By focusing on his independent right to bring a wrongful death claim, and in ignoring the plain language of the policy, which excludes liability coverage for bodily injury to an insured, including claims resulting from . . . death, [plaintiff] has lost sight of the relevant issue at hand, [i.e.], whether there is policy coverage that would trigger [Allstate's] duty to indemnify and/or defend the insured in the wrongful death lawsuit" (Cincinnati Indem. Co. v Martin, 85 Ohio St 3d 604, 608, 710 NE2d 677, 680). There is no coverage for the simple reason that a homeowners' insurance policy is essentially designed to indemnify the policy holders against liability for injuries sustained by noninsureds (see Brown, 139 Ohio App 3d at 871, 745 NE2d at 1144). Here, neither decedent nor her mother would be entitled to indemnification from Allstate for the injuries and death of decedent. Additionally, indemnification by Allstate on behalf of decedent's mother would result in the receipt by the mother, an insured, of the benefits of the policy in the form of the satisfaction of the money judgment obtained against her for the death of her daughter, also an insured. That result violates the plain language of the policy and thus is untenable. We therefore conclude that the court properly applied the case law of Ohio in support of its determination that an insurer has no duty to defend or indemnify its insured in a wrongful death action brought by a noninsured based upon the death of an insured where, as here, the policy excludes coverage for claims based on the death of an insured (see Cincinnati Indem. Co., 85 Ohio St 3d at 609, 710 NE2d at 680). Accordingly, we conclude that the judgment should be affirmed.
    In the Matter of Lincoln General Insurance Company v. Williams


    David J. Tetlak, Huntington Station, N.Y. (Albert J. Galatan of
    counsel), for proposed additional respondent-appellant.

    DECISION & ORDER
    In a proceeding, inter alia, pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, proposed additional respondent AutoOne Select Insurance Company appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Rios, J.), entered January 22, 2009, which, after a framed-issue hearing, inter alia, granted the petition.
    ORDERED that the order and judgment is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.
    On September 6, 2006, the respondent, Christopher Williams, was operating a vehicle insured by the petitioner when he was involved in a collision with a vehicle operated by Marina Villalta and owned by proposed additional respondent Jose E. Villalta. Williams asserted a claim for uninsured motorist's benefits under the petitioner's policy on the ground that Villalta's vehicle was uninsured, and sought to arbitrate that claim. Thereafter, the petitioner commenced this proceeding, inter alia, to permanently stay arbitration of the claim on the ground that the Villalta vehicle was insured by the appellant. The appellant contended that it had cancelled Villalta's policy at his request, effective August 29, 2006. The Supreme Court conducted a framed-issue hearing, granted the petition, and determined that the Villalta vehicle was insured by the appellant on the date of the accident. We reverse.
    Where an insured initiates a policy cancellation, the insurer is not required to send to the insured any notice of termination described in Vehicle and Traffic Law 313 (see Zulferino v State Farm Auto. Ins. Co., 123 AD2d 432, 432-433; Matter of Country-Wide Ins. Co. v Briones, 149 AD2d 313, 314). The insurer is required, however, to file a notice of termination with the Commissioner of the Department of Motor Vehicles within 30 days after the effective date of the cancellation (see Vehicle and Traffic Law 313[2]).
    At the framed-issue hearing, the petitioner met its initial burden of demonstrating that the appellant insured the Villalta vehicle on September 6, 2006, by proffering the police report containing the insurance code for the appellant (see Matter of Government Empls. Ins. Co. v McFarland, 286 AD2d 500). Thus, the burden shifted to the appellant to establish that it had validly cancelled the policy prior to the accident (see Matter of State Farm Mut. Auto. Ins. Co. v Roman, 239 AD2d 590, 591). In response, the appellant showed that, on August 20, 2006, it had received a policy cancellation request from Pro Insurance Agency, Inc., acting on Villalta's behalf, and that it cancelled the policy as requested. Moreover, the appellant showed that it complied with Vehicle and Traffic Law 313(2) by filing the notice of termination with the Commissioner of the Department of Motor Vehicles within 30 days of the effective date of the cancellation. Thus, the appellant's cancellation of Villalta's policy before the accident date was valid and required no further action on the part of the appellant (see Zulferino v State Farm Auto. Ins. Co., 123 AD2d at 433; Hanover Ins. Co. v Eggelton, 88 AD2d 188, 190, affd 57 NY2d 1020).
    Accordingly, the Supreme Court should have denied the petition and dismissed the proceeding.
    Henry v. Peguero


    Baker, McEvoy, Morrissey & Moskovits, P.C., New York
    (Stacy R. Seldin of counsel), for appellants.
    Mitchell Dranow, Mineola, for respondent.
    Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about June 1, 2009, which, upon plaintiff's motion to renew and reargue a prior order, same court and Justice, entered November 10, 2008, granting summary dismissal of the complaint, granted defendants' motion for summary judgment only to the extent of dismissing plaintiff's claims under the 90/180-day test, reversed, on the law, without costs, the motion denied and the order dismissing the entire complaint reinstated. The Clerk is directed to enter judgment accordingly.
    Plaintiff alleged that he was injured on September 27, 2006 when a Lincoln Town Car, owned and operated by defendants, struck the passenger side of his Honda Accord. Plaintiff did not seek immediate medical treatment but flew to Florida to visit a friend, initially consulting Dr. Bhupinder S. Sawhney on October 11, 2006, following his return. The doctor's November 20, 2006 report of an MRI of the lumbar spine notes a degenerative condition ("Facet arthropathy from L4 through S1 is evident bilaterally"), and a subsequent report by Dr. Shahid Mian states, "MRI scan of the cervical spine dated 10/12/06 report [sic] diffuse disc dessication." On the prior motion, defendants sought dismissal on the ground that plaintiff had failed to demonstrate that he sustained a serious injury (Insurance Law 5102[d]). Defendants tendered the report of a physician, Dr. Gregory Montalbano, who observed that the November 20, 2006 MRI, consistent with one performed on March 23, 2007, showed "degenerative changes which occur over time." Noting that "[s]ingle level acute disc herniations typically cause incapacitation for two or more weeks and require marked activity modification, bed rest and strong prescription pain medications," Dr. Montalbano concluded that plaintiff "suffers from a pre-existing condition of degenerative disc disease involving the lumbar spine at multiple levels which is reported for both scans."
    In opposition, plaintiff submitted an affirmation by Dr. Mian stating that "Mr. Henry's injuries are causally related to the motor vehicle accident of 9/27/06." However, in the order from which renewal was sought, Supreme Court agreed with defendants that plaintiff's "injuries and his subsequent surgery were due to a pre-existing degenerative condition," further finding that plaintiff had "failed to provide an adequate explanation for the gap in treatment."
    On his motion for renewal, plaintiff offered an addendum from Dr. Mian, which concluded that the "disc herniation of L4-5 and L5-S1 of the lumbar spine are causally related to the accident, and not from a pre-existing condition or long standing degenerative process." The addendum adds that "the impact from the subject accident plainly made the disc pathologies symptomatic."
    It is apparent that the supplemental medical statement was submitted in the attempt to remedy a weakness in plaintiff's opposition to defendants' original motion, endeavoring to relate the degenerative changes in plaintiff's spine to the motor vehicle accident. As this Court has emphasized, "Renewal is granted sparingly . . . ; it is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Matter of Beiny, 132 AD2d 190, 210 [1987], lv dismissed 71 NY2d 994 [1988]). It is statutorily decreed that a renewal motion "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2]) and that the application "shall contain reasonable justification for the failure to present such facts on the prior motion" (2221[e][3]). While the statutory prescription to present new evidence "need not be applied to defeat substantive fairness" (Lambert v Williams, 218 AD2d 618, 621 [1995]), such treatment is available only in a "rare case" (Pinto v Pinto, 120 AD2d 337, 338 [1986]), such as where liberality is warranted as a matter of judicial policy (see Wattson v TMC Holdings Corp., 135 AD2d 375 [1987] [leave to amend complaint]), and then only where the movant presents a reasonable excuse for the failure to provide the evidence in the first instance (see Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374, 377 [2001]).
    This construction is consistent with this Court's view that motion practice in connection with summary judgment should be confined to the limits imposed by CPLR 2214(b). As we have stated, "We perceive no reason to protract a procedure designed 'to expedite the disposition of civil cases where no issue of material fact is presented to justify a trial' (Di Sabato v Soffes, 9 AD2d 297, 299) by encouraging submission of yet another set of papers, an unnecessary and unauthorized elaboration of motion practice" (Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1992]). Thus, a deficiency of proof in moving papers cannot be cured by submitting evidentiary material in reply (see Migdol v City of New York, 291 AD2d 201 [2002]), the function of which is "to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion" (Dannasch v Bifulco, 184 AD2d 415, 417 [1992]). Nor can a deficiency in opposing a motion be cured by resorting to a surreply (see e.g. Garced v Clinton Arms Assoc., 58 AD3d 506, 509 [2009]).
    Supreme Court's grant of renewal in this matter contravenes this Court's policy of confining motion practice to the limits imposed by the CPLR. Neither of the statutory requirements for renewal was satisfied by plaintiff. Dr. Mian's addendum was not the result of any additional examination or medical testing; rather, the doctor's conclusion was based on the medical information previously available to him and could have been included in his original affidavit (see Cillo v Schioppo, 250 AD2d 416 [1998]). While, in appropriate circumstances, renewal may be predicated on previously known facts, it is settled that "[t]he movant must offer a reasonable excuse for failure to submit the additional evidence on the original motion" (Segall v Heyer, 161 AD2d 471, 473 [1990]), which plaintiff neglected to do.
    Even if this Court were to accept the proffered addendum, it is insufficient to rebut the finding of defendants' physician that plaintiff's affliction is degenerative in nature rather than the consequence of a serious injury causally related to the accident (see Lopez v American United Transp., Inc., 66 AD3d 407 [2009]; Eichinger v Jone Cab Corp., 55 AD3d 364 [2008]). While Dr. Mian's addendum states that the accident caused plaintiff's underlying pathology to become manifest, it utterly fails to explain the two-week gap between the accident and the commencement of treatment, which "interrupt[s] the chain of causation between the accident and claimed injury" (Pommells v Perez, 4 NY3d 566, 572 [2005]). Thus, we conclude that defendants submitted "evidence of a preexisting degenerative disc condition causing plaintiff's alleged injuries, and plaintiff failed to rebut that evidence sufficiently to raise an issue of fact" (id. at 579).
    All concur except Saxe and Manzanet-Daniels, JJ. who dissent in a memorandum by Manzanet-Daniels, J. as follows:

