Back to Top

Coverage Pointers - Volume XI, No. 3

Dear Coverage Pointers Subscribers:

Greetings from Prague

I trust you will forgive the brevity and witlessness (if that's an acceptable descriptor) of this week's letter.  It's been a very busy fortnight.  The first week was spent in Munich for the FDCC Annual Meeting.  The venue was fantastic, the educational program top notch and we had a chance to visit with great friends.  On Saturday we took a train to Berlin and spent three very interesting days visiting many very moving and significant sites.  Tuesday we traveled by train to the Czech Republic and this issue is coming to you from the third floor of the Prague Marriott.  What a beautiful city and one that escaped many of the physical ravages of the Second World War.  Dresden, fire bombed in 1945, is only a couple of short railway stops away.

Diane F. Bosse Joins Hurwitz & Fine, P.C.

I cannot tell you how excited I am by this announcement.

Diana Bosse is a jewel and I am delighted to welcome her to our firm and to our coverage team.

Diane F. Bosse has practiced law in Buffalo, New York for over 30 years. She has chaired the New York State Board of Law Examiners since 2001 and served on the Board of Trustees of the National Conference of Bar Examiners from 1999 to 2008 (Chair, 2006-2007). Diane is a past president of the Defense Trial Lawyers of Western New York, and a past member of the boards of directors of the Bar Association of Erie County and of the Western New York Trial Lawyers Association.

She is nationally known, respected and admired by all who know her.  In 2001, Diane received the Award of Merit from the Bar Association of Erie County, and she received the Distinguished Alumnus Award for Public Service from the University at Buffalo Law Alumni Association in 2005. She was honored in 2006 as the Defense Trial Lawyer of the Year by the Defense Trial Lawyers of Western New York. Ms. Bosse received her B.A. and J.D. degrees from the State University of New York at Buffalo.

On a personal note, I've known Diane for three decades.  She is insightful, creative and an absolute pleasure.  We are thrilled to have her join us.  You will love working with her.

Welcome Farmers

A special welcome to the 60+ new subscribers from the Farmers organization.  We're delighted to have you aboard.

Audrey's Angles:

Okay we certainly have a trend to report.  This is the second edition where there have been decisions focusing on the sufficiency or lack thereof of peer review and IME reports as well as the treating physician or chiropractor's records.  We cannot stress that it is important for both sides in proving your case that the physician or chiropractor must provide some explanation why the service was necessary.  It is not sufficient just to order the MRI without some explanation as to why it is needed and how it will change the patient's course of care.  On the other hand, it is not sufficient to deny durable medical equipment when your peer reviewer is relying upon journal articles that are not specific to the case at hand. 

With regard to the last issue, we would submit that if the peer reviewer had commented on the lack of articles specific to this type of case and why the particular article was relied upon perhaps there would be a stronger argument on lack of medical necessity.

Overall, it comes back to the issue of being able to provide a proper medical opinion on whether the service is necessary, while addressing the specific case in front of you.  If the individual presents with positive objective findings that remain constant for all three examinations performed then it should not be summarily stated that treatment is no longer necessary.  Okay, I will get off my soapbox....However, I do holdout an invitation for training on this issue.  If you are interested then send me an email at [email protected]

Audrey

Editor's Note:  We congratulate Audrey on yet another accomplishment: her selection as one of Western New York's 40 Under Forty by Buffalo Business First. 

Forty individuals - all under the age of 40 - were recognized for their professional success and community involvement. A six-member panel made the selections.

"Each of these individuals has made it their mission to contribute in extraordinary ways to their communities and the quality of life we all enjoy in the Buffalo Niagara region," said Jack Connors, Business First publisher and president.

Attal-lawyer!

One Hundred Year Ago:  Nation Overrun By Cars?

Syracuse Post Standard

August 6, 1910, page 2

ARE TOO MANY PERSONS BUYING AUTOMOBILES?

Are too many persons in the United Slates buying automobiles? Has the popularity of the motor car reached a stage where it can be said to threaten the financial stability of the nation?

Is it true that men have been mortgaging their homes and farms to purchase motor cars, as one or two bankers in Kansas have asserted?

These are questions of particular interest in motoring circles. Also they are questions of vital importance to the manufacturing industry. In discussing them, President Walter B. Flanders of the E-M-F Company says: "There are and always will be a lot of gossips - some of them male, too - who will be perniciously interested in the affairs of their neighbors. An accomplished gossip will accumulate and spread a lot of misinformation, particularly regarding persons of whom he is jealous. That is the common source of rumor regarding Individual oases of alleged installment plan purchase of automobiles, a system as yet, I believe confined almost entirely to mail order cars and mushroom firms, whose factories are merely miniature assembly plants. It is safe to say that 50 per cent, of the season's retail sales have been made on a cash basis. Adherence to this rule has been one of the greatest advantages of the industry.

"Never in my experience have I known or heard of a man mortgaging his home to purchase an automobile. Such cases may exist, but if they do, they are merely testimony to the existence of a class devoid of business sense or frugality, the members of which would have expended their entire resources In some other way.

"The time is long past in which existed a common belief that the motor car was a pleasure vehicle available only to the rich. As a matter of fact, the prosperous farmer is now by all odds the largest buyer in the market. One of the largest -- perhaps the next largest - class of automobile purchasers is the medical profession which has absorbed, a remarkable amount of light cars of the runabout order, in particular."

Editor's Note:  The E-M-F Company was an early American automobile manufacturer that produced automobiles from 1909 to 1912.

It's In 1910, the top auto manufacturer was Ford, that produced 32,053 cars, followed by Buick (30,525), Willys Overland (15,598) and then E-M-F (15,020)

The name E-M-F was gleaned from the initials of the three company founders: Barney Everitt - a custom auto-body builder from Detroit, William Metzger, formerly of Cadillac, and Walter Flanders, who had served as Henry Ford's production manager.  E-M-F was acquired by Studebaker in 1911.  Flanders died in June 1923 in an auto accident.  He had been married five times.

From Steve Peiper, the Potentate of Property Insurance:

History tells us that the Summer of Love was 1967.  After this week's edition of potpourri, we can safely say that 2010 is not a sequel insofar as the legal community is concerned.  This issue is full of attempts to snooker the other side through hyper-technical defects. 

We have a rejected Answer that was timely served, followed by a default motion.  We have a change in venue argument that also was denied by the Third Department.  Finally, we have an attempt to avoid summary judgment by arguing that the Notice of Motion was not specific enough, which, once again, was denied. 

As we head toward fall and football, enjoy our last bit of summer and give someone a hug (err, courtesy of a break). You'll be glad you did.  See you in two weeks, cheers!

Steve

[email protected]

Insurance Fraud 100 Years Ago:

Washington Post

August 6, 1910

TRIED TO MAIM SELF

Major Bousman, Detective Says, Was Not Murdered

Supposed Victim of Assassin, It Is Asserted He Place Dynamite Cartridge Between His Feet, and Ignited It With His Cigar, in Hope of Collecting on Accident Policies Recently Taken Out

 

Special to The Washington Post: Ridgeway, Va.,-A sensation has been created in this section of the State over the report of Private Detective Joseph Funk, who has been engaged in working out the assassination case in which Mayor H. A. Bousman was blown to his death by dynamite. The detective's report to the Ridgeway town council was that Bousman caused his own death, when he endeavored to injure himself with dynamite in order to collect accident insurance policies in the amount of $6,000, and thus save himself and family from financial crises which it has been discovered since the tragedy he was facing.

Detective Funk followed innumerable clues, to find a cold trail at the end and his report has been accepted by the Council and by a majority of people in the community.  This was especially true when the financial condition of Bousman was learned.  He owed $2,500 and to meet this had only $70 to his credit at the bank and had no other resources.  Peculiar and despondent actions of Bousman previous to the explosion are also recalled

Paper Bag Alleged Clue

The detective believes that he held the stick of dynamite between his feet or lower legs, while he ignited the fuse with his burning cigar, as he lay on the lawn. A paper bag found wrapped about some dynamite in bushes near the mayor's home Tuesday, following the explosion, was identified as one he, got at a store the day of his death.  When he stopped to secure a cooling drink two men told of having seen Bousman filling up the clumps with dynamite and he was seen in the clumps of bushes where the sticks .of dynamite were found after the tragedy.

Other Theories Advanced

Again, there was no hole in the ground where the explosion occurred and the detective argued that both limbs would not have been blown off at exactly the same place had the dynamite been thrown from a distance at him. The officer told the council it was foolish to spend money looking for an assassin. .

It is the opinion that the policies will be paid, and the case can hardly be proven in such a manner to show a cause for their forfeiture. Two policies, one for $1000 and another for $2000 were taken out a short time ago, Bousman giving his notes for the premiums.  [Other reports indicated that he also had an accident policy for $6000}.

KOHANE'S COVERAGE CORNER
Dan D. Kohane

[email protected]

  • Learn How to Count Days When Evaluating the Effectiveness of a Cancellation;  Priority of SUM Coverage Reviewed When Multiple Policies Involved
  • SUM Carrier Cannot Complain if Subrogation Rights Not Hampered Without Its Permission

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

  • Subjective Complaints of Pain Do Not Satisfy Threshold
  • Plaintiff's Expert Fails to Rule Out Preexisting Degenerative Condition
  • Lack of Contemporaneous Findings Means No Triable Issue 

AUDREY'S ANGLES ON NO-FAULT
Audrey Seeley

ARBITRATION

  •         Lack of Medical Records to Support MRI Does Not Establish Medical Necessity
  •         Referring Chiropractor's Failure to Mention In Notes Referral or Need for MRIs Fatal to Claim
  •         Peer Reviewer's Reliance Upon Journals Unrelated to Case at Hand Unpersuasive

LITIGATION

  • Plaintiff's Failure to Rebut Peer Review Results in Plaintiff's SJ Motion Being Denied
  • Insurer Did Not Demonstrate Scheduled EUO Timely
  • Plaintiff's Failure to Rebut Peer Reviewer's Conclusions Insufficient to Oppose Insurer's SJ Motion
  • Insurer Demonstrates Failure to Attend Scheduled EUOs
  • Third-Party Billing Company Affidavit Insufficient to Establish Prima Facie Case

PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper

[email protected]

Of Property

  • Insured's Claim for Coverage Is Dismissed Where It Cannot Establish a "Claim" Under the Policy  

And Potpourri

  • For Labor Law 241(6) Purposes, Notice of a Defective Condition to Subcontractor Is Notice to the Construction Manager/General Contractor
  • Request for Relief that Is Not in the Notice of Motion, But Is Set Forth in the Wherefore Clause of Supporting Papers Is Sufficient
  • Improper Venue Does Not Impact a Court's Subject Matter Jurisdiction
  • Remember:  Moving to Vacate a Default Requires BOTH a Reasonable Excuse AND a Meritorious Defense

FIJAL'S FEDERAL FOCUS
Katherine A. Fijal

[email protected]

  • Commercial Auto Policy - What Constitutes "Use of an Auto"?

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

  • Application to Stay Arbitration Not Untimely
  • Court Requires Party to Be a Signatory to the Contract in Order to Qualify for Coverage as an Additional Insured
  • Court Renders Life Insurance Policies Void Ab Initio Based on Misrepresentations Regarding the Insured's Health and Other Policies Previously Issued on Her Life
  • Release Not Effective to Bar Claims for New Property Damage that Arose Out of the Same Act of Negligence

EARL'S PEARLS
Earl K. Cantwell

[email protected]

ADDITIONAL INSURED STATUS -

RECENT NEW YORK DECISION

All for now.  We will be back in Buffalo in just a couple of days to enjoy the beautiful Western New York summer.  Thanks for being so supportive.

 

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
Diane F. Bosse


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
Diane F. Bosse

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]

7/27/10           Matter of State Farm Mutual Auto. Ins. Co. v. Thomas
Appellate Division, Second Department
Learn How to Count Days When Evaluating the Effectiveness of a Cancellation;  Priority of SUM Coverage Reviewed When Multiple Policies Involved
On August 27, 2005, Thomas was a passenger in a bus operated by Schoolman and insured by National Interstate.  It was traveling in New Jersey when the bus collided with a vehicle owned by Dock, allegedly uninsured.

When Dock’s carrier claimed it did not provide coverage, Thomas filed an uninsured motorist claim with his own carrier, State Farm.  That insurer sought a stay claiming that Thomas did not establish that Dock's vehicle was uninsured.
At some point, Mercury Indemnity insured Dock but had canceled the policy by notice issued August 8, 2005 for non-payment of premium, effective August 23, 2005. State Farm also contended that the National Interstate policy insuring the bus was first in line for SUM coverage.
"No notice of cancellation of a policy to which section 2 applies shall be effective unless mailed or delivered by the insurer to the named insured at least 20 days prior to the effective date of cancellation; provided, however, that where cancellation is for nonpayment of premium at least 15 days' notice of cancellation accompanied by the reason therefor shall be given."

Under NJ law, the cancellation had to be given a full 15 days prior to its effective date and only 14 days notice was given.  However, instead of rendering the cancellation a nullity, it merely extends the policy one additional day and was still canceled prior to the accident.
However, on the issue of priority, the policy provides the following order of priority:
(a) A policy covering a motor vehicle occupied by the injured person at the time of the accident;
(b) A policy covering a motor vehicle not involved in the accident under which the injured person is a named insured; and
(c) A policy covering a motor vehicle not involved in the accident under which the injured person is an insured other than a named insured [emphasis supplied].
Schoolman's policy with National Interstate covered the vehicle occupied by Thomas at the time of the accident. The petitioner's policy with Thomas covered a motor vehicle not involved in the accident under which Thomas was a named insured. Thus, under the terms of the petitioner's policy, National Interstate's policy was higher in priority than the petitioner's.
Editor’s Note:  When counting days, we excluded the day in which the counting starts. 

7/27/10           Matter of Eveready Insurance Co. v. Vilmond
Appellate Division, Second Department
SUM Carrier Cannot Complain if Subrogation Rights Not Hampered Without Its Permission
On June 28, 2006, Vilmond was hurt in a motor vehicle accident with another car insured under a policy issued by American Vehicle Insurance (AVI). Vilmond reached an agreement with AVI for its policy limit of $10,000, and then sought approval from her insurer, Eveready. However, prior to receiving such approval, Vilmond's attorneys accepted and negotiated a settlement check in the sum of $10,000 from AVI.  No release was issued.
When Vilmond commenced an arbitration for SUM (underinsured motorists) benefits from Eveready, the SUM carrier sought a stay, arguing that the policyholder had violated the terms of the underinsured motorists endorsement by settling without the carrier’s permission.  The court disagreed, holding that since a release was not issued, the SUM carrier’s subrogation rights were not destroyed and therefore the policy was not violated.

Editor’s Note:  Policy limit of $10,000?  Perhaps that was all that was left in the tortfeasor’s coverage.

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

7/29/10           Houston v. Hofmann
Appellate Division, Third Department
Subjective Complaints of Pain Do Not Satisfy Threshold

Plaintiff claimed serious injury under 4 categories: permanent loss of use, permanent consequential limitation, significant limitation and 90/180-day.  On appeal, the trial court’s grant of summary judgment to defendant is affirmed.

Defendant proffered copies of plaintiff’s bill of particulars and deposition, and 2 IME reports in support of the motion.  Neither the bill of particulars nor the deposition testimony supported the claim under the 90/180-day category and, in fact, were contradicted by the medical records.  The IME reports referenced plaintiff’s medical reports and established that plaintiff went to the hospital on the day of the accident, was diagnosed with a sprain, was told to limit her activities for 3 days and then follow up with her physician.  She did not seek further treatment for almost a month, and then attended 8 sessions of physical therapy.  Upon discharge, it was noted that she had full range of motion.  Both IME doctors determined plaintiff had non-permanent strains which had resolved.

In opposition, plaintiff submitted the affidavit of her treating chiropractor who found spasm and limited range-of-motion.  He did not, however, identify the diagnostic tests used making it impossible to tell whether the limitations based on objective tests or subjective complaints.  In addition, the affidavit was made 2 ½  years after the accident so his opinion that the type of injury would have prevented plaintiff from performing her usual activities was insufficient to support the claim under the 90/180-day category.  Furthermore, the affidavit was made 18 months after his examination, was not based on a recent examination, contained no opinion as to the permanency of plaintiff’s injuries, and did not explain plaintiff’s cessation of treatment.  As such, it was insufficient as a matter of law.

7/27/10                Perez v. Giouroukos
Appellate Division, First Department
Plaintiff’s Expert Fails to Rule Out Preexisting Degenerative Condition

On appeal, the trial court is reversed and defendants’ motion is granted.  Defendants’ radiologist found that plaintiff’s herniated discs were preexisting and due to a degenerative condition.  Plaintiff’s expert, however, both failed to rebut that the herniations were due to a preexisting degenerative condition or offer medical evidence that plaintiff was unable to perform substantially all her normal activities to qualify under the 90/180-day category.

7/27/10                Srebnick v. Quinn
Appellate Division, Second Department
Lack of Contemporaneous Findings Means No Triable Issue

Here, the trial court’s dismissal of plaintiff’s complaint is affirmed where plaintiff did not proffer any medical evidence that was contemporaneous with the accident to show any significant limitations in his spine or knees such as would support his claim under the permanent consequential limitation and/or significant limitation of use categories.

 

AUDREY’S ANGLES ON NO-FAULT
Audrey Seeley
ARBITRATION

7/29/10                Applicant v. Respondent
Arbitrator Veronica K. O’Connor, Erie County
Lack of Medical Records to Support MRI Does Not Establish Medical Necessity

The Applicant sought reimbursement for a thoracic spine MRI conducted allegedly as a result of his patient’s April 22, 2006, motor vehicle accident.  The insurer denied the MRI based upon the independent medical exam of Dr. Steven Hausmann.  The assigned arbitrator reviewed Dr. Hausmann’s report but concluded that the Applicant had not demonstrated medical necessity.  Specifically, the treating orthopedic surgeon’s records note thoracic spine complaints but made no mention of the need for a thoracic spine MRI.  Rather, only a lumbar spine MRI was contemplated and recommended by the treating surgeon.  Also, while a prescription for the thoracic spine MRI was included there were no supporting medical records for the testing.  Thus, the denial was proper.

7/29/10                Buffalo Diagnostic Imaging v. Respondent
Arbitrator Veronica K. O’Connor, Erie County
Referring Chiropractor’s Failure to Mention In Notes Referral or Need for MRIs Fatal to Claim

The Applicant sought reimbursement for cervical, thoracic, and lumbar spine MRIs allegedly arising out of the eligible injured person’s August 20, 2009, motor vehicle accident.  The insurer denied the MRIs based upon the peer review of Kevin S. Portnoy, D.C. who concluded that the treating chiropractor, John Ward, D.C., did not have any documentation that demonstrated neurological deficits warranting the testing or how the testing would change the course of treatment.

The assigned arbitrator determined that the denial for the MRIs was proper.  The assigned arbitrator specifically noted that the treating chiropractor failed to even mention the need and referral for the MRIs. 

7/26/10                Elite Medical Supply v. Respondent
Arbitrator Kent L. Benziger, Erie County
Peer Reviewer’s Reliance Upon Journals Unrelated to Case at Hand Unpersuasive

The Applicant sought reimbursement of an LSO brace, TENS Unit, and cervical traction collar prescribed by John Ward, D.C.  The eligible injured person, a 19-year old female, was involved in an October 22, 2009, motor vehicle accident resulting in neck and back pain.  On December 16, 2009, Mr. Ward prescribed her an LSO brace, TENS Unit, and cervical traction collar.  The insurer denied the durable medical equipment based upon the peer review of Robert Sohn, D.C.  Mr. Sohn opined that the LSO brace was contraindicated as it would immobilize the area instead of restoring joint mobility which was the goal of chiropractic care.  Also, the TENS Unit was opined to be unnecessary for home use without proper supervision.  Finally, the cervical traction collar would cause an exacerbation of the symptoms and could cause a new injury.  While Mr. Sohn supported his conclusions with a multitude of medical journal articles, the assigned arbitrator was not persuaded.  This is because the articles relied upon related to scenarios completely different than what was presented in this case.  Specifically, one article regarding LSO braces was geared toward reducing workplace injuries and not toward the use of same after a motor vehicle accident.
LITIGATION
7/22/10                Alfa Medical Supplies, Inc. a/a/o Zoila Correa v. GEICO Gen. Ins. Co.
Appellate Term, Second Department
Plaintiff’s Failure to Rebut Peer Review Results in Plaintiff’s SJ Motion Being Denied
Plaintiff’s summary judgment should have been denied as the insurer presented unrebutted evidence that the peer review report set forth sufficient factual and medical rationale to establish lack of medical necessity.

7/22/10                Infinity Health Products, Ltd. a/a/o Jessica Walters v. Progressive Ins. Co.
Appellate Term, Second Department,
Insurer Did Not Demonstrate Scheduled EUO Timely
Plaintiff’s summary judgment was properly granted as the insurer failed to demonstrate the assignor’s failure to appear for scheduled examinations under oath (“EUO”).  The insurer did not establish that the EUO scheduling letters were timely mailed thereby tolling the 30 day timeframe.