    MANZANET-DANIELS, J. (dissenting)
    The motion court properly entertained plaintiff's motion to renew, based on the addendum report of Dr. Mian, and upon renewal, properly denied defendants' motion to the extent it sought dismissal of plaintiff's claims alleging a significant limitation of use of bodily function or system and a permanent consequential limitation of use of a body organ and/or member. This case, like the recent case of Linton v Nawaz, 62 AD3d 434 [2009], presents the vexing question of the quantum of proof necessary to raise a triable issue of fact concerning causation where defendant alleges the existence of a pre-existing, degenerative condition. Defendants failed to present persuasive proof of a pre-existing degenerative condition, as described in Pommells v Perez (4 NY3d 566 [2005]), and plaintiff's submissions sufficiently raised a triable issue of fact as to whether his injuries were attributable to the accident as opposed to a pre-existing, degenerative condition. I would accordingly affirm the order of the motion court in all respects.
    Plaintiff, born December 28, 1958, commenced this action to recover damages for personal injuries allegedly sustained in an automobile accident on September 27, 2006. In his bill of particulars, plaintiff identified various injuries including (1) tears of the annulus fibrosis at L4-L5 and L5-S1, (2) disc herniations at L1-L2, L4-L5 and L5-S1, and (3) disc bulges at L3-L4 and L4-L5. In his supplemental bill of particulars, plaintiff noted that he had undergone a percutaneous discectomy at L4-L5 and L5-S1 levels with the Stryker Dekompressor System.
    Defendants filed a motion for summary judgment dismissing the complaint on the ground that plaintiff failed to establish the existence of a "serious injury" (Insurance Law 5102[d]). In support, defendants submitted, inter alia, an affirmation from Dr. Gregory Montalbano, who performed an orthopedic examination of plaintiff on March 14, 2008.
    Dr. Montalbano indicated that he had reviewed plaintiff's medical records and had conducted an independent medical examination, including range of motion tests. He concluded that at the time of this examination, plaintiff had normal range of motion in his cervical and lumbar spine, which Dr. Montalbano quantified and compared to the norm, with no orthopedic disability. The medical records reviewed by Dr. Montalbano included a November 20, 2006 MRI report (but not the films themselves) of plaintiff's lumbar spine, as interpreted by plaintiff's radiologist, Dr. Alan Greenfield. The MRI report found evidence of midline tears in the annulus fibrosis with central disc herniation at L4-L5 and L5-S1, along with disc dessication, and bilateral facet arthropathy from L4 through S1. Dr. Montalbano also reviewed a March 23, 2007 MRI report of the lumbar spine interpreted by Dr. Richard Heiden, which found right sided herniation at L1-L2, bulges at L3-L4 and left-sided herniation at L5-S1.
    Dr. Montalbano opined that plaintiff had not sustained an injury to the lower back as a result of the accident. Dr. Montalbano based this conclusion on two factors. First, he noted that immediately after the accident, plaintiff flew to Florida for a week, which was "extremely unusual behavior" for anyone traumatically sustaining not one but two disc herniations. Dr. Montalbano stated that single level acute disc herniations typically caused incapacitation for two or more weeks, and required marked activity modification, bed rest and strong prescription pain medication. Second, Dr. Montalbano opined that the degenerative changes shown in both MRIs, i.e., multiple level disc bulges and herniations and facet arthropathy from L4 through S1, were the type that would occur over time and not over a two-month period [FN1] . These degenerative changes were consistent with plaintiff's age and occupation as a boiler fireman. Dr. Montalbano further opined that the discectomy surgery was performed for the purpose of correcting plaintiff's pre-existing lumbar condition.
    In opposition to the motion, plaintiff relied on Dr. Greenfield's MRI report of plaintiff's lumbar spine on November 20, 2006; the March 20, 2007 affirmed medical report of his surgeon, Dr. Mian, who opined that plaintiff's injuries were causally related to the accident; the June 3, 2008 affirmed report of neurologist Paul Lerner, who found deficits in lumbar range of motion and opined that plaintiff's injuries were causally related to the accident; and the affirmed report of Dr. Mitchell Kaphan, an orthopedist who examined plaintiff on December 21, 2006 and found range-of-motion limitations in the cervical and lumbar spine, and opined that plaintiff's injuries were causally related to the accident.
    By order entered November 10, 2008, the court granted defendants' motion for summary judgment dismissing the complaint in its entirety, finding that defendants had established, prima facie, that plaintiff had not sustained a "serious injury." The court relied, inter alia, upon Dr. Montalbano's opinion, based on his examination of plaintiff and his review of the medical records, that plaintiff did not sustain cervical or spinal injury as a result of the accident, and that the MRI of plaintiff's lumbar spine demonstrated he suffered from pre-existing degenerative disc disease. The court found, in turn, that plaintiff had failed to raise a triable issue of fact as to whether he had sustained a serious injury within the meaning of the statute. The court noted that "not one of the records or reports" of plaintiff's treating physicians "addresses the pre-existing degenerative disc disease reported by Dr. Greenfield and described in Dr. Montalbano's affirmed report," or "give[s] any objective basis for concluding that plaintiff's alleged limitations result" from the accident rather than his pre-existing degenerative condition, rendering causality conclusions speculative and insufficient to defeat the summary judgment motion.
    Plaintiff moved, by order to show cause, for renewal of the order pursuant to CPLR 2221(e), based on the December 11, 2008 "addendum" report of Dr. Mian. Counsel asserted that plaintiff had not submitted the addendum report in his original opposition papers because both counsel and Dr. Mian were under the belief that the doctor's determination that plaintiff's injuries were causally related to the subject accident which was based upon his review of the MRI films, the MRI report, his examination of plaintiff and observation of the injured discs during the operation he performed on plaintiff had been sufficient to rebut Dr. Montalbano's findings of degeneration, which were based solely on the latter's review of the MRI report and not review of the actual MRI films.
    In his addendum report, Dr. Mian opined, based on his review of the MRI films, his examination of plaintiff, plaintiff's lack of any prior neck or back injury, and complaints relating to his neck and lower back since the accident, that plaintiff's lumbar disc herniations were causally related to the accident and not a pre-existing condition or long-standing degenerative process. Dr. Mian further opined that "even if the disc pathologies reflected in [plaintiff's] MRI scans were pre-existing or degenerative in nature, given [plaintiff's] complaints relating to his back since the accident and his lack of any prior injury to those parts of his body, the impact from the subject accident plainly made the disc pathologies symptomatic."
    By order entered June 1, 2009, the court granted renewal, vacated the prior order, restored the case to the calendar, and granted defendants' motion for summary judgment only to the extent of dismissing the 90/180-day claims. The court noted that although renewal was not generally available when the newly submitted material was available at the time of the original motion, a court had "broad discretion" to grant renewal, and under the appropriate circumstances could do so even upon facts known to the movant at the time of the original motion. The court stated that although it had originally decided that plaintiff's evidence in opposition to the motion was insufficient to raise a triable issue of fact because it failed to address Dr. Montalbano's opinion that plaintiff's injuries were pre-existing and not causally related to the accident, "upon reflection," and "in light of" our recent holding in Linton, the court found that the opinions of Drs. Mian and Kaphan with respect to causality were "no more conclusory" that those of Dr. Montalbano, particularly in light of Dr. Mian's addendum report.
    I would hold that the lower court properly granted the motion to renew, and thereupon properly denied defendants' motion to dismiss the complaint to the extent indicated above. It was within the court's discretion to grant leave to renew upon facts known to the moving party at the time of the original motion. Plaintiff provided a reasonable justification for the failure to include information provided in the addendum of his medical witness, citing counsel's belief that the medical submissions in opposition to defendants' summary judgment motion were sufficient to rebut defendants' expert's finding that the injuries claimed by plaintiff were degenerative (see Rancho Santa Fe Assn. v Dolan-King, 36 AD3d 460 [2007] [court, in its discretion, may grant renewal, in the interest of justice, upon facts known to
    the movant at the time of the original motion]; Nutting v Associates in Obstetrics & Gynecology, 130 AD2d 870 [1987] [court properly granted motion to renew based on affidavit of medical doctor where defendants reasonably believed plaintiffs' failure to provide an affidavit of merit from a medical expert would preclude plaintiffs from successfully vacating default]).
    Indeed, the reports of plaintiff's experts, who had examined him and opined that his injuries were causally related to the accident, were more than sufficient to raise a triable issue of fact (see Norfleet v Deme Enter., Inc., 58 AD3d 499 [2009]). Their conclusions that plaintiff's symptoms were related to the accident were not speculative or conclusory, but rather, based on physical examinations of plaintiff made shortly after the onset of his complaints of pain and other symptoms, which he claimed arose after his involvement in the motor vehicle accident. By attributing plaintiff's injuries to a different, yet equally plausible cause (i.e., the accident), the affirmations of plaintiff's experts raised an issue of triable fact, and a jury was entitled to determine which medical opinion was entitled to greater weight (see Linton v Nawaz, 62 AD3d 434, supra).
    In this case there is no "persuasive" evidence of a pre-existing injury of the type described in Pommells v Perez (4 NY3d 566, supra). Dr. Montalbano, who examined plaintiff 1 years after the accident, merely opined that the type of injuries revealed by plaintiff's MRI (i.e., multi-level disc bulges and herniations and facet arthropathy) were degenerative changes consistent with plaintiff's age and occupation. Significantly, he did not examine the MRI films themselves, more specifically describe the nature of plaintiff's injuries or explain why he had conclusively determined that plaintiff's injuries were degenerative in origin.[FN2]
    In any event, the addendum provided sufficient evidence to rebut defendants' expert's finding that disc pathologies were degenerative in nature rather than a serious injury causally related to the accident. Dr. Mian opined that the disc pathologies observed by Dr. Montalbano were causally related to the accident, based on his examination of plaintiff, his review of the MRI films, plaintiff's lack of prior neck or back injury, and the onset of plaintiff's symptoms following the accident. Dr. Mian further opined that even if disc pathologies were pre-existing in nature, the accident served to aggravate them. This was more than sufficient, at this stage, to raise a triable issue of fact regarding causation (see e.g. Hammett v Diaz-Frias, 49 AD3d 285 [2008] [report of plaintiff's doctor that her symptoms were caused by accident, and that her condition was permanent in nature and in part an "exacerbation of underlying degenerative joint disease and prior injuries," sufficient to raise a triable issue of fact]).
    Footnotes