7/22/10                Yklik, Inc. a/a/o Lydell J. Kirkland v. GEICO Ins. Co.
Appellate Term, Second Department
Plaintiff’s Failure to Rebut Peer Reviewer’s Conclusions Insufficient to Oppose Insurer’s SJ Motion
The insurer’s cross-motion for summary judgment should have been granted as the plaintiff failed to submit a doctor’s affirmation which meaningfully referred to or rebut the conclusions set forth in the peer review reports.

7/22/10                Points of Health Acupuncture, P.C. a/a/o Pasquale Caccamo v. Lancer Ins. Co.
Appellate Term, Second Department
Insurer Demonstrates Failure to Attend Scheduled EUOs
The insurer’s partial summary judgment motion should have been granted as it established failure to appear for scheduled examinations under oath (“EUO”).  The insurer submitted an affirmation from the partner at the law firm who was to conduct the EUO.  That attorney’s affirmation set forth the firm’s practice and procedure for mailing EUO scheduling letters.  Further, the attorney’s affirmation also set forth sufficient facts that the plaintiff failed to appear at the firm for the EUO.

7/22/10                Axis Chiropractic, PLLC a/a/o Ricardo Herrera v. GEICO Gen. Ins. Co.
Appellate Term, Second Department
Third-Party Billing Company Affidavit Insufficient to Establish Prima Facie Case
Plaintiff’s summary judgment was properly denied as the affidavit from a third-party billing company was insufficient to establish the plaintiff’s business practices and procedures in generating and mailing bills in a timely fashion.

PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper

[email protected]

Of Property

7/27/10                Valentin v Mann & Just, LLP
Appellate Division, Second Department
Insured’s Claim for Coverage Is Dismissed Where It Cannot Establish a “Claim” Under the Policy
Defendant Mann & Just commenced a third-party action against Philadelphia Insurance Company seeking coverage under their “claims made” professional liability policy.  In order for coverage to trigger, the insured must establish that the events giving rise to the lawsuit qualify as a “claim” as that term is defined by the policy.  Where Mann & Just were unable to demonstrate a “claim” under the policy, the Court held that it failed to meet its burden of establishing the existence coverage.   Accordingly, the third-party Complaint was summarily dismissed.

And Potpourri

08/03/10              Salsinha v Malcolm Pirnie, Inc.
Appellate Division, First Department
For Labor Law 241(6) Purposes, Notice of a Defective Condition to Subcontractor Is Notice to the Construction Manager/General Contractor
Plaintiff commenced the instant action alleging a violation of Law Law § 241(6), or more specifically, a violation of the Industrial Code’s requirement that unsafe conditions on machines be remedied upon actual notice.  Essentially, plaintiff argued that he was injured as a result of a broken door on the truck he was operating. Defendant Malcolm Pirnie was the Construction Manager at the project, but in this capacity was allegedly in charge of the construction project (we note that its status as a GC or CM could not be determined on the record submitted to the Court). 

In any event, Malcolm Pirnie moved for summary judgment on the basis that the door was not a defective or unsafe condition.  Moreover, Malcolm Pirnie also argued that it had no notice of the condition even if it was defective or unsafe.  The First Department noted that a question of fact existed as to whether the broken door was a defective or unsafe condition.  However, it ruled as a matter of law that notice of the condition to the plaintiff’s employer constituted notice of the condition to all parties under the statute.

07/27/10              Shaw v RPA Associates, LLC
Appellate Division, Second Department
Request for Relief that Is Not in the Notice of Motion, But Is Set Forth in the Wherefore Clause of Supporting Papers Is Sufficient
Plaintiff commenced this action after allegedly sustaining injury while in the course of his employment.  Plaintiff’s claims were premised upon violations of Labor Law § 240(1), Labor Law § 241(6), Labor Law § 200, as well as allegations of common law negligence.  Eventually, defendant RPA moved for summary judgment against all four theories of recovery plead by plaintiff.  Such motion was granted by the trial court.

On appeal, plaintiff alleged that RPA had not requested relief from all of the claims in its Notice of Motion.  Therefore, plaintiff reasoned that the trial court did not have the ability to dismiss plaintiff’s entire case. 

In affirming the trial court’s denial, the Second Department independently addressed the evidence submitted in support of defendant’s motion for summary judgment.  Further, the Court noted that the “wherefore” clause of defendant’s attorney affidavit in support of the summary judgment motion clearly requested the “entire complaint be dismissed.”  The Second Department noted that a Court may grant relief based upon a general request if the relief granted is “not too dramatically unlike the relief sought, and there is no prejudice to any party.” 

07/22/10              Pike Company, Inc. v County of Albany v. XL Specialty Ins. Co.
Appellate Division, Third Department
Improper Venue Does Not Impact a Court’s Subject Matter Jurisdiction
Plaintiff commenced the above-captioned against the County of Albany seeking to enforce a surety bond due to alleged breaches of contract surrounding the construction of a new courthouse in Albany, New York.  The action was originally filed in Saratoga County, but venue was ultimately changed to Albany County were the nexus of the dispute was located. 

Thereafter, the County of Albany commenced a third-party action against XL Specialty.  Although the County of Albany apparently tried to file the third-party Complaint in Albany County, the case file had not yet been transferred from Saratoga County at that time.  As such, the County simply filed its third-party action in Saratoga County, and the entire file was transferred, eventually, to Albany County. 

Because the third-party Complaint was filed in Saratoga County after the Order changing venue was granted, XL Specialty moved to dismiss the County’s claim on the basis that Saratoga County did not have subject matter jurisdiction over the case.  The trial court disagreed, and denied XL Specialty’s motion to dismiss.

The Third Department in affirming the trial court stated that the issue was not one of subject matter jurisdiction (as the Supreme Court is a court of general jurisdiction), but rather one of venue under CPLR § 511(d).  Accordingly, the Court reasoned that the supposed defect resulted in nothing more than “technical, non-prejudicial procedural misstep.”  It follows that the Court did not believe that the trial court abused its discretion in disregarding XL’s motion.  Under CPRL § 2001, a trial court may disregard a “mistake in the filing process that does not impact subject matter jurisdiction.” 

07/22/2010         Dinstber v Allstate Insurance Company
Appellate Division, Third Department
Remember:  Moving to Vacate a Default Requires BOTH a Reasonable Excuse AND a Meritorious Defense
Plaintiff commenced this action by filing a Verified Complaint with the Cortland County Clerk’s Office.  He later served defendant via the Secretary of State on or about July 29, 2008.  It appears that defendant did not receive the Complaint until August 21, 2008.   After plaintiff refused to grant an extension, defendant timely interposed an Answer on August 28, 2008.  However, because the Answer was not properly verified, plaintiff rejected it.  Thereafter, defendant served an Amended Verified Answer on September 4, 2008.

This time plaintiff rejected it for being untimely, and moved for a default judgment.  In response, defendant cross-moved to compel plaintiff to accept its Answer.  Not surprisingly, the trial court permitted defendant to appear, and plaintiff commenced the instant appeal.  On appeal, the Third Department noted that defendant’s papers established a reasonable excuse for the delay, as well as a potentially meritorious defense.  Given the relatively short delay, and the lack of prejudice to the plaintiff, the trial court’s decision was affirmed.

FIJAL’S FEDERAL FOCUS
Katherine A. Fijal

[email protected]

 7/29/10              Employers Mutual Casualty Company v. John Miguel Bonilla
United States Court of Appeals, Fifth Circuit – Applying Texas Law
Commercial Auto Policy – What Constitutes “Use of an Auto”?

Juan Miguel Bonilla leased a mobile catering truck from Jolly Chef Express, Inc., in Dallas Texas.  On a daily basis Bonilla hired a driver and cook for each of his trucks.  At the end of each day the driver and cook would return to the Commissary to clean the truck and prepare for the next day’s route.

On February 13, 2002, Bonilla hired Fabricio Fernandez to drive and Isabel Molina to serve as a cook.  Molina and Fernandez completed their route and returned the truck to Jolly Chef’s lot.  While the truck was parked, Fernandez poured a flammable substance, likely gasoline, on the floor of the truck to loosen the grease.  As Molina began washing the dishes and trays for the day, she heard an explosion and was suddenly in flames.   A pilot light from the stove had ignited the substances that Fernandez poured on the floor.

Both commercial general liability and commercial auto policies were available.  The district court found no coverage and an appeal was taken to the Fifth Circuit Court of Appeals based solely on the Commercial Auto policy.

Applying Texas law the Court of Appeals reversed applying a three part test for determining liability for the “use” of an auto.  First, the action must have arisen out of the inherent use of the automobile.  Second,   the accident must have arisen within the natural territorial limits of an automobile, and the actual use must not have terminated.  Third, the automobile must not merely contribute to cause the condition which produces the injury, but must itself produce the injury.

As to the first factor the court concluded that there is nothing in the case law to suggest that Texas would interpret “use” under a business auto policy, in which the stated purpose of the vehicles being insured was for mobile catering, in a way that did not include the hazards that arise from maintaining the mobile catering equipment.  Cleaning a mobile kitchen was not simply a speculative event that might conceivably occur, nor was the cleaning foreign to the vehicle’s inherent purpose.

As to the second factor – whether the accident occurred within the natural territorial limits of the automobile - the court found that factor was satisfied because the truck was parked on the Jolly Chef lot at the time of the accident.

Whether the vehicle caused the injury, the third factor, the court found was satisfied because the policy provided coverage for the uses of this mobile catering truck as just such truck.  The known and expected uses of this vehicle included activities relating to cooking.  The cleaning and pouring of the substance on the floor and the resulting fire from the stove’s pilot light produced the injury.

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

7/20/20                Matter of Country-Wide Ins. Co. v. Nelson
Supreme Court, New York County
Application to Stay Arbitration Not Untimely
This case arises out of a demand for uninsured motorist benefits.  Respondent, a pedestrian, was struck by a vehicle owned by Saleen Motors, Inc. and operated by Siaka Amara. 

Petitioner moved to stay arbitration on the grounds that the vehicle was not uninsured.  In its papers, the petitioner also requested that, in the alternative, if a stay was not granted, the court join the owner, operator and the vehicle’s alleged insurer as respondents.   In addition, it requested a framed issue hearing on the matter of insurance coverage for the adverse vehicle. 

In opposition, respondent asserted that the vehicle’s policy had been cancelled and that petitioner failed to prove that any other coverage existed.  The vehicle’s alleged insurer also opposed the motion on the ground that it cancelled the policy due to nonpayment.  Moreover, the alleged insurer asserted that the petition to stay arbitration was untimely. 