    Footnote 1: Dr. Montalbano noted that the November 20, 2006 MRI of the lumbar spine showed midline tears of the annulus fibrosis; however, he did not specifically opine that this was a degenerative change.

    Footnote 2: Indeed, given the conclusory nature of Dr. Montalbano's opinions regarding causation, it is questionable whether defendants made a prima facie case. However, it is not necessary to determine this question since plaintiff, in moving for renewal, accepted the motion court's rationale that defendants' submissions sufficed to establish a prima facie case, and rather (assuming that a prima facie case had been made), contended that Dr. Mian's submissions were sufficient to raise a triable issue of fact.

    Weinberg v. Okapi Taxi, Inc.


    Simon, Eisenberg & Baum, LLP, New York (Carol L. Abrams
    of counsel), for appellant.
    Baker, McEvoy, Morrissey & Moskovits, P.C., New York
    (Stacy R. Seldin of counsel), for respondents.
    Order, Supreme Court, New York County (Paul Wooten, J.), entered March 6, 2009, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
    Plaintiff failed to rebut defendants' prima facie showing that there was no "permanent consequential limitation" or "significant limitation" of use of his ankle (Insurance Law 5102[d]). Plaintiff's orthopedist consistently reported a full range of motion of the ankle. Plaintiff claims limitations as to prolonged standing, walking, kneeling, or sitting, but he sets forth no objective basis for comparing these limitations "to the normal function, purpose and use of the affected body organ, member, function or system" (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). Nor does he address the degenerative changes noted in the x-ray report from the emergency room or the opinion of defendants' expert that plaintiff's injuries pre-dated the accident (see Pommells v Perez, 4 NY3d 566, 579-580 [2005]). Plaintiff also submitted no objective medical proof that he could not perform substantially all his daily activities for 90 of the first 180 days following the accident (see Rossi v Alhassan, 48 AD3d 270 [2008]). His claimed inability to work for more than 90 days is not dispositive of the existence of a 90/180 category injury (Uddin v Cooper, 32 AD3d 270, 271 [2006], lv denied 8 NY3d 808 [2007]).
    Barry v. Valerio


    Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
    (Stacy R. Seldin of counsel), for appellants.
    Stefano A. Filippazzo, P.C., Brooklyn, N.Y. (Louis A. Badolato
    of counsel), for respondent.
    James J. Toomey, New York, N.Y. (James E. Toner of counsel),
    for defendant.

    DECISION & ORDER
    In an action to recover damages for personal injuries, the defendants Aracena's Transport, Inc., and Cristobal F. Espinal appeal from an order of the Supreme Court, Kings County (Martin, J.), dated June 9, 2009, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the grounds that the plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d) and that they were not at fault in the happening of the accident.
    ORDERED that the order is affirmed, with costs.
    This action arises from a three-car accident which occurred on the morning of January 1, 2005, on Pennsylvania Avenue in Brooklyn. After joinder of issue, the appellants moved for summary judgment dismissing the complaint insofar as asserted against them on the grounds that the plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d) and that they were not at fault in the happening of the accident.
    The appellants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d) through the affirmed medical report of neurologist Edward M. Weiland, who examined the plaintiff and concluded that he had a normal neurologic examination (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352; Gaddy v Eyler, 79 NY2d 955, 956-957).
    In opposition, the plaintiff raised a triable issue of fact as to whether he sustained a permanent consequential limitation of use and/or a significant limitation of use of the cervical and lumbar regions of his spine within the meaning of Insurance Law 5102(d) as a result of the subject accident (see Williams v Clark, 54 AD3d 942; Casey v Mas Transp., Inc., 48 AD3d 610; Green v Nara Car & Limo, Inc., 42 AD3d 430; Francovig v Senekis Cab Corp., 41 AD3d 643, 644-645; Acosta v Rubin, 2 AD3d 657). Dr. Gautam Khakhar, one of the plaintiff's treating physicians, opined in his affirmation, based on his contemporaneous and most recent examination of the plaintiff, as well as upon his review of the plaintiff's magnetic resonance imaging reports, which showed, inter alia, herniated discs at L4-5, L5-S1, C4-5, C5-6, C6-7, that the injuries to the cervical and lumbar regions of the plaintiff's spine and quantified and observed range-of-motion limitations were permanent, significant, and causally related to the subject accident (see Paula v Natala, 61 AD3d 944, 945; Desir v Castillo, 59 AD3d 659, 660; Azor v Torado, 59 AD3d 367, 368).
    In addition, the appellants failed to meet their burden of demonstrating the absence of triable issues of fact with regard to whether they were free from fault in the happening of the accident (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324; see Delgado v Butt, 48 AD3d 735; Spuhler v Khan, 14 AD3d 693; Reed v New York City Tr. Auth., 299 AD2d 330; Barberena v Budd Enters., 299 AD2d 305; Krakowska v Niksa, 298 AD2d 561; Vidal v Tsitsiashvili, 297 AD2d 638). Failure to make such a showing requires denial of that branch of their motion, regardless of the sufficiency of the opposing papers (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
    The appellants' remaining contentions are without merit.
    Accordingly, the Supreme Court properly denied the appellants' motion.
    The contentions of the defendant Francis A. Valerio are not properly before this Court since he did not file a notice of appeal from the order (see CPLR 5515; Show Lain Cheng v Young, 60 AD3d 989, 991).
    Milosevic v. Mouladi


    Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
    (Stacy R. Seldin of counsel), for appellants Jacques K. Mouladi and
    Lapwing Cab Corp.
    Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains,
    N.Y. (Lindsay J. Kalick of counsel), for
    appellants Johurl I. Anam and Lead Cab
    Corp.
    Evan M. Foulke, Goshen, N.Y. (Thomas Humbach of counsel), for
    respondent.

    DECISION & ORDER
    In an action to recover damages for personal injuries, the defendants Jacques K. Mouladi and Lapwing Cab Corp. appeal, and the defendants Johurl I. Anam and Lead Car Corp. separately appeal, as limited by their briefs, from so much of an order of the Supreme Court, Kings County (Balter, J.), dated July 2, 2009, as denied their respective motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d).
    ORDERED that the order is reversed, on the law, with one bill of costs, and the respective motions of the defendants Jacques K. Mouladi and Lapwing Cab Corp., and Johurl I. Anam and Lead Car Corp., for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d) are granted.
    The Supreme Court properly determined that, in support of their respective motions, the defendants met their prima facie burdens of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957).
    In opposition, the plaintiff failed to raise a triable issue of fact. As to his right knee, the plaintiff failed to raise a triable issue of fact as to whether he sustained a serious injury under the permanent consequential limitation of use or the significant limitation of use categories of Insurance Law 5102(d) as a result of the subject accident. Specifically, the plaintiff failed to set forth any objective medical findings that revealed the existence of significant limitations in that region of his body that were contemporaneous with the subject accident (see Bleszcz v Hiscock, 69 AD3d 890; Taylor v Flaherty, 65 AD3d 1328; Fung v Uddin, 60 AD3d 992; Gould v Ombrellino, 57 AD3d 608; Kuchero v Tabachnikov, 54 AD3d 729; Ferraro v Ridge Car Serv., 49 AD3d 498).
    Furthermore, the plaintiff failed to proffer any competent medical evidence that the injuries allegedly sustained by him in the subject accident rendered him unable to perform substantially all of his usual and customary daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Sainte-Aime v Ho, 274 AD2d 569).
    Moreover, neither the plaintiff nor his doctors adequately explained the gap in the plaintiff's treatment from the time he admittedly discontinued treatment in December 2006, until January 26, 2009 (see Pommells v Perez, 4 NY3d 566, 574; Rivera v Bushwick Ridgewood Props., Inc., 63 AD3d 712).
    Sentino v. Valerio


    Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
    (Stacy R. Seldin of counsel), for appellants.
    Erlitz & Erlitz, LLP, Brooklyn, N.Y. (Michael R. Freeda of
    counsel), for respondent.
    James J. Toomey, New York, N.Y. (James Toner of counsel), for
    defendant.

    DECISION & ORDER
    In an action to recover damages for personal injuries, the defendants Cristobal F. Espinal and Aracenas Trans, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Martin, J.), dated June 9, 2009, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the grounds that the plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d) and that they were not at fault in the happening of the accident.
    ORDERED that the order is affirmed insofar as appealed from, with costs.
    This action arises from a three-car accident which occurred on the morning of January 1, 2005, on Pennsylvania Avenue in Brooklyn. At that time, a motor vehicle operated by the defendant Francis A. Valerio collided with vehicle owned by the defendant Aracenas Trans, Inc., and operated by the defendant Cristobal F. Espinal (hereinafter together the appellants), thereby propelling the latter vehicle into traffic moving in the opposite direction, where it was struck by a motor vehicle in which the plaintiff was riding. The appellants moved for summary judgment dismissing the complaint insofar as asserted against them on the grounds that the plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d) and that they were not at fault in the happening of the accident. However, the evidence submitted by the appellants in support of their motion failed to demonstrate the absence of triable issues of fact with regard to either claimed basis for summary judgment relief (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).
    Espinal testified at his deposition that, prior to the occurrence, he was traveling in the left lane of the northbound roadway of Pennsylvania Avenue, when Valerio's motor vehicle pulled out of a bus stop, crossed the right lane of the northbound roadway, and entered the left lane of the northbound roadway, a distance of about two car-lengths in front of Espinal's vehicle. This testimony raised a triable issue of fact (see CPLR 3212[b]) as to whether Espinal's subsequent failure to avoid a collision with Valerio's vehicle proximately resulted from negligence on his part in driving at an excessive rate of speed in violation of Vehicle and Traffic Law 1180 and in failing to pay attention to road conditions. Moreover, the affirmed medical report prepared by neurologist Edward M. Weiland, which the appellants submitted in support of their motion, failed to specify the degree or range of motion which the plaintiff was able to achieve with her right hand, and to compare such findings to what is normal (see Page v Belmonte, 45 AD3d 825). Accordingly, the Supreme Court properly denied the appellants' motion.
    Valerio's contentions are not properly before this Court since he did not file a notice of appeal from the order (see CPLR 5515; Show Lain Cheng v Young, 60 AD3d 989, 991).
    Gnahore v. Gonzalez


    Ornstein & Ornstein, P.C. (Alexander J. Wulwick, New York, N.Y.),
    for appellant.
    James G. Bilello, Westbury, N.Y. (Patricia McDonagh of
    counsel), for respondent.

    DECISION & ORDER
    In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated June 24, 2009, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff had not sustained a serious injury within the meaning of Insurance Law 5102(d).
    ORDERED that the order is affirmed, with costs.
    The defendant established her prima facie entitlement to summary judgment dismissing the complaint by submitting the report of her expert orthopedist and the plaintiff's own deposition testimony, which together established that the plaintiff had not sustained a serious injury within the meaning of Insurance Law 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352; Gaddy v Eyler, 79 NY2d 955, 956-957; Richards v Tyson, 64 AD3d 760, 761; Berson v Rosada Cab Corp., 62 AD3d 636, 636-637; Byrd v J.R.R. Limo, 61 AD3d 801, 802). On appeal, the plaintiff argues that the affirmation of the defendant's expert orthopedist was not in proper form. By not raising that argument in the Supreme Court, however, the plaintiff waived it (see Kibler v Gillard Constr., Inc., 53 AD3d 1040, 1042; Christopherson v Queens-Long Is. Med. Group, P.C., 17 AD3d 393, 394; Scudera v Mahbubur, 299 AD2d 535). The plaintiff's submissions in opposition to the motion were insufficient to raise a triable issue of fact. Among other things, the plaintiff submitted unaffirmed and uncertified medical reports and records, and failed to adequately explain the lapse in time between the cessation of his medical treatments and the re-examination for the purposes of opposing the defendant's summary judgment motion (see Rivera v Bushwick Ridgewood Props., Inc., 63 AD3d 712, 714; Ponciano v Schaefer, 59 AD3d 605, 606-607; Gastaldi v Chen, 56 AD3d 420, 420-421).
    Nieves v. Michael


    Aliazzo, McCloskey & Gonzalez, LLP, Ozone Park, N.Y. (Thomas
    P. McCloskey of counsel), for appellant.
    Perez & Varvaro, Uniondale, N.Y. (Alex M. Temple of counsel),
    for respondents.

    DECISION & ORDER
    In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Agate, J.), entered April 21, 2009, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d).
    ORDERED that the order is affirmed, with costs.
    The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957; see also Giraldo v Mandanici, 24 AD3d 419, 419-420).
    In opposition, the plaintiff failed to raise a triable issue of fact. In opposition to the defendants' motion, the plaintiff principally relied upon the affirmation of her treating physician, Dr. Benjamin Beiber. This affirmation was insufficient to raise a triable issue of fact. Dr. Beiber failed to address the findings of the defendants' examining physician, Dr. Michael R. Miller, who concluded that the plaintiff's injuries and range-of-motion limitations were caused by preexisting degeneration. This failure rendered speculative Dr. Beiber's conclusion that the plaintiff's injuries and loss of motion he noted were caused by the subject accident (see Iovino v Scholl, 69 AD3d 799; Shmerkovich v Sitar Corp., 61 AD3d 843; Pamphile v Bastien, 61 AD3d 659, 660; Levine v Deposits Only, Inc., 58 AD3d 697, 698; Marrache v Akron Taxi Corp., 50 AD3d 973, 974; Giraldo v Mandanici, 24 AD3d at 420).
    While Dr. Beiber stated in his affirmation that he examined the plaintiff on February 17, 2006, which was shortly after the accident, and noted that the plaintiff had "loss of motion" in her left shoulder, Dr. Beiber failed to set forth the objective testing he did in order to arrive at that conclusion (see Knopf v Sinetar, 69 AD3d 809; Spence v Mikelberg, 66 AD3d 765; Sapienza v Ruggiero, 57 AD3d 643; Budhram v Ogunmoyin, 53 AD3d 640, 641; Piperis v Wan, 49 AD3d 840, 841). While Dr. Beiber examined the plaintiff on October 22, 2008, and noted significant limitations in the plaintiff's left shoulder range of motion, neither he nor the plaintiff proffered competent 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 Bleszcz v Hiscock, 69 AD3d 890; Taylor v Flaherty, 65 AD3d 1328; Fung v Uddin, 60 AD3d 992; Gould v Ombrellino, 57 AD3d 608; Kuchero v Tabachnikov, 54 AD3d 729; Ferraro v Ridge Car Serv., 49 AD3d 498). Without such contemporaneous findings, the plaintiff could not have raised a triable issue of fact under the permanent loss, permanent consequential limitation of use, or the significant limitation of use categories of Insurance Law 5102(d) (see Jack v Acapulco Car Service, Inc., AD3d, 2010 NY Slip Op 02923 [2d Dept 2010]; Bleszcz v Hiscock, 69 AD3d at 891; Taylor v Flaherty, 65 AD3d at 1328-1329; Ferraro v Ridge Car Serv., 49 AD3d at 498).
    The plaintiff failed to submit competent medical evidence that the injuries she allegedly sustained as a result of 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 thereafter (see Sainte-Aime v Ho, 274 AD2d 569). The plaintiff's own deposition testimony established that she missed, at most, seven days of work and she admitted that she returned thereto to the same duties as before the subject accident.
    Ortiz v. Ianina Taxi Services, Inc.


    Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
    (Stacy R. Seldin of counsel), for appellants.
    Sayegh & Sayegh, P.C., Yonkers, N.Y. (Elias Sayegh of counsel),
    for respondent.

    DECISION & ORDER
    In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Westchester County (O. Bellantoni, J.), entered September 25, 2009, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d).
    ORDERED that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d) is granted.
    The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact.
    The affirmed medical report of the plaintiff's treating physician, Dr. Ricky Sayegh, was insufficient to raise a triable issue of fact. Dr. Sayegh's report merely noted that based upon a recent examination, the range of motion in the plaintiff's right knee was "decreased." However, Dr. Sayegh did not set forth the objective testing he did in order to arrive at that conclusion (see Keith v Duval, 71 AD3d 1093; Knopf v Sinetar, 69 AD3d 809; Spence v Mikelberg, 66 AD3d 765; Sapienza v Ruggiero, 57 AD3d 643, 644). Furthermore, the extent of any limitation in the plaintiff's right knee cannot be determined because Dr. Sayegh failed to quantify that limitation, or provide a qualitative assessment of that region of her body in his report (see Toure v Avis Rent A Car Sys., 98 NY2d at 350; Acosta v Alexandre, 70 AD3d 735; Giannini v Cruz, 67 AD3d 638, 639; Taylor v Flaherty, 65 AD3d 1328; Barnett v Smith, 64 AD3d 669, 671).
    The magnetic resonance imaging reports of the cervical and lumbar regions of the plaintiff's spine, which merely revealed the existence of bulging discs at C5-6 and L5-S1, also failed to raise a triable issue of fact. The mere existence of a bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration (see Keith v Duval, 71 AD3d 1093; Casimir v Bailey, 70 AD3d 994; Rivera v Bushwick Ridgewood Props., Inc., 63 AD3d 712, 713; Pompey v Carney, 59 AD3d 416).
    The plaintiff also failed to submit competent medical evidence that the injuries she allegedly sustained in the subject accident rendered her unable to perform substantially all of her daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Casimir v Bailey, 70 AD3d at 994; Sainte-Aime v Ho, 274 AD2d 569).
    Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d) as a result of the subject accident.
    Rasporskaya v. New York City Transit Authority


    Wittenstein & Associates, P.C., Brooklyn, N.Y. (Harlan Wittenstein
    of counsel), for appellant.