The court rejected the insurer’s assertion that the petition to stay arbitration was untimely.  It reasoned that a party must apply to stay arbitration within twenty days after such service.  This time period begins to run upon receipt of the demand.  Herein, as the demand to arbitrate was mailed, the insurer was responsible to submit some documentation as to date of receipt of the demand or the date of mailing.  The court then ordered a framed hearing on the question of insurance coverage for the adverse vehicle. 

7/15/10                Skanska USA Bldg Inc. v. Burlington Ins. Co.
Supreme Court, New York County
Court Requires Party to Be a Signatory to the Contract in Order to Qualify for Coverage as an Additional Insured
In this case, the owner, New York City Economic Development Corp. (the EDC), hired plaintiff to act as a consultant and project manager on a construction project pursuant to a contract (EDC/plaintiff contract).  The EDC also hired Transcontinental Steel Corp. to perform certain steel work on the project (EDC/Transcontinental contract).  Shortly thereafter, it was discovered that some of the steel was coated with lead paint.  Accordingly, Transcontinental hired Safeway Environmental Corp. to abate the hazard (Transcontinental/Safeway contract). 

The EDC/Transcontinental contract required Transcontinental to obtain a commercial general liability insurance policy naming plaintiff.  Transcontinental complied with the provision by obtaining a policy from defendant and naming plaintiff as an additional insured. 

On May 11, 2004, an employee of Safeway sustained personal injury when she fell from a defective scaffold at the construction project.  After suit was filed, plaintiff’s insurer tendered its defense to defendant.  Eventually, the defendant disclaimed coverage on the grounds that plaintiff did not meet the threshold requirements to be an additional insured, as set forth in defendant’s policy.   Specifically, the defendant’s policy contained the following blanket additional insured provision, which stated:

Additional Insured – Owners, Lessees or Contractors – Automatic Status When Required in Construction Agreement with You
Commercial General Liability Coverage Part

***

A. Section II – Who Is An Insured is amended to include as an insured any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy.  Such person or organization is an additional insured only with respect to liability arising out of your ongoing operations performed for that insured

The court agreed with defendant and held that the unambiguous and unequivocal terms of the additional insured endorsement required that, in order for plaintiff to qualify as an additional insured under the Burlington policy, Transcontinental, the named insured must have agreed in writing with plaintiff to add plaintiff as an additional insured on the policy.  Thus, as plaintiff was not a signatory to the EDC/Transcontinental contract it was not an additional insured under the Burlington policy.
Editor’s Note:  Watch this one on appeal. 

7/9/10                  Agrawal V. Metropolitan Life Ins. Co.
Supreme Court, New York County
Court Renders Life Insurance Policies Void Ab Initio Based on Misrepresentations Regarding the Insured’s Health and Other Policies Previously Issued on Her Life
Defendant declined coverage under two life insurance polices issued to plaintiffs’ relative.  In the initial denial letter, defendant asserted that the policies were void ab initio based on the insured’s failure to disclose the true and complete facts concerning her financial income.  Notably, the denial letter made no reference to two other grounds for denial:  one, the insured’s failure to disclose her long history of diabetes; and, two, the other life insurance policies that had previously been taken out on her life.  

In opposing defendant’s motion for summary judgment, plaintiffs argued that the insured had not misrepresented her finances as her asserts were held in the Hindi Undivided Family (“HUF”) and she was the owner/karta of the HUF.  This meant that she had the power to among other things borrow and spend from the HUF.  They also argued that as the denial letter only alleged material misrepresentation with respect to her finances, any other alleged material misrepresentation was waived. 

Initially, the court held that the general rule that “an insurer which denies liability on a specified ground may not thereafter shift the basis for its disclaimer to another ground known to it at the time of its original repudiation” did not apply.  The court reasoned that the general rule was limited to those instances in which the insured had been prejudiced by the insurer’s conduct.  Here, plaintiffs failed to show such prejudice. 

The court then addressed the three material misrepresentations alleged by defendant.  While the court disagreed with defendant that the insured had misrepresented her finances, it agreed that the insured did in fact misrepresent her health and the other policies that had already been issued on her life.  Accordingly, the court voided the policy ab initio.

7/3/10                  Atlantic Mut. Ins. Co. v. 650 Park Ave. Corp.
Supreme Court, New York County
Release Not Effective to Bar Claims for New Property Damage that Arose Out of the Same Act of Negligence
650 Park Avenue Corp. hired DNA Contracting to perform exterior restoration and waterproofing work on a building it owned.  DNA subcontracted the work to Metras Construction Company.  The work was performed sometime after May 26, 2000. 

On January 22, 2001, residents of the building reported extensive water damage in their apartment.  The damage resulted in:  (1) a lawsuit brought by 650 Park Ave. Corp. against DNA; and (2) an insurance claim filed by plaintiff, Atlantic Mutual as subrogee of the residents, against DNA.  Eventually, the matter was resolved and a release was signed in favor of DNA and Metras.  The release discharged DNA and Metras from all causes of actions “arising out of property damage and/or lost on January 19, 2001.”  

Approximately two years later, the residents noticed that a portion of the repaired floor had risen.  This was reported to plaintiff who paid the cost of repair and then filed this lawsuit against the 650 Park Avenue Corp. and DNA. 

In response, DNA moved for summary judgment and argued that it had a Stipulation of Discontinuance and a release.  DNA reasoned that as the later damages were “one in the same” the release precluded the current action.  The court disagreed and held that while the initial lawsuit had been discontinued the release did not protect DNA from the new claim.  It held that where the language of the release was limited to only particular claims, demands or obligations, the instrument will be operative to those matters alone, and will not release other claims, demands or obligations.  Accordingly, the settlement did not release DNA from any property damage that could have been caused by Metras’ negligence in its work preformed in 2000; instead, the settlement only released DNA from liability for any property that was damaged or lost on January 19, 2001.  Thus, if more damage arose on a day subsequent to January 19, 2001, DNA could still be on the hook even if the damage stemmed from the same allegedly negligent work. 

EARL’S PEARLS
Earl K. Cantwell

[email protected]

ADDITIONAL INSURED STATUS  - RECENT NEW YORK DECISION


In the 2008 Worth decision by the New York State Court of Appeals, insurance secured by a subcontractor was held NOT to cover an injury sustained by a worker after the subcontractor had performed its work and departed the scene.  In Worth, the subcontractor agreed to and did secure liability insurance covering the owner and the general contractor as additional insureds, but only for liability arising out of the subcontractor’s own operations.  It was held that the worker’s injury did not arise out of those operations, and therefore the subcontractor’s insurance company had no obligation to defend the personal injury action. 

In a recent case, the Court of Appeals distinguishes Worth and held an insurer bound to provide a defense under additional insured status.  Regal Construction Corp. v. National Union Fire Ins. Co., 15  N.Y.3d 34 (June 3, 2010).  Regal was hired by the construction manager, URS Corporation, on a renovation project.  The contract required Regal to secure liability insurance and cover the construction manager as an “additional insured”.  One of Regal’s employees was injured when he slipped on a painted floor joist.  He could not sue Regal due to Workers’ Compensation, and in any event he claimed that the accident was caused by recent painting by an employee of the construction manager URS.  The issue was whether the insurance that Regal secured covered URS and required defense of the claim by Regal’s insurer.

The Court of Appeals held that the additional insured insurance did require the defense.  Worth was not on point because the subcontractor in Worth was gone and off the scene, whereas Regal was still very much part of the ongoing construction operations, whatever may have been the precise cause of the injury.  Regal’s obligation was to secure coverage for liability “arising out of Regal’s ongoing operations”, and those operations were very much ongoing at the time of the accident and, in fact, the injury was to one of Regal’s employees at the scene.  Given the additional insured language, the Court of Appeals stressed that it is not the precise cause of the accident which may be determinative, but the general nature and entities involved in the ongoing construction operations at the time the injury was sustained.

Here, the injury “arose” out of Regal’s operations notwithstanding the alleged negligence of URS, and therefore fell within the scope of the additional insured clause of the insurance policy.  Parenthetically, the Court of Appeals also supported its decision with the axiomatic notion that the obligation of the liability insurer to defend the insured is “exceedingly broad”, and if the complaint in the underlying tort action shows any possibility that the claim may fall within the coverage, as this one did, it will give rise to the obligation to defend an additional insured as well as the primary insured.

The lesson of Regal Construction Corp. is to carefully monitor and detail additional insured requirements in the contract, and then make sure that the actual endorsements match the contractual requirements.  It is also important to make sure that the party obtaining the insurance in fact obtains the requisite coverage, procures the required additional insured endorsement, and is able to provide proof and documents of insurance via actual policy, endorsements, and Certificates of Insurance. 

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

7/27/10                Myron Corp. v. Atlantic Mutual Insurance Corp.
New Jersey Supreme Court
Prevailing Policyholder in Coverage Dispute Entitled To Counsel Fees Pursuant to New Jersey Fee-Shifting Provision For Litigation That Occurred in Illinois

Plaintiff Myron Corporation and defendant Atlantic Mutual engaged in a coverage dispute regarding underlying lawsuits involving sending “junk faxes” in violation of the Telephone Consumer Protection Act (TCPA), 47 U.S.C.A. § 227, and various state laws. Atlantic filed a complaint against Myron in the United States District Court for the Northern District of Illinois seeking a declaration that the Atlantic policy did not cover the underlying claims. The Illinois federal court dismissed Atlantic’s action for lack of diversity jurisdiction. Atlantic re-filed the federal court complaint after finding additional defense invoices to meet the $75,000 threshold. On August 29, 2005, Myron filed its own declaratory judgment complaint in New Jersey state court. The New Jersey court dismissed Myron’s action without prejudice pending the resolution of the earlier-filed Illinois federal court action. Subsequently, the Illinois federal district court abstained from the litigation. Myron re-filed its declaratory judgment action in New Jersey and obtained a favorable decision on the coverage issues. The parties settled all of Myron’s counsel fee claims in connection with an underlying case and the New Jersey declaratory judgment action. They did not settle Myron’s claim for counsel fees for the Illinois federal declaratory judgment litigation. The New Jersey state court denied Myron’s application, under Rule 4:42-9(a)(6), for approximately $160,000 in legal fees and costs it claimed to have incurred in defending against Atlantic’s two Illinois federal court actions.