    DECISION & ORDER
    In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Richmond County (Minardo, J.), entered June 29, 2009, as denied that branch of her motion which was for summary judgment on the issue of serious injury.
    ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
    The plaintiff demonstrated her entitlement to judgment as a matter of law by establishing, prima facie, that she sustained a serious injury under the 90/180 day category set forth under Insurance Law 5102(d) (cf. Shifren v Scheiner, 269 AD2d 381). However, in opposition, the defendants raised a triable issue of fact as to whether the plaintiff, who alleged that she sustained, inter alia, an injury to her right shoulder as a result of the subject accident, had a medically-determined injury that prevented her from performing substantially all of the material acts constituting her usual and customary daily activities during at least 90 out of the first 180 days following the subject accident (cf. Knox v Lennihan, 65 AD3d 615, 616). The defendants also raised a triable issue of fact as to whether, if the plaintiff did have such an injury, it was sustained in an accident that occurred approximately three months prior to the subject accident, and in which the plaintiff sustained injuries, inter alia, to her right shoulder (cf. Moses v Gelco Corp., 63 AD3d 548, 548-549). Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was for summary judgment on the issue of serious injury.
    Smith v. Hartman


    DECISION & ORDER
    In an action to recover damages for personal injuries, etc., the plaintiffs David Smith, Ann Smith, Toros Demirdjian, and Nicole Demirdjian appeal from so much of an order of the Supreme Court, Nassau County (Davis, J.), entered August 11, 2008, as granted the defendant's motion for summary judgment dismissing the complaint insofar as asserted by them on the ground that neither the plaintiff David Smith nor the plaintiff Toros Demirdjian sustained a serious injury within the meaning of Insurance Law 5102(d).
    ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint insofar as asserted by the plaintiffs David Smith, Ann Smith, Toros Demirdjian, and Nicole Demirdjian on the ground that neither the plaintiff David Smith nor the plaintiff Toros Demirdjian sustained a serious injury within the meaning of Insurance Law 5102(d) is denied.
    Contrary to the Supreme Court's determination, the defendant failed to meet his prima facie burden of showing that neither the plaintiff David Smith (hereinafter Mr. Smith) nor the plaintiff Toros Demirdjian (hereinafter Mr. Demirdjian) sustained a serious injury within the meaning of Insurance Law 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of his motion, the defendant relied on the affirmed medical reports of Dr. Arthur Bernhang, his examining orthopedic surgeon. As to Mr. Smith, Dr. Bernhang noted a significant limitation in the cervical region of his spine during active range-of-motion testing when he examined Mr. Smith more than four years post-accident (see Kjono v Fenning, 69 AD3d 581; Ortiz v S & A Taxi Corp., 68 AD3d 734; Buono v Sarnes, 66 AD3d 809). As to Mr. Demirdjian, Dr. Bernhang noted significant limitations during active shoulder range-of-motion testing, which occurred some 4 years post-accident (see Quiceno v Mendoza,AD3d, 2010 NY Slip Op 02938, *1 [2d Dept 2010]; Giacomaro v Wilson, 58 AD3d 802, 803; McGregor v Avellaneda, 50 AD3d 749, 749-750; Wright v AAA Constr. Servs., Inc., 49 AD3d 531).
    Since the defendant failed to meet his prima facie burden, we need not address the question of whether the submissions of Mr. Smith or Mr. Demirdjian raised a triable issue of fact (see Quiceno v Mendoza,AD3d, 2010 NY Slip Op 02938, *1 [2d Dept 2010]; Kjono v Fenning, 69 AD3d at 581; Coscia v 938 Trading Corp., 283 AD2d 538).
    Villante v. Miterko


    DECISION & ORDER
    In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Winslow, J.), dated April 13, 2009, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law 5102(d).
    ORDERED that the order is affirmed, with costs.
    The defendant met his prima facie burden by showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact.
    The only medical evidence proffered by the plaintiff in opposition to the defendant's motion was the affirmation of Dr. Armand Abulencia, the plaintiff's treating physician. While Dr. Abulencia noted significant limitations in the range of motion in the lumbar region of the plaintiff's spine based on a recent examination of her, neither he nor the plaintiff proffered competent objective medical evidence of the existence of a significant limitation in the plaintiff's spine that was contemporaneous with the subject accident (see Bleszcz v Hiscock, 69 AD3d 890; Taylor v Flaherty, 65 AD3d 1328; Fung v Uddin, 60 AD3d 992; Gould v Ombrellino, 57 AD3d 608; Kuchero v Tabachnikov, 54 AD3d 729; Ferraro v Ridge Car Serv., 49 AD3d 498). While Dr. Abulencia, in his affirmation, noted that he examined the plaintiff contemporaneously with the subject accident, as well as approximately 10 months after the accident, and found restrictions in motion during those earlier examinations, he failed to set forth the objective medical testing he did during those examinations to arrive at those earlier conclusions (see Knopf v Sinetar, 69 AD3d 809; Spence v Mikelberg, 66 AD3d 765; Sapienza v Ruggiero, 57 AD3d 643; Budhram v Ogunmoyin, 53 AD3d 640, 641; Piperis v Wan, 49 AD3d 840, 841). Without such contemporaneous findings, the plaintiff could not have raised a triable issue of fact under the permanent loss, permanent consequential limitation of use, or significant limitation of use categories of Insurance Law 5102(d) (see Jack v Acapulco Car Serv., Inc.,AD3d, 2010 NY Slip Op 02923, *1 [2d Dept 2010]; Bleszcz v Hiscock, 69 AD3d at 891; Taylor v Flaherty, 65 AD3d at 1328-1329; Ferraro v Ridge Car Serv., 49 AD3d at 498).
    Moreover, it is clear that Dr. Abulencia relied on the unsworn magnetic imaging reports concerning the cervical and lumbar regions of the plaintiff's spine in coming to his conclusions in his affirmation (see Giannini v Cruz, 67 AD3d 638; Sorto v Morales, 55 AD3d 718, 719; Malave v Basikov, 45 AD3d 539, 540; Furrs v Griffith, 43 AD3d 389, 390; see also Friedman v U-Haul Truck Rental, 216 AD2d 266, 267).
    The affidavit of the plaintiff was insufficient to raise a triable issue of fact (see Shvartsman v Vildman, 47 AD3d 700; Fisher v Williams, 289 AD2d 288).
    Vilomar v. Castillo


    Baker, McEvoy, Morrissey & Moskovits, P.C. (Sullivan Law Firm,
    New York, N.Y. [Timothy M. Sullivan], of counsel), for appellant.
    David S. Kritzer, Huntington, N.Y., for respondent.

    DECISION & ORDER
    In an action to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Queens County (McDonald, J.), entered October 9, 2009, as denied those branches of his motion which were for summary judgment dismissing the plaintiff's claims of serious injury under the permanent loss of use, the permanent consequential limitation of use, and the significant limitation of use categories of Insurance Law 5102(d) on the ground that the plaintiff did not sustain any such serious injuries within the meaning of that statute.
    ORDERED that the order is reversed insofar as appealed from, with costs, and those branches of the defendant's motion which were for summary judgment dismissing the plaintiff's claims of serious injury under the permanent loss of use, the permanent consequential limitation of use, and the significant limitation of use categories of Insurance Law 5102(d) on the ground that the plaintiff did not sustain any such serious injuries within the meaning of that statute are granted.
    The defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury under the permanent loss of use, permanent consequential limitation of use, and significant limitation of use categories of Insurance Law 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957; see also Giraldo v Mandanici, 24 AD3d 419). The limitation noted by the defendant's examining orthopedic surgeon in his affirmed medical report concerning the plaintiff's right knee was insignificant (see Licari v Elliott, 57 NY2d 230, 236).
    In opposition, the plaintiff failed to raise a triable issue of fact. Initially, the reports of Dr. Kenneth B. Chapman failed to raise a triable issue of fact because they were unaffirmed (see Grasso v Angerami, 79 NY2d 813; Mora v Riddick, 69 AD3d 591; Singh v Mohamed, 54 AD3d 933; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; Pagano v Kingsbury, 182 AD2d 268).
    The affirmation of Dr. Stanley Liebowitz was insufficient to raise a triable issue of fact, as Dr. Liebowitz relied on the unsworn records and reports of others in arriving at his determination (see Giannini v Cruz, 67 AD3d 638; Sorto v Morales, 55 AD3d 718, 719; Malave v Basikov, 45 AD3d 539, 540; Furrs v Griffith, 43 AD3d 389, 390; see also Friedman v U-Haul Truck Rental, 216 AD2d 266, 267). The plaintiff failed to proffer any competent objective medical evidence that revealed the existence of significant limitations in the cervical and lumbar regions of the plaintiff's spine that were contemporaneous with the subject accident (see Bleszcz v Hiscock, 69 AD3d 890; Taylor v Flaherty, 65 AD3d 1328; Fung v Uddin, 60 AD3d 992; Gould v Ombrellino, 57 AD3d 608; Kuchero v Tabachnikov, 54 AD3d 729; Ferraro v Ridge Car Serv., 49 AD3d 498). Without such contemporaneous findings, the plaintiff could not and did not raise a triable issue of fact under the permanent loss, permanent consequential limitation of use, or significant limitation of use categories of Insurance Law 5102(d) (see Jack v Acapulco Car Service, Inc.,AD3d, 2010 NY Slip Op 02923 [2d Dept 2010]; Bleszcz v Hiscock, 69 AD3d at 891; Taylor v Flaherty, 65 AD3d at 1328-1329; Ferraro v Ridge Car Serv., 49 AD3d at 498).
    The affirmed medical reports of Dr. Steven Brownstein also failed to raise a triable issue of fact. The mere existence of a torn tendon, or even a herniated or bulging disc, is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration (see Magid v Lincoln Servs. Corp., 60 AD3d 1008; Washington v Mendoza, 57 AD3d 972; Cornelius v Cintas Corp., 50 AD3d 1085, 1087; Shvartsman v Vildman, 47 AD3d 700; Tobias v Chupenko, 41 AD3d 583; Mejia v DeRose, 35 AD3d 407; Yakubov v CG Trans Corp., 30 AD3d 509; Cerisier v Thibiu, 29 AD3d 507; Bravo v Rehman, 28 AD3d 694; Kearse v New York City Tr. Auth., 16 AD3d 45; Diaz v Turner, 306 AD2d 241). The plaintiff's affidavit failed to meet this requirement (see Luna v Mann, 58 AD3d 699; Washington v Mendoza, 57 AD3d at 973).
    Garrison v. Lapine


    Calendar Date: March 25, 2010
    Before: Mercure, J.P., Peters, Rose, Stein and McCarthy, JJ.

    Ahmuty, Demers & McManus, Albertson (Brendan T.
    Fitzpatrick of counsel), for appellants.
    Rusk, Waldin, Heppner & Martuscello, L.L.P.,
    Kingston (John G. Rusk of counsel), for respondents.
    MEMORANDUM AND ORDER

    Stein, J.
    Appeals (1) from a judgment of the Supreme Court (Platkin, J.), entered March 5, 2009 in Ulster County, upon a verdict rendered in favor of plaintiff, and (2) from an order of said court, entered July 1, 2009 in Ulster County, which denied defendants' motion to set aside the verdict.
    Plaintiff Diane Garrison (hereinafter plaintiff) and her husband, derivatively, commenced this action to recover damages resulting from injuries sustained by plaintiff in an automobile accident. Defendants conceded liability but a jury trial was held to determine, among other things, causation and damages. After finding that plaintiff had suffered a significant limitation of the use of a body function or system, as well as a permanent consequential limitation of the use of a body organ or member (see Insurance Law 5102 [d]), the jury awarded plaintiff $500,000 for past pain and suffering and $2 million for future pain and suffering for a period of 31 years. In addition, the jury awarded plaintiff's husband $400,000 for loss of consortium.
    Defendants moved to set aside the verdict, asserting that the damage award deviated materially from what would be reasonable compensation (see CPLR 5501 [c]). Defendants also sought to stay entry of plaintiffs' proposed judgment and, in the alternative, submitted their own proposed judgment, using a different discount rate to determine the present value of the future pain and suffering award (see generally CPLR 5041 [e]). Supreme Court refused to grant a stay or to adopt defendants' proposed discount rate and a judgment was entered accordingly. Thereafter, upon the court's denial of defendants' motion to set aside the verdict, these appeals ensued.
    We affirm. An award of damages is a factual determination to be made by the jury and is accorded deference unless "it deviates materially from what would be reasonable compensation" (CPLR 5501 [c]; see Doviak v Lowe's Home Ctrs., Inc., 63 AD3d 1348, 1353 [2009]). "To successfully challenge a determination as to the amount of damages to be awarded, the record evidence must preponderate in favor of the moving party to such a degree that the verdict could not have been reached on any fair interpretation of the evidence" (Simeon v Urrey, 278 AD2d 624, 624 [2000] [citations omitted]).
    Here, plaintiffs' medical experts testified that plaintiff suffered from a traumatic brain injury. To the extent that their opinions differed from those of defendants' experts, the jury was entitled to credit plaintiffs' witnesses (see Vogel v Cichy, 53 AD3d 877, 879 [2008]; Kithcart v Mason, 51 AD3d 1162, 1164 [2008]). In addition, "the record is replete with expert and lay proof regarding the devastating effect that plaintiff's resulting [cognitive and behavioral problems] had on her to the time of trial and will continue to have on her life" (La Fountaine v Franzese, 282 AD2d 935, 939 [2001]; see Doviak v Lowe's Home Ctrs., Inc., 63 AD3d at 1353; Popolizio v County of Schenectady, 62 AD3d 1181, 1184 [2009]; Norton v Nguyen, 49 AD3d 927, 930-931 [2008]). The evidence presented to the jury included, among other things, testimony that for the first six months following the accident, plaintiff was unable to do anything but sit in a chair with heat packs and that she continues to suffer from headaches that often cause her to sleep all day. There was also testimony that she suffers from excessive fatigue and she is unmotivated and/or unable to participate in many of the activities which she enjoyed prior to the accident. For example, whereas plaintiff was previously very involved in volunteering in the community and assisting her children, as well as performing daily household tasks such as cooking and cleaning, since the accident she has been limited in the activities she is able to perform and in her ability to interact with her family. Various witnesses also observed plaintiff's tendency to engage in child-like behavior at times and her severe irritability at other times. Significantly, plaintiff's speech has progressively become increasingly jumbled, resulting in an inability to express herself which, in turn, causes her to be frustrated and/or to make inappropriate responses or comments. Witnesses further testified regarding plaintiff's erratic and unpredictable behavior, including an attempt to jump from a moving car and laying down in the middle of the street, expressing her hope that a car would hit her. Significantly, there was credible expert testimony that plaintiff's condition was chronic and that her prognosis was poor.
    In view of the foregoing, we find that the jury's verdict here was amply supported by a fair interpretation of the evidence. Moreover, considering "the nature, extent and permanency of [plaintiff's] injuries, the extent of past, present and future pain and the long-term effects of the injury" (Nolan v Union Coll. Trust of Schenectady, N.Y., 51 AD3d 1253, 1256 [2008], lv denied 11 NY3d 705 [2008]; see Doviak v Lowe's Home Ctrs., Inc., 63 AD3d at 1353; La Fountaine v Franzese, 282 AD2d at 939) and recognizing that damage awards for pain and suffering are inherently subjective and not subject to precise quantification or formulas (see Garrow v Rosettie Assoc., LLC, 60 AD3d 1125, 1125 [2009]; Neissel v Rensselaer Polytechnic Inst., 54 AD3d 446, 453 [2008], lv denied 11 NY3d 716 [2009]; Nolan v Union Coll. Trust of Schenectady, N.Y., 51 AD3d at 1256), the damages awarded were well within the range of reasonable compensation (compare Doviak v Lowe's Home Ctrs., Inc., 63 AD3d at 1353; Popolizio v County of Schenectady, 62 AD3d at 1184-1185; Auer v State of New York, 289 AD2d 626, 629 [2001]).
    Likewise, we are unpersuaded by defendants' contention that the jury's $400,000 award for loss of consortium was excessive. In this regard, the evidence demonstrated that the injuries suffered by plaintiff as a result of the accident placed upon her husband "extraordinary emotional and physical demands . . . [that] dramatically affected and, in a very real way, altered [his] relationship with [his wife]" (Doviak v Lowe's Home Ctrs., Inc., 63 AD3d at 1354). Plaintiff requires long-term care and her condition has compelled her husband to assume the duties of her nurse, as well as plaintiff's previous role of household caretaker. Plaintiff's injuries have also resulted not only in a lack of intimacy, but in marital turmoil. In one instance, her irritable state and erratic behavior included a threat to kill her husband, forcing him to leave the marital residence for several weeks. In addition, he has been precluded from seeking new responsibilities that may lead to advancement in his employment, as he is frequently required to leave his job on short notice to attend to plaintiff's needs. Under these circumstances, we cannot say that the $400,000 award for loss of consortium materially deviates from what is reasonable compensation (compare id. at 1353-1354; Kirschhoffer v Van Dyke, 173 AD2d 7, 12 [1991]).
    Finally, for the well-articulated reasons set forth in Supreme Court's decision, we are satisfied that the use of the 10-year treasury bond rate in place at the time of the verdict as the discount rate in determining the present value of plaintiff's future damage award was in all respects proper (see generally CPLR 5041 [e]; Desiderio v Ochs, 100 NY2d 159 [2003]; Tassone v Mid-Valley Oil Co., 5 AD3d 931, 933 [2004], lv denied 3 NY3d 608 [2004]).
    Shubbuck v. Conners


    Appeal from a judgment of the Supreme Court, Erie County (Paula L. Feroleto, J.), entered September 30, 2008 in a personal injury action. The judgment awarded plaintiff damages against defendants upon a jury verdict.

    RIVKIN RADLER LLP, UNIONDALE (MELISSA M. MURPHY OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
    WAYNE C. FELLE, P.C., WILLIAMSVILLE (WAYNE C. FELLE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

    It is hereby ORDERED that the judgment so appealed from is affirmed without costs.
    Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when the taxicab he was driving collided with a vehicle operated by defendant Sean W. Conners and owned by defendant Denise M. Sabuda. Contrary to defendants' contention, Supreme Court properly granted that part of plaintiff's pretrial motion for partial summary judgment on the issue whether plaintiff sustained a serious injury within the meaning of Insurance Law 5102 (d) (see generally Toure v Avis Rent A Car Sys., 98 NY2d 345, 350). The case thereafter proceeded to trial, whereupon the jury rendered a verdict in favor of plaintiff and awarded him damages for past and future medical expenses, lost wages, and pain and suffering. There is no merit to the contention of defendants that the finding of the jury that plaintiff's negligence was not a substantial factor in causing the accident is against the weight of the evidence. It cannot be said that the verdict "could not have been reached on any fair interpretation of the evidence" (Lolik v Big V Supermarkets, 86 NY2d 744, 746 [internal quotation marks omitted]).
    With respect to the award of damages, defendants contended in their post-trial motion that the evidence is legally insufficient to support the award with respect to future lost wages and future medical expenses. We reject that contention. It is axiomatic that loss of earnings must be established with reasonable certainty . . . and the initial burden of proving lost wages is on the [plaintiff]' . . . Recovery for lost earning capacity is not limited to a plaintiff's actual earnings before the accident, however, and the assessment of damages may instead be based upon future probabilities' (Huff v Rodriguez, 45 AD3d 1430, 1433; see Kirschhoffer v Van Dyke, 173 AD2d 7, 10). At trial, plaintiff presented uncontroverted testimony in support of his claim for future lost wages that the construction company where he was employed as a supervisor paid him $4.50 less per hour than other supervisors because of his physical limitations, which limitations the medical proof established were the direct result of his injuries. This Court has previously determined that a plaintiff's testimony concerning earnings may alone be legally sufficient to support a claim for lost wages (seeDickerson v Woodbridge Constr. Group, 274 AD2d 945, 946; Butts v Braun, 204 AD2d 1069, 1069-1070). In this case, it cannot be said "that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v Hallmark Cards, 45 NY2d 493, 499). The same reasoning set forth in Cohen applies equally with respect to the award of damages for future medical expenses.
    All concur except Smith, J.P., and Pine, J., who dissent in part and vote to modify in accordance with the following Memorandum: We respectfully dissent in part and would set aside the award of damages for future lost wages. It is well settled that future lost wages must be established with reasonable certainty and that plaintiff had the initial burden of proof with respect to that issue (see generally Huff v Rodriguez, 45 AD3d 1430, 1433; Man-Kit Lei v City Univ. of N.Y., 33 AD3d 467, 469-470, lv denied 8 NY3d 806; Tassone v Mid-Valley Oil Co., 5 AD3d 931, 932, lv denied 3 NY3d 608). Here, the sole evidence presented at trial with respect to that issue was the unsubstantiated testimony of plaintiff, who testified that he earned $10 per hour as a manager following the accident, that other managers earned $15 per hour, and that, in his opinion, they received higher wages because the injuries he sustained in the accident rendered him unable to perform the physical labor they performed. Other than plaintiff's unsubstantiated opinions, there was no evidence establishing the reason for the pay differential or, indeed, whether there was such a pay differential. Such speculative and "[u]nsubstantiated testimony, without documentation, is insufficient to establish [future lost wages]" (Lodato v Greyhawk N. Am., LLC, 39 AD3d 494, 496). Although plaintiff was not required to present expert testimony to establish his claim for future lost wages (see generally Kirschhoffer v Van Dyke, 173 AD2d 7, 10), he nevertheless failed to meet his burden of establishing his future lost wages with the requisite reasonable certainty by, e.g., providing documentary evidence "demonstrating the difference between what he is now able to earn and what he could have earned if he had not been injured" (Burdick v Bratt, 203 AD2d 950, 951, lv denied 84 NY2d 801). Indeed, "the record is devoid of any W-2 forms, tax returns or other documentation of income earned . . . We thus conclude that, even if plaintiff's testimony [was] fully credited, [it was] insufficient to support the amount of damages awarded by the jury" (O'Brien v Mbugua, 49 AD3d 937, 940; see Faas v State of New York, 249 AD2d 731, 732-733). We therefore would modify the judgment by granting that part of defendants' post-trial motion seeking to set aside the award of damages for future lost wages and setting aside that award.
    Benson v. Lillie