The decision was based, in part, that the New Jersey Supreme Court would not have intended to apply Rule 4:42-9 “extraterritorially.” Myron appealed to the Appellate Division, which reversed and remanded for further proceedings, finding that Myron was entitled to counsel fees for the Illinois litigation, which was part of the same controversy over the coverage issue. Reviewing the matter de novo, and acknowledging the novelty of the issue, the Appellate Division disagreed with the trial court’s conclusion that applying Rule 4:42-9(a)(6) under the circumstances was “extra-territorial” and concluded that Myron’s right to counsel fees stemmed from its success in the New Jersey litigation. The Appellate Division further concluded that allowing Myron to recover ensured the bargained for coverage. The New Jersey Supreme Court affirmed the Appellate Division without opinion. One Justice dissented, stating that the Court’s award of counsel fees incurred entirely in actions litigated outside of New Jersey represents an unwarranted and unwise extension of the fee-shifting Rule.
Submitted by: Anthony J. Zarillo, Jr. [Bevan, Mosca, Giuditta & Zarillo, P.C.

REPORTED DECISIONS

Perez v. Giouroukos


Cohen Kuhn & Associates, New York (Steven Balson-Cohen
of counsel), for George Giouroukos and Stark Aquarium,
appellants.
Thomas Torto, New York (Jason Levine of counsel), for
Augustin Puntiel, appellant.
O'Connor, Redd, LLP, White Plains (John P. Grill of counsel),
for respondent.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered September 11, 2009, which denied defendants' motions for summary judgment, unanimously reversed, on the law, without costs, the motions granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Defendants' medical evidence established that plaintiff did not suffer a serious injury causally related to the accident. Their radiologist opined that the herniated discs in plaintiff's lumbar and cervical spine were degenerative and preexisting, and thus not caused by the June 2006 automobile accident. In response, plaintiff's medical expert, while noting that the herniated discs shown on the MRI correlated to his range-of-motion and other studies, failed to address or rule out injury from a preexisting degenerative condition, or to offer competent medical proof that plaintiff could not perform substantially all of her normal activities for 90 of the first 180 days following the accident (see Valentin v Pomilla, 59 AD3d 184 [2009]).


Srebnick v. Quinn

Joseph L. Grosso, P.C., Farmingdale, N.Y., for appellant.
Richard T. Lau, Jericho, N.Y. (Joseph G. Gallo of counsel), for
respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Jones, Jr., J.), dated July 27, 2009, which, upon an order of the same court dated April 22, 2009, granting the defendant's motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and denying, as academic, his cross motion for summary judgment on the issue of liability, is in favor of the defendant and against him dismissing the complaint.
ORDERED that the judgment is affirmed, with costs.
The defendant met her 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 as to whether he sustained a serious injury within the meaning of Insurance Law § 5102(d) under the permanent consequential limitation of use and/or the significant limitation of use categories. The plaintiff failed to proffer any competent medical evidence that revealed the existence of any significant limitations in his spine or knees that were contemporaneous with the subject accident (see Catalano v Kopmann, 73 AD3d 963; 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).
Since the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint, it properly denied, as academic, the plaintiff's cross motion for summary judgment on the issue of liability.
In the Matter of Eveready Insurance Co. v. Vilmond


Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of
counsel), for appellant.
Sweetbaum & Sweetbaum, Lake Success, N.Y. (Marshall D.
Sweetbaum of counsel), for
respondent.

DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for underinsured motorist benefits, Monise Vilmond appeals from an order of the Supreme Court, Queens County (Rios, J.), dated August 10, 2009, which granted that branch of the petition which was to permanently stay arbitration.
ORDERED that the order is reversed, on the law, with costs, and that branch of the petition which was to permanently stay arbitration is denied.
On June 28, 2006, the appellant, Monise Vilmond, was injured in a motor vehicle accident with a third party's vehicle which was insured under a policy of insurance issued by American Vehicle Insurance (AVI). Vilmond reached an agreement with AVI for its policy limit of $10,000, and then sought approval from her insurer, Eveready Insurance Company (hereinafter Eveready), to settle the case with AVI. Prior to receiving such approval, Vilmond's attorneys accepted and negotiated a settlement check in the sum of $10,000 from AVI. However, Vilmond never executed a release regarding her lawsuit against the third party. Vilmond thereafter sought arbitration of her claim for underinsurance motorist benefits pursuant to her Eveready policy, and Eveready brought this petition, inter alia, to permanently stay the arbitration. The Supreme Court granted that branch of the petition which was to permanently stay arbitration, concluding, among other things, that the negotiation of the settlement check "constituted an accord and satisfaction of [Vilmond's] claim in violation of the policy." We disagree.
Since there is no proof that Vilmond ever executed a release regarding her lawsuit against the third party, she did not violate the terms of her policy or prejudice Eveready's subrogation rights (see Weinberg v Transamerica Ins. Co., 62 NY2d 379, 382-383; see also, 11 NYCRR 60-2.3[f]; Matter of Central Mut. Ins. Co. [Bemiss], 12 NY3d 648; Matter of American Home Assur. Co. v Williams, 282 AD2d 674; Leeds Peninsula Pharm. Inc. v American Natl. Fire Ins. Co., 125 AD2d 551). Nor did Eveready, as the party seeking a stay of arbitration, otherwise meet its burden "of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay" (Matter of Liberty Mut. Ins. Co. v Morgan, 11 AD3d 615, 616; see also Matter of American Protection Ins. Co. v DeFalco, 61 AD3d 970; Matter of Eagle Ins. Co. v Viera, 236 AD2d 612).
Accordingly, the Supreme Court erred in granting that branch of the petition which was to permanently stay arbitration.
Matter of State Farm Mutual Auto. Ins. Co. v. Thomas


Richard T. Lau, Jericho, N.Y. (Joseph G. Gallo of counsel), for
appellant.
Campolo, Middleton & Associates, LLP, Bohemia, N.Y. (Scott
D. Middleton of counsel), for
respondents-respondents Schoolman
Transport System, Inc., and National
Interstate Insurance Company.
Morgan Melhuish Abrutyn, New York, N.Y. (Joseph DeDonato
and Andrea E. Waisman of counsel),
for respondent-respondent Mercury
Indemnity Company of America.

DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated June 10, 2009, which, after a framed-issue hearing, denied the petition and dismissed the proceeding.
ORDERED that the order is affirmed, with one bill of costs to the respondents-respondents appearing separately and filing separate briefs.
On August 27, 2005, Gracy N. Thomas was a passenger in a bus operated by Schoolman Transport System, Inc. (hereinafter Schoolman), which was insured by National Interstate Insurance Company (hereinafter National Interstate). The bus was traveling on the Garden State Parkway in New Jersey when it was struck by a vehicle, alleged to be uninsured, driven by Lawrence Dock.
Thomas had a policy of insurance with the petitioner, and served a demand for arbitration based on the occurrence of this accident. The petitioner commenced this proceeding to permanently stay arbitration. The petitioner claimed that the respondents failed to establish that Dock's vehicle was uninsured. In this regard, it is undisputed that, at one point, Mercury Indemnity Company of America (hereinafter Mercury) issued a policy of insurance to Dock. However, by notice of cancellation dated August 8, 2005, Mercury provided notice to Dock that it was canceling the policy for nonpayment of premiums, purportedly effective August 23, 2005. The petitioner also claimed that, because Thomas was a passenger on the bus insured by National Interstate, National Interstate had primary uninsured motorist coverage, and the petitioner was not liable for such coverage until National Interstate had exhausted its policy limits, and then "only to the extent that it exceeds the coverage of a higher priority policy."
The Supreme Court denied the petition, finding that the evidence established that Dock's vehicle was uninsured at the time of the accident. The Supreme Court did not determine the merits of the petitioner's argument concerning the priority of the policies.
Contrary to the petitioner's contention, the evidence established that Dock's vehicle was uninsured at the time of the accident. The relevant New Jersey statute, applicable to the issue of cancellation of Dock's policy because this case involves an automobile insurance policy issued to a New Jersey resident pursuant to a New Jersey statute to cover a vehicle registered and insured in New Jersey (see Matter of Allstate Ins. Co. [Stolarz - New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 227; Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56), provides, in part:
"No notice of cancellation of a policy to which section 2 applies shall be effective unless mailed or delivered by the insurer to the named insured at least 20 days prior to the effective date of cancellation; provided, however, that where cancellation is for nonpayment of premium at least 15 days' notice of cancellation accompanied by the reason therefor shall be given."

(NJ Stat Ann § 17:29C-8). It is undisputed that Mercury mailed a notice of cancellation to Dock based on nonpayment of premiums on August 8, 2005. The petitioner is correct in stating that, in computing the 15-day notice period, the first day to be counted was the day after Mercury mailed the notice (see Rules Governing the Courts of the State of New Jersey Rule 1:3-1; see also Fiduccia v Intercontinental Restaurateurs, Inc., 310 NJ Super 52, 55). The petitioner is also correct in stating that, while the notice of cancellation indicates that cancellation would be effective as of 12:01 A.M. on August 23, 2005, this would only constitute a portion of the 15th day, and the New Jersey courts have determined that, with regard to computation of time, where computation of a specified number of days is involved, the term "day" refers to a full 24-hour day, and not a portion thereof (see Fiduccia v Intercontinental Restaurateurs, Inc., 310 NJ Super 52, 707 A2d 1367). Thus, as the petitioner argues, Mercury's notice of cancellation with a purported effective date of cancellation of less than 15 full days from the date of mailing failed to comply with the statutorily mandated 15-day notice period (see NJ Stat Ann § 17:29C-8). However, the petitioner is incorrect as to the consequences of this error. The effect was not to render the cancellation a nullity, in effect continuing the policy in perpetuity regardless of the insured's nonpayment of premiums or lack of communication between insurer and insured. Rather, the effect was simply that the cancellation was effective the following day, August 24, 2005, by which time the full 15-day period had elapsed and Dock had not paid the premium (see Fiduccia v Intercontinental Restaurateurs, Inc., 310 NJ Super 52, 707 A2d 1367; see also Kovacs v Kunick, 2005 WL 4655384, *8, 2005 US Dist LEXIS 43225, *26 [ED NY 2005]). Thus, the policy was effectively cancelled three, rather than four, days prior to the accident, and, as the Supreme Court properly found, Dock's vehicle was, indeed, uninsured at the time thereof.
The Supreme Court incorrectly concluded that the petitioner's contention that National Interstate's policy was higher in priority than the petitioner's policy was, inter alia, "not applicable." In light of the Supreme Court's conclusion that the Dock vehicle was uninsured, a determination as to the priority of the insurance policies at issue was required. Because both New Jersey and New York law would resolve this issue on the basis of the language in the applicable policies (see BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d 708, 716; Magnifico v Rutgers Cas. Ins. Co., 153 NJ 406, 710 A2d 412), there is no conflict of laws on this issue.
A provision of the petitioner's SUM endorsement in its policy with Thomas pertaining to priority of coverage indicated that, where an insured was entitled to SUM coverage under more than one policy, the order of priority was to be: 
"(a) A policy covering a motor vehicle occupied by the injured person at the time of the accident;
(b) A policy covering a motor vehicle not involved in the accident under which the injured person is a named insured; and
(c) A policy covering a motor vehicle not involved in the accident under which the injured person is an insured other than a named insured [emphasis supplied]."
Coverage under a lower priority policy was to apply "only to the extent that it exceeds the coverage of a higher priority policy." Here, Schoolman's policy with National Interstate covered the vehicle occupied by Thomas at the time of the accident. The petitioner's policy with Thomas covered a motor vehicle not involved in the accident under which Thomas was a named insured. Thus, under the terms of the petitioner's policy, National Interstate's policy was higher in priority than the petitioner's.
Meanwhile, Schoolman's policy with National Interstate contained a provision which stated, in part,
"Other Insurance. With respect to bodily injury to an insured while occupying a motor vehicle not owned by the named insured, the coverage under this UM endorsement shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such motor vehicle as primary insurance, and this UM endorsement shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance. [emphasis supplied]"