    Appeal from an order of the Supreme Court, Chautauqua County (James H. Dillon, J.), entered July 8, 2009 in a personal injury action. The order denied defendants' motion for summary judgment dismissing the complaint.

    HODGSON RUSS LLP, BUFFALO (KYLE C. REEB OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
    LAW OFFICES OF RICHARD S. BINKO, CHEEKTOWAGA (SARA T. WALLITT OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

    It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
    Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when her vehicle, which had come to a complete stop at an intersection, was rear-ended by a vehicle driven by defendant Trevor M. Lillie and owned by defendant Suit-Kote Corp. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102 (d) as a result of the accident, and we conclude that Supreme Court properly denied their motion. In support of the motion, defendants submitted medical records of plaintiff indicating that she had cervical and lumbar spine injuries following the accident. Although defendants contended in support of their motion that those injuries were attributable to prior accidents, they failed to submit evidence establishing as a matter of law that the injuries were entirely attributable to those prior accidents and were not exacerbated by the accident in question (see Endres v Shelba D. Johnson Trucking, Inc., 60 AD3d 1481, 1483; McKenzie v Redl, 47 AD3d 775, 776-777).
    Entered: April 30, 2010
    DeJesus v. Cruz


    Baker, McEvoy, Morrissey & Moskovits, P.C., New York
    (Stacy R. Seldin of counsel), for appellants.
    Litman & Litman, P.C., East Williston (Jeffrey E. Litman of
    counsel), for respondent.
    Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered December 7, 2009, which, in an action for personal injuries sustained when plaintiff pedestrian was struck by an automobile driven by defendant Cruz and owned by defendant Marte, denied defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.
    Defendants established their prima facie entitlement to summary judgment by submitting the report of their expert orthopedist, who, after examining plaintiff and reviewing her records, found that plaintiff had normal range of motion in her left knee and that there was no finding suggesting a traumatic injury due to the accident. The expert further opined that plaintiff demonstrated normal range of motion in her cervical spine, and, with the exception of lateral movement, normal range of motion in her lumbar spine. Moreover, defendants' expert neurologist reported that all of plaintiff's complaints regarding her left knee and spine were due to preexisting, degenerative conditions unrelated to the accident (see Lopez v Abdul-Wahab, 67 AD3d 598 [2009]).
    In opposition, plaintiff proffered insufficient objective medical evidence contemporaneous with the accident to reveal significant range of motion limitations in her knee or spine resulting from the accident (see Ali v Khan, 50 AD3d 454 [2008]). This evidentiary requirement exists even where, as here, there has been surgery on the knee (see Jean v Kabaya, 63 AD3d 509, 510 [2009]). Furthermore, plaintiff's expert physician failed to address the findings of defendants' experts that plaintiff's knee and spinal conditions were due to preexisting, degenerative changes unrelated to any traumatic injury attributable to the accident (see Colon v Tavares, 60 AD3d 419 [2009]).
    The record also presents no triable issue of fact as to whether plaintiff sustained a "serious injury" under the 90/180-day prong of Insurance Law 5102(d). Plaintiff's claim that following the accident she was limited in her ability to perform her normal daily activities, is insufficient in the absence of objective medical evidence (see Nelson v Distant, 308 AD2d 338, 340 [2003]).
    Lazarus v. Perez


    Pollack, Pollack, Isaac & DeCiccio, New York (Jillian Rosen
    of counsel), for appellant.
    Baker, McEvoy, Morrissey & Moskovits, P.C., New York
    (Stacy R. Seldin of counsel), for respondents.
    Order, Supreme Court, Bronx County (Nelson S. Romn, J.), entered on or about May 22, 2008, which, to the extent appealable, denied plaintiff's motion to renew a prior order granting the motion by defendants Perez and Best Auto for summary judgment dismissing the complaint, unanimously affirmed, without costs.
    In the absence of new facts not offered on the prior motion that might have led to a different result (CPLR 2221[e]), plaintiff's motion for renewal was properly denied (see Rosado v Edmundo Castillo Inc., 54 AD3d 278, 279 [2008]). Even were we to consider the merits, we would find plaintiff's argument without substance. Although plaintiff's contemporaneous medical records and reports from South Africa were neither certified nor sworn, plaintiff could rely upon them because defendants referred to these documents in support of their motion for summary judgment. Nevertheless, these doctors discerned no significant abnormalities and found plaintiff to be "free of any neurological signs." Nor do plaintiff's medical records contain any quantitative assessment of a loss of range of motion, spinal defects or other serious abnormalities. It is well settled that contemporaneous, objective proof of injury, such as an expert's designation of a numeric percentage loss of range of motion or the extent or degree of physical limitation, is necessary to satisfy the statutory serious injury threshold (see Franchini v Palmieri, 1 NY3d 536, 537 [2003]; Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]).
    Plaintiff's argument with regard to the 90/180 rule (Insurance Law 5102[d]) is similarly unavailing. Despite plaintiff's contention that she missed some time from college as a result of her accident, she failed to submit medical evidence to show that she could not perform "substantially all of the material acts which constitute [her] usual and customary daily activities" (id.) for not less than 90 of the first 180 days following the accident.
    Megafu v Tower Insurance Company of New York


    I. Eric Abakporp, Brooklyn, N.Y., for appellant.
    Max W. Gershweir, New York, N.Y. (Joseph S. Wiener of
    counsel), for respondent.


    DECISION & ORDER
    In an action to recover damages for breach of an insurance policy, the plaintiff appeals from an order of the Supreme Court, Kings County (Starkey, J.), dated April 1, 2009, which denied his motion for summary judgment on the complaint and granted the defendant's cross motion for summary judgment dismissing the complaint.
    ORDERED that the order is affirmed, with costs.
    A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of a triable issue of fact (see Alverez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562). Here, in support of its cross motion for summary judgment, the defendant made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that it properly concluded that the subject premises were not covered under the policy at issue, and that it properly disclaimed coverage on that basis (see Marshall v Tower Ins. Co. of N.Y., 44 AD3d 1014, 1015). The plaintiff failed to raise a triable issue of fact in opposition to the cross motion, or make a prima facie showing in support of his own motion for summary judgment on the complaint.
    Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the complaint, and properly granted the defendant's cross motion for summary judgment dismissing the complaint.
    The plaintiff's remaining contentions are either not properly before this Court, or without merit.
    RIVERA, J.P., DILLON, FLORIO and BALKIN, JJ., concur.
    DAIL v MERCHANTS MUTUAL INSURANCE COMPANY

    Appeal from an order of the Supreme Court, Erie County (John F. O'Donnell, J.), entered January 20, 2009 in a breach of contract action. The order denied the motion of defendant to dismiss the complaint.


    RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (MARCO CERCONE OF COUNSEL), FOR DEFENDANT-APPELLANT.
    BURGETT & ROBBINS, LLP, JAMESTOWN (ROBERT A. LIEBERS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


    It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.


    Opinion by Carni, J.: This appeal presents the issue whether the one-year extension of time in CPLR 210 (a) to commence an action that is afforded to a decedent's representative applies to the standard two-year period of limitations contained in homeowner's insurance policies, such as defendant's policy, pursuant to Insurance Law 3404 (e). For the reasons that follow, we conclude that Supreme Court properly determined that it does and thus that the order denying defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7) should be affirmed.
    The underlying facts are not in dispute. On February 18, 2005, defendant issued a homeowner's policy to plaintiff's decedent. On December 5, 2005, while the policy was in effect, the insured premises and its contents were destroyed by fire. On October 31, 2006, defendant denied decedent's claim for policy benefits and, on July 5, 2007, decedent died. On May 16, 2008, plaintiff was issued letters testamentary appointing her as the executor of the insured's estate. On July 3, 2008, plaintiff commenced this action as executor of decedent's estate, seeking to recover under the policy. The "conditions" section of the policy provides in relevant part that "[n]o action can be brought [against us] unless the action is started within two years after the date of loss."
    Here, when measured from the date of the loss, i.e., December 5, 2005, the action, which as noted was commenced on July 3, 2008, exceeded the two-year period of limitations. Plaintiff contends, however, that the tolling provision of CPLR 210 (a) extended her time in which to commence this action until one year after decedent's death, or until July 5, 2008. We agree.
    CPLR 210 (a), entitled "Death of claimant," states: "Where a person entitled to commence an action dies before the expiration of the time within which the action must be commenced and the cause of action survives, an action may be commenced by his [or her] representative within one year after his [or her] death." Defendant contends that the Legislature did not include any language in CPLR 210 (a) that would permit the application of the death toll to a contractual period of limitations. Defendant also contends that the satisfaction of the two-year contractual period of limitations is a "condition precedent" to bringing an action against it and thus in any event is not subject to the statutory toll.
    Our review of the applicable case law in New York State discloses that the courts have uniformly applied tolling provisions to the two-year period of limitations contained in policies of insurance in accordance with Insurance Law 3404 (e). In S & J Deli v New York Prop. Ins. Underwriting Assn. (119 AD2d 652), the Second Department rejected the defendant insurer's contention that the period of limitations was a "condition precedent" and held that "[t]he toll contained in CPLR 203 (b) (5) is directly applicable to the limitations period set forth in a fire insurance policy" (id.). In addition, the First Department applied the "[i]nfancy, insanity" toll contained in CPLR 208 to the two-yearperiod of limitations in an insurance policy (Bookstein v Republic Ins. Co., 266 AD2d 113).
    We reject defendant's "condition precedent" theory inasmuch as the cause of action to recover damages for breach of contract based on a fire or a homeowner's insurance policy existed at common law and was not created by the insurance statute containing the two-year period of limitations (see S & J Deli, 119 AD2d 652; Insurance Law 3404 [e])[FN1]. It has never been incumbent upon an insured to plead and prove compliance with the applicable statute of limitations as a condition precedent in commencing a breach of contract action under the common law against an insurer. Moreover, we perceive no indication in the language of Insurance Law 3404 (e) indicating that the two-year period of limitations was intended to be in the nature of a condition precedent (cf. Kahn v Trans World Airlines, 82 AD2d 696, 709).
    We therefore conclude that the "death toll" in CPLR 210 (a) is applicable to an action against an insurer where the policy at issue contains the two-year limitations period contained in Insurance Law 3404 (e).
    Accordingly, we conclude that the order should be affirmed.
    COOPER v NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY

    Appeal from an order of the Supreme Court, Erie County (Paula L. Feroleto, J.), entered February 19, 2009 in a breach of contract action. The order denied defendant's motion to dismiss the amended complaint.


    RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (MARCO CERCONE OF COUNSEL), FOR DEFENDANT-APPELLANT.
    HOGAN WILLIG, AMHERST (JENNIFER L. FAY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


    It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion in part and dismissing the second through sixth causes of action and the claim for punitive damages and as modified the order is affirmed without costs.
    Memorandum: Plaintiff commenced this action against her insurer after her claim for property damage to her home was denied. Supreme Court properly denied defendant's motion to dismiss the amended complaint insofar as defendant contended that the action was barred by the contractual limitations period in its insurance policy, i.e., two years. Although defendant met its initial burden of proof, plaintiff raised an issue of fact whether an exception to the contractual limitations period applies (see Snyder v Allstate Ins. Co., 70 AD3d 670; see also Phillip F. v Roman Catholic Diocese of Las Vegas, 70 AD3d 765). "Construing the amended complaint in the generous light to which it is entitled on a motion to dismiss" (New York Univ. v Continental Ins. Co., 87 NY2d 308, 318, citing Leon v Martinez, 84 NY2d 83, 87-88), we conclude that it alleges facts that, if true, support a determination that defendant should be estopped from relying on the contractual limitations period because it "engaged in a course of conduct [that] lulled [her] into inactivity in the belief that [her] claim would ultimately be processed" (Minichello v Northern Assur. Co. of Am., 304 AD2d 731, 732; cf. Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966; Neary v Nationwide Mut. Fire Ins. Co., 17 AD3d 331).
    We further conclude that the court properly denied defendant's motion insofar as defendant contended that dismissal of the amended complaint was warranted based on the alleged willful failure of plaintiff to cooperate with its investigation of her claim. An insurer's burden in attempting to disclaim coverage based on an insured's alleged willful lack of cooperation "has been termed a heavy one . . . and requires a showing that the insured's attitude was one of willful and avowed obstruction . . . involving a pattern of noncooperation for which no reasonable excuse [is] offered" (Ingarra v General Acc./PG Ins. Co. of N.Y., 273 AD2d 766, 767 [internal quotation marks omitted]; see Dlugosz v Exchange Mut. Ins. Co., 176 AD2d 1011, 1013). Here, although plaintiff admittedly did not provide defendant with all of the documents requested by it, she has offered reasons for failing to do so, and the issue concerning the validity of those reasons cannot be determined as a matter of law on the record before us.
    We agree with defendant, however, that the court erred in denying its motion insofar as it sought dismissal of the second through sixth causes of action for failure to state a cause of action (see CPLR 3211 [a] [7]), as well as the claim for punitive damages, and we therefore modify the order accordingly. The second and third causes of action, for defendant's bad faith in refusing to settle plaintiff's claim, should have been dismissed because they do not allege conduct by defendant constituting the requisite "gross disregard of the insured's interests" necessary to support such causes of action (Cappelletti v Unigard Ins. Co., 222 AD2d 1029, 1032 [internal quotation marks omitted]; see Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 453, rearg denied 83 NY2d 779). The fourth and fifth causes of action, for fraud, should have been dismissed because they merely restate plaintiff's first cause of action, for breach of contract (see Schunk v New York Cent. Mut. Fire Ins. Co., 237 AD2d 913, 915; Eastman Kodak Co. v Roopak Enters., 202 AD2d 220, 222).
    The sixth cause of action, for the violation of General Business Law 349, likewise should have been dismissed inasmuch as this is a private contractual dispute, "unique to the parties" (Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25), and the statute "was not intended to supplant an action to recover damages for breach of contract between parties to an arm's length contract" (Teller v Bill Hayes, Ltd., 213 AD2d 141, 148, lv dismissed in part and denied in part 87 NY2d 937; see Graham v Eagle Distrib. Co., 224 AD2d 921, lv dismissed 88 NY2d 962). Finally, the claim for punitive damages should have been dismissed inasmuch as there is no indication that defendant's alleged conduct was "activated by evil or reprehensible motives" (Gravitt v Newman, 114 AD2d 1000, 1002; see 235 E. 4th Street, LLC v Dime Sav. Bank of Williamsburgh, 65 AD3d 976; Peltier v Wakhloo, 20 AD3d 870, 871).
    GRAVINO v ALLSTATE INSURANCE COMPANY




    Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (Donna M. Siwek, J.), entered August 18, 2009 in a breach of contract action. The order and judgment denied defendant's motion for summary judgment and granted plaintiff's cross motion for partial summary judgment.


    LAW OFFICES OF MARY A. BJORK, ROCHESTER (THOMAS P. DURKIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
    LAW OFFICES OF MICHAEL PILARZ, BUFFALO (MICHAEL PILARZ OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


    It is hereby ORDERED that the order and judgment so appealed from is unanimously reversed on the law without costs, the motion is granted, the complaint is dismissed, the cross motion is denied and the declaration is vacated.
    Memorandum: Plaintiff commenced this action against his insurer seeking coverage for damage to an in-ground swimming pool pursuant to the terms of his homeowners' insurance policy. Plaintiff had drained the pool in June in order to paint it, but the painting was delayed due to rain. On the fifth day after draining the pool, plaintiff noticed that one end of the pool had lifted out of the ground and that the concrete around the pool had been damaged. Defendant disclaimed coverage for the loss based on, inter alia, a provision in the policy excluding damage to a swimming pool caused by "pressure or weight of water."
    We conclude that Supreme Court erred in granting plaintiff's cross motion for partial summary judgment "declaring" that the policy covered the damage to the swimming pool. Indeed, we vacate the declaration inasmuch as this is an action for breach of contract and is not a declaratory judgment action (see Niagara Falls Water Bd. v City of Niagara Falls, 64 AD3d 1142, 1144). We conclude that the court instead should have granted defendant's motion for summary judgment dismissing the complaint. Defendant met its initial burden on its motion by establishing as a matter of law that the exclusion for damages caused by "pressure or weight of water" upon which defendant relied unambiguously applied to plaintiff's loss, and plaintiff failed to raise a triable issue of fact in opposition (see generally Zuckerman v City of New York, 49 NY2d 557, 562). The experts for each party agreed that the pool had lifted from the ground because of the hydrostatic pressure in the soil surrounding the pool. The fact that plaintiff's expert stated in his affidavit that the damage would not have occurred if plaintiff had not emptied the pool does not remove the loss from the policy exclusion. The policy expressly provides that, where the damage has two or more causes, the loss is not covered if the "predominant cause(s) of loss is (are) excluded" under the policy. Here, "[t]o determine causation, [we must] look[] to the efficient or dominant cause of the loss', not the event that merely set the stage for that later event' " (Kosich v Metropolitan Prop. & Cas. Ins. Co., 214 AD2d 992, lv denied 86 NY2d 707). Here, although the drainage of the pool may have been a precondition to the lifting of the pool from the ground, we conclude that defendant established as a matter of law that the groundwater pressure was the "predominant cause" of the loss, thus rendering applicable the policy exclusion for damages caused by "pressure or weight of water" (see Jahier v Liberty Mut. Group, 64 AD3d 683, 685).

     

     

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