Here, Schoolman, National Interstate's insured, owned the bus in which Thomas was a passenger when it collided with the Dock vehicle. Thus, this "Other Insurance" policy provision, on which National Interstate relies in support of its contention that the petitioner's policy is higher in priority, was, by its terms, inapplicable to the circumstances presented here (see Matter of Lancer Ins. Co. v Robayo, 28 AD3d 664, 665).
Accordingly, National Interstate's policy constituted the primary insurance policy for all coverage, and Thomas may resort to the petitioner's policy only in the event that National Interstate's policy is insufficient to fully compensate her, and then "only to the extent that it exceeds the coverage of a higher priority policy."
The remaining contention of Mercury, Schoolman, and National Interstate is without merit.
Houston v. Hofmann


Calendar Date: June 2, 2010
Before: Rose, J.P., Lahtinen, Stein, Garry and Egan Jr., JJ.

The DeLorenzo Law Firm, L.L.P., Schenectady
(Thomas E. DeLorenzo of counsel), for appellant.
Murphy & Lambiase, P.C., Goshen (George A. Smith
of counsel), for respondent.
MEMORANDUM AND ORDER

Stein, J.
Appeal from an order of the Supreme Court (Kramer, J.), entered October 9, 2009 in Schenectady County, which granted defendant's motion for summary judgment dismissing the complaint.
Following a motor vehicle accident on January 12, 2007, plaintiff commenced this personal injury action alleging that she suffered a serious injury to her cervical and thoracic spine within the meaning of Insurance Law § 5102 (d), relying on the statutory categories of permanent loss of use, permanent consequential limitation, significant limitation, and inability to perform substantially all of her customary activities for at least 90 out of the 180 days immediately following the accident. Defendant moved for summary judgment dismissing the complaint. Supreme Court granted the motion, finding that plaintiff had failed to demonstrate a triable issue of fact regarding whether she had suffered a statutory serious injury. This appeal by plaintiff ensued.
We affirm. "It is well established that to satisfy the statutory serious injury threshold, plaintiff must have sustained an injury that is identifiable by objective proof; plaintiff's subjective complaints of pain do not qualify as a serious injury within the meaning of Insurance Law § 5102 (d)" (Tuna v Babendererde, 32 AD3d 574, 575 [2006] [citation omitted]; see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). As the party moving for summary judgment, defendant had the initial burden of establishing that plaintiff did not suffer a serious injury in order to demonstrate her prima facie entitlement to judgment as a matter of law (see Insurance Law §§ 5102, 5104; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Here, defendant's motion was supported by a copy of plaintiff's verified bill of particulars, plaintiff's deposition testimony and two independent medical exam reports, which specifically referenced plaintiff's various medical treatment reports. This evidence established that, on the day of the accident, plaintiff went to a hospital emergency room, where she was diagnosed with neck strain and a left knee contusion, was prescribed ibuprofen and was instructed to limit her activities for three days and to follow up with a physician in four to five days. Plaintiff did not seek further medical treatment until January 30, 2007. She was again diagnosed with neck strain, was prescribed pain medication, heat and massage, and was referred to physical therapy. Plaintiff obtained physical therapy a total of eight times between February 1, 2007 and March 16, 2007. The discharge summary from such treatment indicates that she had full range of motion in all relevant areas. Plaintiff was also treated by David Cerniglia, a chiropractor, from March 12, 2007 until August 22, 2007.
Based upon their examinations of plaintiff on March 3, 2009 and their review of her medical records, defendants' two medical experts opined that plaintiff had a normal range of motion at the time their respective examinations took place, and that she had nonpermanent causally related resolved strains of the cervical and thoracic spine. There was also no indication in the records submitted that plaintiff suffered a serious injury in the significant limitation or 90/180-day categories. Further, nothing in plaintiff's bill of particulars or deposition testimony establishes that she was prevented from performing substantially all of the material acts which constitute her usual and customary daily activities. Although the bill of particulars alleges in extremely general terms that she was prevented from performing her daily activities such as sleeping, working and attending social activities, this was contradicted by evidence that plaintiff was not employed at the time of the accident, and no significant restrictions were placed on her activities, except for the three days immediately following the accident. In addition, plaintiff denied that she was confined to bed or home at any time following the accident, and her deposition testimony indicates only that she was unable to garden or lift her grandchildren.
Based upon the foregoing, we agree with Supreme Court's determination that defendant presented sufficient evidence to shift the burden to plaintiff to raise a question of fact requiring a trial (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324, 326 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Tuna v Babendererde, 32 AD3d at 575). In order to meet this burden, it was incumbent upon plaintiff to submit "competent medical evidence based upon objective medical findings and diagnostic tests to support [her] claim of a serious injury" (Trotter v Hart, 285 AD2d 772, 773 [2001] [internal quotation marks and citations omitted]; see Howard v Espinosa, 70 AD3d 1091, 1092 [2010]; Drexler v Melanson, 301 AD2d 916, 917-918 [2003]).
Here, in opposition to defendant's motion, plaintiff submitted the affidavit of Cerniglia, who alleged that, during his examination of plaintiff, he observed objective signs of injury in that she suffered from spasms and from a limited range of motion compared to the normal range in a variety of contexts. However, inasmuch as Cerniglia did not identify what diagnostic tests he used to determine plaintiff's limitations, we are unable to ascertain whether such tests were objectively based or whether they were based entirely on subjective input [FN1] . Thus, his affidavit is insufficient to raise a triable question of fact with regard to the category of significant limitation of use (see Tuna v Babendererde, 32 AD3d at 577; John v Engel, 2 AD3d 1027, 1029-1030 [2003]; Pinkowski v All-States Sawing & Trenching, 1 AD3d 874, 875 [2003]; Trotter v Hart, 285 AD2d at 773; see also Dugan v Sprung, 280 AD2d 736, 737-738 [2001]).
In addition, Cerniglia's conclusory opinion, set forth in an affidavit more than 2½ years after plaintiff's accident, that plaintiff's injuries "were of a type which would have prevented her from, and did prevent her from, performing her usual, customary and daily activities . . . for the period of time from the date of the collision until at least August of 2007" was insufficient to establish a serious injury under the 90/180-day category, particularly in view of the absence of any medical restrictions placed on her activities (see Tuna v Babendererde, 32 AD3d at 576, 577; Drexler Melanson, 301 AD2d at 918-919; Trotter v Hart, 285 AD2d at 773). Nor has plaintiff proffered her own sworn affidavit specifying the manner in which she was prevented from performing substantially all of her usual and customary daily activities for the requisite time period (see Saleh v Bryant, 49 AD3d 991, 993 [2008]; Clements v Lasher, 15 AD3d 712, 713-714 [2005]; Davis v Evan, 304 AD2d 1023, 1025-1026 [2003]). Furthermore, Cerniglia's affidavit provides no opinion as to the permanency of plaintiff's injuries. In any event, inasmuch as his affidavit was based upon his examinations conducted at least 18 months earlier,[FN2] not on any recent medical examination, and fails to explain the cessation of plaintiff's treatment, it would be deficient as a matter of law to establish permanency (see Trotter v Hart, 285 AD2d at 773; see also Tuna v Babendererde, 32 AD3d at 577; John v Engel, 2 AD3d at 1028-1029). Thus, Supreme Court properly found that plaintiff failed to demonstrate a triable issue of fact with regard to the existence of a serious injury pursuant to any of the statutory categories alleged.
ORDERED that the order is affirmed, with costs.
Footnotes

Footnote 1: While Cerniglia does allege that he noted a "positive O'Donohue's test," and that plaintiff was "positive with regard to cervical compression," he fails to describe these tests, explain their significance or relate them in any way to a limitation of use. Nor do his office notes provide any clarity, as they are indecipherable.

Footnote 2: Cerniglia alleges that he saw plaintiff in January 2008, although there is no evidence that he treated her or performed any tests on that date.
Shaw v RPA Associates, LLC


Zeccola & Selinger, LLC, Goshen, N.Y. (Mark A. Schwab of
counsel), for appellants-respondents.
Havkins Rosenfeld Ritzert & Varriale, LLP, White Plains,
N.Y. (Carmen A. Nicolaou and
Stephen H. Rosenfeld of counsel), for
respondents-appellants and defendant third-
party plaintiff-respondent.
Goldberg Segalla, LLP, White Plains, N.Y. (William T.
O'Connell of counsel), for third-party
defendant-respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Westchester County (Lefkowitz, J.), dated April 22, 2009, which, upon an order of the same court entered August 12, 2008, as amended November 18, 2008, inter alia, granting the motion of the defendants RPA Associates, LLC, and AVR Realty, and the defendant third-party plaintiff, Patriot Ridge Development, LLC, for summary judgment dismissing the amended complaint and granting the third-party defendant's cross motion for summary judgment dismissing the third-party complaint, dismissed the complaint and, in effect, dismissed the third-party complaint; and the defendants RPA Associates, LLC, and AVR Realty cross-appeal from so much of the same judgment as, in effect, dismissed the third-party complaint.
ORDERED that the appeal and cross-appeal from so much of the judgment as, in effect, dismissed the third-party complaint are dismissed, as the plaintiffs and the defendants RPA Associates, LLC, and AVR Realty are not aggrieved by that portion of the judgment (see CPLR 5511); and it is further,
ORDERED that the judgment is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the defendants and third-party defendant, payable by the plaintiffs.
The plaintiff Frederic P. Shaw (hereinafter Shaw), allegedly sustained injuries at a construction site when the dump truck that he was operating capsized and loose items in the cab of the truck pinned him down. Shaw, an employee of the third-party defendant, Rockbusters, doing business as Brad Holland, Inc. (hereinafter Rockbusters), claims to have been directed at the time of the accident by a fellow Rockbusters employee. Shaw commenced the instant action alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). His wife asserted a derivative claim for loss of services. Patriot Ridge Development, LLC (hereinafter Patriot Ridge), AVR Realty (hereinafter AVR), and RPA Associates, LLC (hereinafter RPA), are affiliate companies. However, Patriot Ridge was the exclusive owner and developer of the land in connection with the construction project, which entered into a subcontractor agreement with Rockbusters. As such, Patriot Ridge brought a third-party action against Rockbusters seeking, inter alia, indemnification. The plaintiffs challenge the Supreme Court's grant of the motion of RPA, AVR, and Patriot Ridge (hereinafter collectively the defendants) for summary judgment dismissing the complaint, as well as the grant of Rockbusters' cross motion for summary judgment dismissing the third-party complaint, and RPA and AVR challenge the grant of Rockbusters' cross motion for summary judgment dismissing the third-party complaint.
The plaintiffs' contention that the Supreme Court erred in granting relief which the defendants did not request in their notice of motion is unavailing. Contrary to the plaintiff's contention, the "wherefore" clause of the attorney's affirmation contains a request that the entire complaint be dismissed. The court may grant relief that is warranted pursuant to a general prayer contained in the notice of motion, "if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party" (Frankel v Stavsky, 40 AD3d 918, 918-919; see also Matter of Blauman-Spindler v Blauman, 68 AD3d 1105, 1106; HCE Assoc. v 3000 Watermill Lane Realty Corp., 173 AD2d 774, 774-775). The cause of action seeking damages for common-law negligence implicates the same issues as the cause of action seeking damages for violation of Labor Law § 200, which is but a codification of the common-law duty of a landowner to provide workers with a reasonably safe place to work (see Ashjian v Orion Power Holdings, Inc., 70 AD3d 738, 740; Piedra v Matos, 40 AD3d 610, 611; Hunter v R.J.L Dev., LLC, 44 AD3d 822, 825).
Where an alleged defect or dangerous condition arises from the methods or means of the work and the owner exercised no supervisory control over the operation, no liability for negligence attaches to the owner under the common law or under Labor Law § 200 (see Lombardi v Stout, 80 NY2d 290). Here, the defendants established, prima facie, that neither RPA nor AVR owned the property or directed, supervised, or controlled the work performed by Shaw. In addition, they established, prima facie, that Patriot Ridge did not direct, control, or supervise Shaw's work at the site.
The defendants further established, prima facie, that no liability attaches pursuant to Labor Law § 240(1) because Shaw's accident did not result from the type of accident "in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 604, quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501; see also Williamson v 16 W. 57th St. Co., 256 AD2d 507, 510). In driving the truck, the defendant was not subject to the "pronounced risks arising from construction work site elevation differentials" (Runner v New York Stock Exch., Inc., 13 NY3d at 603). In addition, the plaintiff was not exposed to any risk that the safety devices referenced in Labor Law § 240(1) would have protected against (see Barillaro v Beechwood RB Shorehaven, LLC, 69 AD3d 543; Wynne v B. Anthony Constr. Corp., 53 AD3d 654, 655).
The defendants further established, prima facie, that no liability attaches pursuant to Labor Law § 241(6) because the plaintiffs failed to allege a breach of a specific regulation of the Industrial Code (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343). Although the plaintiffs allege violations of regulations promulgated by the Occupational Safety and Health Administration, such alleged violations do not provide a basis for liability under Labor Law § 241(6) (see Cun-En Lin v Holy Family Monuments, 18 AD3d 800, 802; Ferreira v Unico Serv. Corp., 262 AD2d 524, 525; Vernieri v Empire Realty Co., 219 AD2d 593, 598).
In opposition, the plaintiffs failed to raise a triable issue of fact to defeat the grant of summary judgment on the above claims (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343; Comes v New York State Elec. & Gas Corp., 82 NY2d 876; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494).
Since the derivative cause of action is dependent upon Shaw's claims, this cause of action was also properly dismissed (see Baumblatt v Battalia, 134 AD2d 226, 229).
MASTRO, J.P., SANTUCCI, CHAMBERS and ROMAN, JJ., concur.
Valentin v  Mann & Just, LLP


Michael Quintana (Berson & Budashewitz, LLP, New York,
N.Y. [Jeffrey A. Berson] of counsel), for defendants third-party
plaintiffs-appellants.
Callan, Koster, Brady & Bernnan, LLP, New York, N.Y.
(Michael P. Kandler of counsel), for
third-party defendant-respondent.

DECISION & ORDER
In an action to recover damages for legal malpractice, the defendants third-party plaintiffs appeal, as limited by their brief, from so much an order of the Supreme Court, Kings County (Partnow, J.), dated April 13, 2009, as, in effect, denied their motion for summary judgment declaring that the third-party defendant has a duty to defend and indemnify them in the main action, and granted that branch of the third-party defendant's cross motion which was for summary judgment declaring that it has no duty to defend and indemnify the defendants third-party plaintiffs in the main action.
ORDERED that the order is affirmed insofar as appealed from, with costs, the third-party action is severed, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the third-party defendant Philadelphia Insurance Companies is not obligated to defend and indemnify the defendants third-party plaintiffs in the main action.
The defendants third-party plaintiffs (hereinafter the appellants), the insureds under a claims-made professional liability insurance policy issued by the third-party defendant Philadelphia Insurance Companies (hereinafter PIC), failed to make a prima facie showing that PIC is obligated to defend and indemnify them in the main action (see generally Alvarez v Prospect Hosp., 68 NY2d 320). On the other hand, in support of its cross motion, inter alia, for summary judgment declaring that it has no such duty, PIC made a prima facie showing that no "claim," as that term is defined in the subject policy, was made against the appellants within the policy period, or the extended reporting period (see Evanston Ins. Co. v GAB Bus. Servs., 132 AD2d 180, 185; see also Purcigliotti v Risk Enter. Mgt. Ltd., 240 AD2d 205, 205). Thus, the appellants are not entitled to coverage with respect to the legal malpractice claim alleged in the main action. In response to PIC's prima facie showing, the appellants failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted that branch of PIC's cross motion which was for summary judgment declaring that it has no duty to defend and indemnify the appellants in the main action, and properly, in effect, denied the appellants' motion for summary judgment seeking the contrary declaration.
The appellants' remaining contentions are without merit.
Since the appellants sought a declaratory judgment, the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that PIC is not obligated to defend and indemnify the appellants in the main action (see Lanza v Wagner, 11 NY2d 317, appeal dismissed 371 US 74, cert denied 371 US 901).
PRUDENTI, P.J., RIVERA, SANTUCCI and MILLER, JJ., concur.
Salsinha v Malcolm Pirnie, Inc.


Davidson & Cohen, P.C., Rockville Centre (Robin Mary
Heaney of counsel), for appellants.
Law Offices of Charles J. Siegel, New York (Peter E. Vairo of
counsel), for Malcolm Pirnie, Inc., respondent.
Fabiani Cohen & Hall, LLP, New York (Mary J. Joseph of
counsel), for municipal respondents.
Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered April 1, 2009, which, to the extent appealed from as limited by the briefs, granted defendants' motions for summary judgment dismissing plaintiff's Labor Law § 241(6) and Labor
§ 200 and common-law negligence claims, unanimously modified, on the law, to deny so much of the motion as sought to dismiss the Labor Law § 241(6) cause of action, and otherwise affirmed, without costs.
Defendant Malcolm Pirnie Inc. contends that, as the construction manager on the project, it cannot be held liable under Labor Law § 241(6) (see Walls v Turner Constr. Co., 4 NY3d 861, 863-864 [2005]). We find that whether Pirnie is subject to statutory liability in this case cannot be determined as a matter of law, in view of the terms of Pirnie's contract with defendant Department of Environmental Protection (DEP), which permitted Pirnie to choose subcontractors, and the testimony of the safety engineer for the injured plaintiff's employer that Pirnie was in charge of construction (while another entity hired by DEP was in charge of safety inspection) (see Mulcaire v Buffalo Structural Steel Constr. Corp., 45 AD3d 1426, 1428 [2007]).
The Labor Law § 200 and common-law negligence claims were correctly dismissed, since the record demonstrates that the injured plaintiff's injuries arose from the manner in which plaintiff performed his work, not from a defective condition of the workplace, and that none of the defendants exercised any control over plaintiff's work methods (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876 [1993]; Blessinger v Estee Lauder Cos., 271 AD2d 343 [2000]).
While the other Industrial Code (12 NYCRR) provisions relied on by plaintiff are either inapplicable to the facts of this case or insufficiently specific to permit recovery under Labor Law
§ 241(6), the record presents issues of fact that preclude summary dismissal of the section 241(6) claim insofar as it is based on an alleged violation of 12 NYCRR 23-9.2(a). This provision "imposes an affirmative duty on employers to correct[] by necessary repairs or replacement' any structural defect or unsafe condition' in equipment or machinery [u]pon discovery' or actual notice of the structural defect or unsafe condition" (Misicki v Caradonna, 12 NY3d 511, 521 [2009][quoting the regulation]). The record demonstrates that the driver's side door of the truck plaintiff used could not be opened from the inside; that, as a result, plaintiff had begun starting the truck while sitting in the driver's seat with one leg outside to keep the door from closing; and that on the day of the accident the truck moved while plaintiff was in that position, plaintiff fell onto the ground, and one wheel of the truck rolled over him. Whether the inability to open the truck door constitutes a "structural defect or unsafe condition" within the meaning of 12 NYCRR 23-9.2(a) and, if so, whether this structural defect or unsafe condition was the proximate cause of plaintiff's injuries must be determined by a factfinder (see Misicki, 12 NY3d at 521). Contrary to defendants' contention, their own lack of notice of the condition of the truck door is of no moment, since the record demonstrates that plaintiff's employer had been alerted to the problem before the day of the accident (see id.; Leon v Peppe Realty Corp., 190 AD2d 400, 408-409 [1993]). We note that
defendants have not challenged the application of subpart 23-9 of the Industrial Code (which includes section 23-9.2) to a truck of the kind involved in the subject incident.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
PIKE COMPANY, INC. v  COUNTY OF ALBANY v.  XL SPECIALTY


Calendar Date: June 1, 2010
Before: Mercure, J.P., Malone Jr., Kavanagh, Stein and Garry, JJ.

Wolff & Samson, P.C., New York City (Adam P.
Friedman of counsel), for third-party defendants-appellants.
McNamee, Lochner, Titus & Williams, P.C., Albany
(Francis J. Smith of counsel), for defendant and third-party
plaintiff-respondent.
MEMORANDUM AND ORDER
Mercure, J.P.
Appeal from an order of the Supreme Court (Egan Jr., J.), entered May 1, 2009 in Albany County, which denied third-party defendants' motion to dismiss the third-party complaint.
Pursuant to a 2005 contract, defendant hired plaintiff as a general contractor in connection with the renovation of the Albany County Courthouse. In 2008, plaintiff commenced this action in Supreme Court, Saratoga County, alleging that defendant, by its breaches of contract, obstructed and impeded plaintiff's performance. Subsequently, defendant terminated the contract and Supreme Court (Ferradino, J.) granted defendant's motion for a change of venue to Albany County. Approximately one month later, defendant sought to commence a third-party action against third-party defendants, which had issued a performance bond as plaintiff's surety. Upon discovering that the Saratoga County Clerk's office had not yet transferred the case file of the underlying action to the Albany County Clerk's office, defendant filed the third-party summons and complaint with the Saratoga County Clerk. Five days later, the Albany County Clerk's office received the transferred case file, including the third-party complaint. Third-party defendants moved to dismiss the third-party complaint, arguing that the failure to file it with the Albany County Clerk constituted a jurisdictional defect. Supreme Court denied the motion, prompting this appeal.
We now affirm. CPLR 1007 provides that a third-party action is commenced "by filing pursuant to [CPLR 304] a third-party summons and complaint with the clerk of the court in the county in which the main action is pending, for which a separate index number shall not be issued." With respect to determining the county in which the main action is pending, CPLR 511 (d) states that, upon entry of an order changing the venue of an action, "the clerk of the county from which it is changed . . . shall forthwith deliver to the clerk of the county to which it is changed all papers filed in the action . . ., which shall be filed .. . in the office of the latter clerk. Subsequent proceedings shall be had in the county to which the change is made as if it had been designated originally as the place of trial, except as otherwise directed by the court." Third-party defendants argue that, once the order changing venue was entered, defendant was required to file any papers with the Albany County Clerk and that its filing of the third-party complaint with the Saratoga County Clerk constituted a Mendon Ponds defect (see Matter of Mendon Ponds Neighborhood Assn. v Dehm, 98 NY2d 745, 747 [2002]) that deprived the court of subject matter jurisdiction over the third-party action. We disagree.
In Mendon Ponds, the Court of Appeals held that dismissal was required when papers were filed with the Clerk of the Supreme and County Courts, rather than the County Clerk. Specifically, the Court held that "[b]ecause appellants delivered the petition to the Chief Clerk of Monroe Supreme and County Courts, whose function is significantly different than that of the County Clerk, the petition was not filed and was properly dismissed" (id.). This Court has held that such a failure — a Mendon Ponds defect — "impacts the court's subject matter jurisdiction" and, thus, "is not the type of error that falls within the court's discretion to correct under CPLR 2001" (Matter of Miller v Waters, 51 AD3d 113, 117 [2008]). We explained that CPLR 2001 does not "allow courts to create subject matter jurisdiction where it does not exist" (id.; see MacLeod v County of Nassau, ___ AD3d ___, ___, 2010 NY Slip Op 04344, *4-5 [2010]).[FN1]
This case, in contrast, does not involve a Mendon Ponds defect; third-party defendants do not assert that defendant failed to file the third-party action with the County Clerk. Moreover, they do not dispute that Supreme Court has subject matter jurisdiction over the underlying action or that the court would have jurisdiction over the third-party action if it had been filed in Albany County. Rather, third-party defendants argue only that, under CPLR 511 (d), the third-party action was filed in the wrong county. CPLR 511 (d), however, "is a venue provision. It does not affect the jurisdiction of the court" (Matter of Travelers Indem. Co. of Ill. v Nnamani, 286 AD2d 769, 770 [2001]; see Matter of Caplan v Caplan, 30 NY2d 941, 943 [1972]; see also Benson v Eastern Bldg. & Loan Assn., 174 NY 83, 86-87 [1903]; Matter of Grune v Grenis, 171 AD2d 1070, 1071 [1991]; Empire Mut. Ins. Co. v West, 22 AD2d 938, 938 [1964]; Siegel, NY Prac § 116, at 209-210 [4th ed]; cf. State of New York v Forest-Fehlhaber, 74 AD2d 272, 275 [1980] [involving removal to a different court under CPLR 326]).
Indeed, on its face, CPLR 511 (d) presumes that subject matter jurisdiction is not affected because it provides that "[s]ubsequent proceedings shall be had in the county to which the change is made as if it had been designated originally as the place of trial, except as otherwise directed by the court" (emphasis added). If CPLR 511 (d) were intended to impact subject matter jurisdiction as third-party defendants argue, the courts would have no ability to direct "otherwise" — i.e., direct that subsequent proceedings may be held in the county from which venue is changed. In our view, third-party defendants' argument, although styled as a jurisdictional challenge, is in actuality a challenge to venue. As such, the alleged error in filing here amounted to "a technical, nonprejudicial procedural misstep" (MacLeod v County of Nassau, 2010 NY Slip Op 04344, at *5) of the type that CPLR 2001 permits the courts to disregard as a "mistake in the filing process" that does not impact subject matter jurisdiction (see Matter of Miller v Waters, 51 AD3d at 115-116; see also Matter of Tagliaferri v Weiler, 1 NY3d 605, 606 [2004]; Matter of Lott v Goord, 296 AD2d 631, 631-632 [2002]; Matter of Standifer v Goord, 285 AD2d 912, 912-913 [2001]). Accordingly, Supreme Court properly denied third-party defendants' motion to dismiss upon its conclusion that the filing of the third-party complaint in Saratoga County after entry of the order changing venue, but prior to transfer of the case file, did not affect its subject matter jurisdiction over the third-party action.
Malone Jr., Kavanagh, Stein and Garry, JJ., concur.
ORDERED that the order is affirmed, without costs.
Footnotes

Footnote 1:CPLR 2001, as amended effective August 15, 2007 (see L 2007, ch 529), reads: "At any stage of an action, including the filing of a summons with notice, summons and complaint or petition to commence an action, the court may permit a mistake, omission, defect or irregularity, including the failure to purchase or acquire an index number or other mistake in the filing process, to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded, provided that any applicable fees shall be paid" (emphasis added).

DINSTBER v ALLSTATE INSURANCE COMPANY


Calendar Date: May 28, 2010
Before: Cardona, P.J., Rose, Stein, McCarthy and Garry, JJ.

George C. Dinstber III, Cincinnatus, appellant pro se.
Goldberg & Segalla, L.L.P., Buffalo (Anthony L.
Germano of counsel), for respondent.
MEMORANDUM AND ORDER
Stein, J.
Appeal from an order of the Supreme Court (Rumsey, J.), entered January 23, 2009 in Cortland County, which, among other things, granted defendant's motion to extend its time to answer and to compel plaintiff to accept late service of the answer.
In January 2002, plaintiff notified defendant, his no-fault insurance carrier, of an accident wherein the car he was driving was struck from behind. Defendant denied coverage for the claim in July 2002. Almost six years later, plaintiff commenced this action for breach of contract and dealing in bad faith.
Plaintiff served a summons and verified complaint on the Insurance Department on July 29, 2008 pursuant to Insurance Law § 1212. However, defendant allegedly did not receive them until August 21, 2008. Although defendant served an answer on August 28, 2008, plaintiff rejected it because it was not verified. On September 4, 2008 — one day after receiving plaintiff's letter of rejection — defendant served a second answer, virtually identical to the first but properly verified, which was rejected by plaintiff as untimely. Defendant then promptly moved to extend its time to answer and to compel plaintiff to accept late service thereof. Plaintiff cross-moved for a default judgment. Supreme Court granted defendant's motion — giving defendant 30 days to file, serve and file proof of service of the second answer — and denied plaintiff's cross motion. Plaintiff now appeals and we affirm.
Pursuant to CPLR 3012 (d), Supreme Court has the discretion to permit late service of an answer upon the demonstration of a reasonable excuse for the delay or default (see Rickert v Chestara, 56 AD3d 941, 942 [2008]; Watson v Pollacchi, 32 AD3d 565, 565 [2006]). "To that end, '[w]hether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits'" (Rickert v Chestara, 56 AD3d at 942, quoting Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877 [2005]; see Watson v Pollacchi, 32 AD3d at 565). Also relevant is whether the untimely answer sets forth a meritorious defense to plaintiff's complaint (see Rickert v Chestara, 56 AD3d at 942; Watson v Pollacchi, 32 AD3d at 565).
Here, contrary to plaintiff's assertion, we find that defendant proffered both a reasonable excuse for its delay in serving a verified answer and a sufficiently meritorious defense to the claims. Defendant proffered several reasons for its delay. First, defendant submitted evidence that it did not actually receive the complaint from the Insurance Department until one week before the time to answer expired and that an incorrect date of service on the transmittal sheet caused further delay in the complaint being referred to counsel. After unsuccessfully attempting to contact plaintiff to obtain an extension of time to serve an answer, defendant effected such service one day after counsel's receipt of the complaint. Secondly, defendant alleged law office failure in neglecting to include the verification with the initial answer, which was timely served. In our view, these circumstances established a reasonable excuse for the default (see CPLR 2005).
We also note that defendant's answer set forth a myriad of defenses including, among others, failure to state a cause of action, failure to comply with the terms and conditions of the policy, fraud or perjury on plaintiff's part and that the claim is time-barred. In addition, defendant's attorney provided Supreme Court with the original denial of coverage letter, which set forth in detail the reasons why plaintiff's claim for benefits was denied. Such assertions set forth a sufficiently meritorious defense for purposes of defendant's motion (see Chase Manhattan Automotive Fin. Corp. v Allstate Ins. Co., 272 AD2d 772, 774-775 [2000]).
In view of defendant's reasonable excuse for the default, the minimal delay, defendant's expeditious motion to compel acceptance of the answer, the absence of proof that the default was willful or any indication that plaintiff was prejudiced by the delay, and the existence of an arguably meritorious defense, we conclude that Supreme Court's decision to grant defendant's motion to extend the time to answer and to compel plaintiff to accept service was a proper exercise of its discretion (see Rickert v Chestara, 56 AD3d at 942; Acker v VanEpps, 45 AD3d 1104, 1105, 1106 [2007]).
Plaintiff's remaining contentions, to the extent they are properly before us, have been considered and found to be unavailing.

Newsletter Sign-up

Fill in the form to register to receive any of our free electronic newsletters: