Coverage Pointers - Volume XI, No. 7

Dear Coverage Pointers Subscribers:

Fall has arrived with its colorful leaves, cooler temperatures, and interesting coverage decisions.  Our summer home in Canada will be boarded up shortly and we’ll leave Lake Erie until mid-April.  However, we will be celebrating Canadian Thanksgiving before we head back to the city home.

Training
Please note training problems described in Audrey and Steve’s columns.  They are great opportunities to pick up some great skills from excellent presenters.  We continue to schedule carrier training programs into the fall and winter.  We thank our friends in Syracuse for their hospitality this week, as we discussed additional insured, contractual indemnity and tender issues with a very nice group of claim professionals.

This Weeks Issue
There’s an eclectic collection of interest cases in this week’s edition, from SUM to late notice, to threshold to flying objects coming from car windows.  Enjoy and don’t hesitate to call for more information.

LinkedIn
For you social butterflies, come join us in the New York Insurance Law LinkedIn group which we created and moderate.  You’ll enjoy some “interactive” insurance discussions with some of the top lawyers around the country.  And – it’s free!

One Hundred Years Ago Today – A Tribute to Ed Larkin

We get such great feedback on our One Hundred Years Ago offerings.  We have a special one for you today.

October 2, 1909:  It was double-header, the last game of the regular season.  It was the first day Edward Larkin played in the major leagues.  It was also his last.  The Philadelphia Athletics were facing the Washington Senators.  Connie Mack, the fabled Philly manager, had hired a young Ed, a star catcher from the College of the Holy Cross.  Larkin had ridden the bench all that season, never getting a chance to get behind the plate or swing the bat.  But this day was different.  The starting catcher hurt his thumb on a foul tip and Mack put in Larkin.  Jimmy Dygert, the A’s star spitball pitcher was on the mound and Larkin had the unenviable task of trying to catch one of the toughest pitches in baseball.  One news report indicated that Dygert threw two spitters “to the youngster and Larkin caught them more with his chest protector than hands.  Larking ended up with three errors that day, his only day in the major leagues, and never returned to play in the big leagues.  By the way, the records show that Larkin was part of a rare triple play with Dygert on the mound.

What happened to Ed Larkin?  Your editor was fortunate enough to find his grandson and namesake, Ed Larkin, a New York City attorney with Baritz & Colman, LLP and he has been a delight to work with on this piece.  Ed (the lawyer’s) father who was, of course, Ed (the ballplayer’s) son also gets thanks.  Over the past two weeks the Larkin family has helped add a little color to the story and I thank them both.

Ed (the ball player) Larkin was born and raised in Heydenville, MA,  a town which still is chock full of Larkins  His dad ran a country store (with the family living above it) and his father served as a Massachusetts State Senator.  Ed started playing baseball at an early age and it was his entry into Holy Cross.  During his stint there, he broke all of his fingers on his throwing hand and that may have explained his errant throws in his major league debut.

After his brief professional career, Larkin took his baseball money and went to MIT and became a civil engineer.  Nice family and a nice story.

KOHANE’S COVERAGE CORNER

Dan D. Kohane
[email protected]

  • Documents in Liability Insurance Company’s Files Are Privileged, With Few Exceptions
  • Don’t Forget, the State Insurance Fund Is a State Agency
  • Sufficient Evidence to Support Referee’s Finding That Person Injured When “Alighting” from Truck Was Sufficiently “Vehicle Oriented” to Be Entitled to SUM Benefits
  • A Good Read on Two Important Points.  Lateness of SUM Disclaimer Immaterial Where Carrier’s Denial is Based on Insured Status of Claimant.  Where Insured Is Corporation, It Cannot Have “Resident Relatives” Who Qualify as “Insured”

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

Margo M. Lagueras
[email protected]

  • Expert’s Explanation Is Needed to Rule-Out Degenerative Nature of a Preexisting Condition
  • Unsworn Letter from Dentist Has No Probative Value
  • Evidence of Range-of-Motion Limitations, Particularly if Coupled With Positive MRI and EMG Results, Will Defeat Summary Judgment
  • Defendant Is Not Required to Submit Medical Records of Injury Where Plaintiff’s Evidence of a Prior Injury Consists Only of His Own Deposition Testimony
  • When Defendants’ Experts Contradict Each Other, They Raise Triable Issues of Fact
  • Physician’s Affirmation Causally Relating an Injury Shown in an X-Ray Report Raises Triable Issue of Fact
  • Trial Court’s Decision Is Reversed Despite Examining Physicians’ Reports Which Differ As to What Is Normal Range-of-Motion
  • Hearsay Affirmation of an Attorney, Standing Alone, Does Not Raise a Triable Issue of Fact

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

  • Failure to Provide Requested IME Report Does Not Lead to Preclusion But Conduct May Have Adverse Effect on Evidentiary Weight to Report
  • Transportation Issue Valid Reason Why Couldn’t Attend IME; P.S. – Take A Cab Next Time
  • IMPORTANT CHANGE: Hospital Surcharges Paid Directly to Pool Cannot Offset Applicant’ Aggregate Benefit Limit.

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper
[email protected]

  • Landlord’s Indemnity Clause Fails where It Provides Indemnification for Landlord’s Own Negligence, and Does Not Contain “Fullest Extent Permitted By Law” Language
  • No Vicarious Liability for Owner Under V&T § 388 Where Injuries Resulted from Intentional Actions of a Passenger

FIJAL’S FEDERAL FOCUS

Katherine A. Fijal
[email protected]

Over the past couple of weeks there have been no new insurance related decisions coming out of the Second Circuit.  We will continue to monitor the Court and advise as decisions become available.

EARL’S PEARLS

Earl K. Cantwell
[email protected]

Speaking Authorizations – But Who Gets to Talk?

Keep the great feedback coming in and let us know when you need a little training visit from your friendly New York State coverage team.

All the best.

Dan

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

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

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

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

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

Index to Special Columns

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

KOHANE’S COVERAGE CORNER

Dan D. Kohane
[email protected]

10/1/09           McClier Corporation v. United States Rebar, Inc.
Appellate Division, First Department
Documents in Liability Insurance Company’s Files Are Privileged, With Few Exceptions
Plaintiff sought access to a liability’s insurance company’s file. Insurer objected based on privilege and provided a privilege log identifying each of the documents and grounds for privilege for each.  The court then conducted a review of those documents and ruled that most were protected by either the attorney-client privilege, or the  attorney work product, or were materials prepared for litigation

Documents in an insurer's claim file that were prepared for litigation against its insured are immune from disclosure and while documents prepared in an insurer's ordinary course of business in investigating whether to accept or reject coverage are discoverable, those were not the documents in the file.

9/24/09           Twin City Fire Insurance Company v. State Insurance Fund
Appellate Division, First Department
Don’t Forget, the State Insurance Fund Is a State Agency
Carrier sought a declaration that the State Insurance Fund is obligated to share in the defense of a lawsuit.  “Call it what you want,” sayeth the First Department.  “It’s still an action seeking money – 50% of the costs of the litigation.”  Accordingly, the Court held that the action cannot be brought in the New York State Supreme Court, but must be brought in the Court of Claims, the special court designed to handle actions against the state and its agencies, seeking money damages.

9/22/09           In re Continental Casualty Company v. Lecei
Appellate Division, First Department
Sufficient Evidence to Support Referee’s Finding That Person Injured When “Alighting” from Truck Was Sufficiently “Vehicle Oriented” to Be Entitled to SUM Benefits
At a hearing, the referee found that respondent was "occupying" the truck and thus entitled to Underinsured Motorists (SUM) benefits.  The testimony was that he was alighting from the truck when he was struck by a passing motorist. The First Department found that the evidence supported the conclusion that respondent was "still vehicle-oriented" at the time he was injured and thus entitled to those benefits.  

9/22/09           Siragusa v. Granite State Insurance Co.
Appellate Division, Second Department
A Good Read on Two Important Points.  Lateness of SUM Disclaimer Immaterial Where Carrier’s Denial is Based on Insured Status of Claimant.  Where Insured Is Corporation, It Cannot Have “Resident Relatives” Who Qualify as “Insured”
The plaintiff is the guardian of Josette, who resides in an apartment sponsored by the Guild.  Josette was crossing the street when she was struck by a vehicle insured by State Farm.  State Farm Insurance Company tendered the policy limits, the plaintiff submitted a claim to the defendant Granite State for underinsured motorist (SUM) benefits under the policy that Granite issued to the Guild. Five months later, the plaintiff was notified that Granite denied the claim on the ground that Josette was not an insured under the SUM endorsement to the policy.  The plaintiff claimed that the passage of five months should lead to a determination that the disclaimer is late and therefore ineffective.
Since the disclaimer was not based on an exclusion or condition of coverage, but based on the question of whether Josette was an insured under the policy, a disclaimer is unnecessary.  Accordingly, where a claim is denied because the claimant is not an insured under the policy, there is no statutory obligation to provide prompt notice of the disclaimer64). The plaintiff's argument that Granite may not assert that Josette Siragusa is not an insured under the policy because it failed to timely disclaim on that ground is fails.
Moreover the insured, under the policy was the “Guild” – a corporation.  The definition of "insured" in the SUM endorsement: "You, as the named insured and, while residents of the same household, your spouse and the relatives of either you or your spouse." "You" in the definition refers to the Guild, a corporation, which cannot have a spouse or relative.  This interpretation of the SUM endorsement does not render the coverage meaningless, as the endorsement also includes, in the definition of an insured, any person in a vehicle insured for SUM benefits under the policy.  As Josette was a pedestrian, she does not fall within that definition.
Editor's Note:  The counseling points are important.  Remember that disclaimers based on failure to be within the GRANT of coverage are not subject, generally, to the same rules of timeliness and copies send to others.  Also, look closely at the policy definitions.

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

Margo M. Lagueras
[email protected]

10/1/09           Lopez v. American United Transportation, Inc.
Appellate Division, First Department
Expert’s Explanation Is Needed to Rule-Out Degenerative Nature of a Preexisting Condition
The trial court is reversed, on the law, where the defendants’ expert reports provided a detailed analysis of plaintiff’s preexisting conditions and their degenerative nature which supported the theory that the plaintiff’s injuries were related to such conditions.  The plaintiff’s expert, on the other hand, did not even address these conclusions, let alone explain how the plaintiff’s age, obesity or prior occupation were not responsible for the injuries to his lumbar spine and right rotator cuff.

10/1/09           Autiello v. Cummins
Appellate Division, Third Department
Unsworn Letter from Dentist Has No Probative Value
Here it was the plaintiff who brought the motion and sufficiently met her burden.  The collision caused her to strike her mouth on the steering wheel.  According to her medical records, she reported pain in the upper lip area two days later.  Her dentist’s affidavit stated that she had fractured the front tooth which years earlier had had a metal post inserted into it as a result of root canal work.  The dentist concluded that only as a result of blunt force trauma, such as striking her mouth on the steering wheel, could the metal post have driven through the tooth and into the gum tissue, causing the tooth to fracture.  This was corroborated by the affidavit of another dentist who also treated the plaintiff for the injury.

In opposition to the plaintiff’s motion, the defendant submitted the unsworn letter of a dentist who concluded that there was no evidence linking the injury to the accident and that root canal work generally resulted in teeth being more prone to fracture.  The Court held that the unsworn letter had no probative value and was incompetent support to oppose the motion, but that even if it had been sworn, the conclusion was conclusory and unsupported and insufficient to oppose the plaintiff’s motion.

9/29/09           Colon v. Bernabe
Appellate Division, First Department
Evidence of Range-of-Motion Limitations, Particularly if Coupled With Positive MRI and EMG Results, Will Defeat Summary Judgment
Here the Court reinstated that portion of the plaintiff’ claims which alleged injury under the permanent consequential limitation of use and/or a significant limitation of use categories.  The plaintiff submitted the affidavit of her chiropractor which set forth quantitative evidence of limited range-of motion of the cervical and lumbar spine, which findings conflicted with those of defendant’s expert, who found no limitations.  In addition, the plaintiff’s MRIs and EMG studies showed bulging and herniated discs and radiculopathies, sufficient to defeat summary judgment.  Furthermore, based on objective testing and physical examination of the 22-year old plaintiff, who had never sustained a back injury, her experts stated that the injuries were causally related to the accident and not the result of degenerative disc disease, as stated by the defendants’ radiologist.

9/24/09           Chintam v. Fenelus
Appellate Division, First Department
Defendant Is Not Required to Submit Medical Records of Injury Where Plaintiff’s Evidence of a Prior Injury Consists Only of His Own Deposition Testimony
The plaintiff raised a triable issue of fact with regard to his claimed injuries to his cervical spine and right ankle.  However, he failed with regard to the lumbar spine because he failed to present sufficient evidence to rebut the defendant’s assertion of lack of causation.  During his deposition, the plaintiff admitted that he sustained a prior work-related injury to his lower back.  Based on that testimony, the defendant asserted lack of causation of the motor vehicle accident to the lumbar spine injury.  While the plaintiff’s physician opined that the prior injury had resolved before the motor vehicle accident, that opinion was conclusory as it was made solely in reliance on the plaintiff’s statements.  The court found that because the plaintiff did not submit any objective medical evidence of the prior injury and, in fact, the only evidence of the prior lumbar injury was the plaintiff’s “persuasive” admission in his deposition, there was no requirement that the defendant submit medical records of the injury.

9/22/09           Fernandez v. Niamou
Appellate Division, First Department
When Defendants’ Experts Contradict Each Other, They Raise Triable Issues of Fact
The defendants’ experts’ reports addressing the permanent consequential limitation of use and significant limitation of use categories were contradictory.  One expert found degenerative changes in the plaintiff’s lumbar and cervical spines, while the other expert found no such degenerative changes and additionally failed to rule out traumatic injury to the neck as a result of the accident. 

The plaintiff’s claim under the 90/180-day category failed, however, because, although the plaintiff missed more than 90 days of work, there was no evidence presented that the plaintiff was prevented from performing substantially all her usual and customary daily activities.

9/22/09           Bojorquez v. Sanchez
Appellate Division, Second Department
Physician’s Affirmation Causally Relating an Injury Shown in an X-Ray Report Raises Triable Issue of Fact
In opposition to the defendant’s prima facie showing, the plaintiff submitted her physician’s affirmation which concluded that the fracture of the left hip revealed in the affirmed X-ray report was causally related to the accident.  This was sufficient to raise a triable issue of fact under the fracture category of serious injury and defeat the defendant’s motion for summary judgment.

9/22/09           Layne v. Drouillard
Appellate division, Second Department
Trial Court’s Decision Is Reversed Despite Examining Physicians’ Reports Which Differ As to What Is Normal Range-of-Motion
The trial court had denied the defendant’s motion for summary judgment to dismiss the complaint and the Appellate Court reversed, finding, among other things, that the plaintiff’s deposition testimony established that he not only resumed his duties as a New York City police officer, but attended the police academy, passing rigorous physical tests, to become an officer in another jurisdiction.

The dissent, however, opined that the defendant had not met his burden on the motion because, although the two examining physicians agreed that the plaintiff’s lumbar range-of-motion was normal, they reached that conclusion using different factual findings and opinions as to what is normal.  One physician stated that the plaintiff had 45 degrees ROM in the lumbar spine and that 45 degrees was normal.  The other stated that the plaintiff had 25 degrees ROM and that that was normal.  The dissent reasoned that this, in of itself, raised an issue of fact.  The dissent further stated that, although the physical activities involved in the plaintiff’s employment might defeat the motion at trial, they did not entitle the defendant to judgment as a matter of law given that there was no proof as to the results of specific medical examinations or activities to which the plaintiff was subjected.

8/28/09           McHugh v. Marfoglia
Appellate Division, Fourth Department
Hearsay Affirmation of an Attorney, Standing Alone, Does Not Raise a Triable Issue of Fact
The plaintiff brought a motion for summary judgment seeking to dismiss the defendants’ fourth affirmative defense which alleged he did not sustain a serious injury.  The Appellate Court reversed, finding that the plaintiff’s submissions of 1) his neurosurgeon’s affirmation, which causally related the cervical disc herniation and surgery to the accident and stated that the injuries were significant and permanent, and 2) the defendants’ neurosurgeon’s report which quantified the cervical range-of-motion loss correlated to what is normal, were sufficient to met his burden as regards the permanent consequential limitation of use and the significant limitation of use categories, warranting the dismissal of the fourth affirmative defense. 

The Court further found that the defendants’ failed to raise a triable issue of fact in opposition to the plaintiff’s motion because they only submitted an attorney affirmation and a copy of an alleged surveillance video which was not authenticated.  In addition, their neurosurgeon agreed with the findings of the plaintiff’s neurosurgeon both as to the injury and its causation.

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

TRAINING ALERT:
The National Business Institute is conducting a seminar entitled Effective No-Fault Strategies in Buffalo on November 18 and in Syracuse on November 19.  The cost is $319.00 for the first registrant and $309.00 for each additional registrant.  Please note that if you have a group of three or more that there are group discounts available.  This seminar is a pure no-fault seminar and will have participation from the American Arbitration Association as well as the plaintiff and defense bars.  I have been told that there will be two arbitrators present at the Buffalo location and one at the Syracuse location.  If you would like the brochure please email me at [email protected]

Arbitration
9/25/09           William Cappicotto MD PC v. Preferred Mut. Ins. Co.
Arbitrator Thomas J. McCorry (Erie County)
Failure to Provide Requested IME Report Does Not Lead to Preclusion But Conduct May Have Adverse Effect on Evidentiary Weight to Report.
The Applicant purportedly requested on multiple occasions, prior to filing the arbitration, a copy of the independent medical examination (“IME”) report upon which the denials were based upon.  The Applicant sought preclusion of the IME report in the arbitration which was denied by the Arbitrator.  The Arbitrator indicated that while the insurer’s failure to respond to repeated requests is “reprehensible and in violation of the regulations” it would be inappropriate to preclude the report.  Yet, the Arbitrator indicated such conduct “may effect the evidentiary weight afforded to the report.”  Ultimately, the IME report was determined to have vague language that was not persuasive as to whether the surgery was medically necessary.

9/21/09           Applicant v. Travelers Property Cas. Co.
Arbitrator Mary Anne Theiss (Onondaga County)
Transportation Issue Valid Reason Why Couldn’t Attend IME; P.S. – Take A Cab Next Time.
The Applicant, eligible injured person, was asked to attend an orthopedic independent medical examination.  The Applicant had already attended chiropractic examinations.  The Applicant requested that the December 10, 2008, orthopedic examination be rescheduled due to a scheduling problem.  The Applicant only had one vehicle which was shared with her husband who was working and using the vehicle Monday through Thursday.  The insurer stated that the examination had to be on a Thursday and agreed to reschedule the examination.  The Applicant agreed to attend the scheduled exam even though it would be on a Thursday. 

After the exam was rescheduled for another Thursday, the night before the exam the Applicant realized that she could not attend because of her husband’s schedule.  The insurer advised that she must attend.  An hour before the exam the Applicant discovered that her husband would not be able to return in time for her to attend the exam.  The Applicant advised of this problem and asked if she could come in later for the exam.  The Applicant was advised that she must attend as scheduled.  The Applicant did not attend the scheduled exam because she had no way to get to the exam.  Her benefits were subsequently denied.

The Arbitrator determined that the insurer should not have counted the rescheduled exam as a failure to appear.  Therefore, the insurer only has one non-appearance which was unjustified to deny benefits.  Further, the Applicant provided a reasonable excuse for not being able to attend.  The Arbitrator suggest that the Applicant next time take a taxi to the exam if necessary.

9/16/09           NYS Insurance Department Circular Letter No. 21
IMPORTANT CHANGE: Hospital Surcharges Paid Directly to Pool Cannot Offset Applicant’ Aggregate Benefit Limit.
In the past, if the insurer pays surcharges under the Health Care Reform Act (“HCRA”) to the New York State Department of Health’s Office of Pool Administration, the Insurance Department’s opinion was that the insurer could offset that amount toward the aggregate no-fault benefit limit.  The Department’s position has changed!

The Department’s position is now that insurers and self-insurers cannot offset the applicant’s aggregate no-fault benefit limit for the payment of the surcharge even if paid directly to the Pool Administration.

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper
[email protected]

TRAINING ALERT, PART DEUX:
The New York State Bar Association is again conducting its popular Law School for Claims Professionals seminar.  As some of you may know, this day long instructive course is designed solely for insurance professionals.  In addition to the annual update, this year’s seminar also contains two interactive workshops which will focus upon the practical application of legal developments to the claim handler’s daily life.  The Seminar is scheduled to run in Buffalo (10/16), New York (10/16), Long Island (10/23), Albany (10/30), and Syracuse (11/6).

Our own Audrey Seeley and Shawn Martin will be presenting at the Buffalo location, and your humble author is scheduled for the enjoyment of our friends at the Syracuse location.  If you would like a copy of the brochure please email me at [email protected].  We hope to see you there.

9/18/09           Mendieta v 333 Fifth Avenue Association, et al.
Appellate Division, Second Department
Landlord’s Indemnity Clause Fails Where It Provides Indemnification for Landlord’s Own Negligence, and Does Not Contain “Fullest Extent Permitted By Law” Language
Plaintiff, an employee of SPN, sustained injury when he fell down an elevator shaft at a premises owned by defendant/owner.  At the time of the incident, plaintiff was in the course of his employment with SPN, and SPN was a tenant at the premises at issue.  Thereafter, defendant/owner commenced a third-party action seeking contractual indemnification from SPN for any losses related to plaintiff’s fall.

As a condition to obtaining a key to access the elevator where plaintiff sustained injury, defendant/owner required the tenant requesting access to agree to indemnify defendant/owner for all injuries related to its use.  The indemnification clause was not limited to damages resulting from the tenant or a third-party’s negligence.  Rather, the clause could be read to provide indemnity protection for the defendant/owner even if the defendant/owner’s negligence caused or contributed to the accident.  Further, the indemnity clause at issue did not contain the familiar “fullest extent permitted by law” that we have all grown accustomed to seeing.

As a result, SPN moved to dismiss the contractual indemnification claim on the basis that it violated General Obligations Law § 5-321.  For those who do not know, the GOL prohibits a landlord from being indemnified for its own negligence much like it prohibits general contractors and owners from indemnified in construction contracts for their own negligence, respectively.  As the clause at issue purported to provide indemnity protection to the defendant/owner for its own negligence, the clause, as written, was unenforceable.  In turn, SPN’s motion to dismiss was granted accordingly.

9/18/09           Ciminello v Sullivan
Appellate Division, Second Department
No Vicarious Liability for Owner under V&T § 388 Where Injuries Resulted from Intentional Actions of a Passenger
Plaintiff allegedly sustained injury when he was struck in the face by a cup that was thrown from a passing vehicle.  As a result of the incident, plaintiff commenced the instant action against the owner of the vehicle, the owner’s son who happened to be driving the vehicle at the time of the incident, and the passenger in the vehicle that, by all accounts, launched the cup at plaintiff.  Notably, all of plaintiff’s causes of action were based in negligence.

On motions for summary judgment, the Trial Court dismissed the claims against the owner of the subject vehicle on the basis that the incident did not arise out of the use or operation of a motor vehicle.  As V&T § 388 requires that owner’s liability be based on the use or operation of the vehicle, the Second Department had little trouble affirming the Trial Court’s dismissal.

With regard to the other defendants’ motion (driver and passenger), and plaintiff’s cross-motion for summary judgment on negligence, the Trial Court noted that the incident did not arise from negligence at all.  Rather, the cup throwing incident was an intentional act (battery).  In turn, the Trial Court denied all remaining motions, and sua sponte, instructed plaintiff to amend his pleading to assert a claim for battery.  This part of the Trial Court decision was likewise affirmed by the Second Department

*** Reminder: While dispostive in the tort world, the Court’s apparent finding that the passenger’s actions were intentional DOES NOT necessarily have an impact on the world of coverage.  Remember, a determination of coverage is always governed by the terms of the policy at issue which can certainly vary from policy to policy.  ***

FIJAL’S FEDERAL FOCUS

Katherine A. Fijal
[email protected]

            Over the past couple of weeks there have been no new insurance related decisions coming out of the Second Circuit.  We will continue to monitor the Court and advise as decisions become available.

EARL’S PEARLS

Earl K. Cantwell
[email protected]

Speaking Authorizations – But Who Gets to Talk?

In a recent case, the Appellate Division, Second Department, dealt with further fallout from the Court of Appeals decision in Arons v. Jutkowitz, 9 N.Y.3d 393.  At issue in the case of Porcelli v. Northern Westchester Hospital Medical Center, 2009 N.Y. Slip Op. 04881 (2d Dept. June 9, 2009), was the form and format of so-called “speaking authorizations” to be provided by plaintiff. 

Porcelli was a medical malpractice action initiated on behalf of an infant plaintiff.  Well after the note of issue was filed and after jury selection was scheduled, counsel for one of the defendants requested HIPAA-compliant authorizations from the plaintiff seeking to allow ex parte interviews with treating physicians in accordance with Arons.  A cross motion ensued wherein the plaintiff attempted to include certain specified language in the authorizations stating that “The purpose of the requested interview with the physician is solely to assist defense counsel at trial”, and “The physician is not obligated to speak with defense counsel prior to trial.  The interview is voluntary.”  Further priming the legal pump, the referenced disclaimers were highlighted in yellow (so the treating physicians would be sure not to miss them). 

The Trial Court granted the motion to compel the authorizations, but allowed the authorizations to contain the challenged language.  In its analysis, the Trial Court noted that in one of the cases reviewed and affirmed in Arons, the lower court had ordered inclusion of similar language directly on the authorizations. 

In Arons v. Jutkowitz, supra, the Court of Appeals held there was no general prohibition against defense counsel conducting ex parte interviews with non-party treating physicians, even after the Note of Issue had been filed, provided counsel complied with procedural prerequisites set forth in the HIPAA privacy rules and with limitations set forth in analogous case law concerning interviews with, for example, employees of corporations.  The Court of Appeals approved such interviews but stated that an attorney who approaches a non-party treating physician, or other health care provider. He or she must reveal the client’s identity and interest make clear that any discussion with counsel is entirely voluntary and that any discussion and information is limited in scope to the particular medical condition at issue in the litigation.  Parenthetically, the Court of Appeals did overturn lower court orders requiring defense counsel to turn over to the plaintiff copies of all statements and notes from the treating physicians, as well as any transcripts, recordings, or notes of the interview. 

On appeal in Porcelli, the Second Department affirmed the Trial Court order.  Substantively, the Second Department noted that the Court of Appeals in Arons did not strike down conditions requiring that the physician be informed by the plaintiff directly on the authorization itself, in boldface type, that the purpose of the interview is to assist the defendants in defense of a lawsuit, and it is not at the request of the plaintiff.  The Second Department basically concluded that this information must be conveyed to the treating physician by someone somehow in terms of substantive compliance with Arons and HIPAA. 

The Second Department rejected the defense contention that the decision in Arons mandates that such admonitions be presented only by defense counsel.  Which counsel conveys the information, and in what manner, was deemed of “secondary importance”.  The Court ruled that the method the plaintiff employed here – placing the admonitions directly on the HIPAA-compliant authorizations and highlighting the language – is consistent with Arons and serves the primary purpose of conveying the information in a manner that prevents accidental disclosure of privileged information.  Defense counsel had stridently argued that plaintiff’s tactic conveyed the information in a manner least likely to gain cooperation from the treating physician.  The Second Department either did not give this argument much credence, or did not care, and essentially concluded that Arons does not require that only defense counsel be the “messengers” of such cautionary admonitions. 

Having opened up the flood gates to such “speaking authorizations” in Arons, the Court of Appeals may likely have to decide further on such contentious issues as to the form and format of the authorizations, conduct of the interviews, and tactics by plaintiff’s counsel to thwart such interviews and tactics by defense counsel to gain access and conduct such interviews, particularly in contentious medical malpractice and major personal injury litigation. 

 

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

9/28/09           Owners Insurance Co. v. Smith Mechanical Contractors, Inc.
Insurance Company Was Required to Provide Coverage for Damages to Machinery That Occurred While insured Moved Machinery
Supreme Court of Georgia
The Supreme Court of Georgia held that because the insured moved the machinery to serve a third party’s interest while acting under the third party’s direction and control, the policy exclusion for “property damage to . . . [p]ersonal property in the care, custody or control of the insured” did not apply. Furthermore, the court ruled that the insurance company could not claim that the insured incurred no liability because the third party had exclusive control of the machinery. The court found that the insured had shared possession of the machinery, and the insurance company was estopped from stating that the insured’s payment to the third party was voluntary. The insurance company had a duty to defend the insured, and when it did not defend the insured, the insurance company became bound to pay the amount of the settlement within the policy limits.
Submitted by: Gray Culbreath, Collins and Lacy - Posted: 09/30/2009

9/14/09           Twenhafel v. State Auto Property and Casualty Ins. Co.
Seventh Circuit Court of Appeals
Circuit Court Only Allows Prejudgment Interest When the Insurance Company Acts Badly or Unreasonably
Roger Twenhafel insured his business property through an “open peril” insurance policy issued by State Auto Property and Casualty Insurance Company. Twenhafel sought coverage under the policy for loss of his raw wood inventory damaged by rain as a result of a severe storm. State Auto denied Twenhafel’s claim on the basis that the loss was excluded from coverage because the inventory was damaged by rain while it was “in the open.” Twenhafel filed suit alleging that State Auto breached the policy. State Auto removed the case to federal court, where the parties filed cross-motions for summary judgment on the issue of liability. Twenhafel also moved for summary judgment on the issue of damages. The district court entered summary judgment in favor of Twenhafel and awarded damages, prejudgment and postjudgment interest, and costs. State Auto appealed and the Circuit Court affirmed the judgment of the district court except on the issue of prejudgment interest. On that issue the court vacated and remanded for further proceedings because there was no mention in the district court’s opinion that State Auto’s actions constituted “bad, vexatious, or unreasonable conduct” to justify a higher interest rate.
Submitted by: Lindsay Weber & Kristen Ray

 

REPORTED DECISIONS

In re Continental Casualty Company v. Lecei

London Fischer LLP, New York (James Walsh of counsel), for
appellant.
Menagh & Falcone, P.C., New York (Joseph S. Hubicki of
counsel), for respondent.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered June 4, 2009, which denied petitioner's motion to reject the Special Referee's report that at the time of the accident respondent was "occupying" his employer's vehicle within the meaning of the supplemental underinsured motorist provision of the employer's insurance policy, granted respondent's motion to confirm the report, and dismissed the petition to stay arbitration, unanimously affirmed, with costs.
The Special Referee's finding that respondent was "occupying" the truck within the meaning of the policy is substantiated by respondent's testimony that he was alighting from the truck when he was struck by a passing motorist. Contrary to petitioner's contention, the evidence supports the conclusion that respondent was "still vehicle-oriented" at the time he was injured (see Matter of Rice v Allstate Ins. Co., 32 NY2d 6, 11 [1973]). There is no basis to disturb the Special Referee's credibility findings regarding the hearing testimony and prior inconsistent statements of respondent's coworker (see Kardanis v Velis, 90 AD2d 727, 727 [1982]).
Twin City Fire Insurance Company v. State Insurance Fund


Dillon Horowitz & Goldstein LLP, New York (Thomas Dillon
of counsel), for appellant.
Law Offices of Michael E. Pressman, New York (Robert H.
Fischler of counsel), for respondent.
Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered on May 7, 2008, which granted plaintiff's motion for summary judgment and denied defendant's cross motion to dismiss the complaint, unanimously reversed, on the law, with costs, the motion denied, the cross motion granted, and the complaint dismissed, without prejudice. The Clerk is directed to enter judgment accordingly.
Plaintiff sought defendant's assumption of its defense and indemnity in an underlying personal injury action, and contribution of 50% toward the costs of defending and settling that action. Although denominated an action for declaratory relief, this is essentially an action to recover money damages against a State agency, the proper forum for which is the Court of Claims (D'Angelo v State Ins. Fund, 48 AD3d 400, 402 [2008]).
Siragusa v. Granite State Insurance Co.


Henry Stanziale, Mineola, N.Y. (Thomas Stanziale of counsel), for
appellant.
Beth Zaro Green, Brooklyn, N.Y. (Michael J. Fleming of
counsel), for respondent Granite State
Insurance Co.
Edward Garfinkel, Brooklyn, N.Y. (Fiedelman & McGaw
[Dawn C. DeSimone], of counsel), for
respondent York Insurance Services
Group, Inc.

DECISION & ORDER
In an action for a judgment declaring, inter alia, that the defendant Granite State Insurance Co. is obligated to provide supplemental uninsured/underinsured motorist benefits to Josette Siragusa, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Battaglia, J.), dated July 9, 2008, which denied his renewed motion for summary judgment on the complaint, granted the cross motions of the defendants Granite State Insurance Co. and York Insurance Services Group, Inc., for summary judgment, in effect, declaring that the defendant Granite State Insurance Co. is not obligated to provide supplemental uninsured/underinsured motorist benefits to Josette Siragusa, and declared that Josette Siragusa was not an insured under the supplemental uninsured/underinsured motorist endorsement of the policy issued by the defendant Granite State Insurance Co. to the defendant Guild for Exceptional Children, Inc.
ORDERED that the order and judgment is affirmed, with one bill of costs.
The plaintiff is the guardian of Josette Siragusa, who resides in an apartment sponsored by the defendant Guild for Exceptional Children, Inc. (hereinafter the Guild). Josette Siragusa was crossing the street when she was struck by a vehicle insured by State Farm Insurance Company. After State Farm Insurance Company tendered the policy limits, the plaintiff submitted a claim to the defendant Granite State Insurance Company (hereinafter Granite), for supplemental uninsured/underinsured motorist (hereinafter SUM) benefits under the policy that Granite issued to the Guild. Five months later, the plaintiff was notified that Granite denied the claim on the ground that Josette Siragusa was not an insured under the SUM endorsement to the policy.
"A disclaimer is unnecessary when a claim does not fall within the coverage terms of an insurance policy" (Markevics v Liberty Mut. Ins. Co., 97 NY2d 646, 658 [internal quotation marks omitted]). Therefore, where a claim is denied because the claimant is not an insured under the policy, there is no statutory obligation to provide prompt notice of the disclaimer (see Matter of Nationwide Ins. Co. v Smaller, 271 AD2d 537; Matter of Fireman's Fund Ins. Co. v Freda, 156 AD2d 364). Accordingly, the plaintiff's argument that Granite may not assert that Josette Siragusa is not an insured under the policy because it failed to timely disclaim on that ground is without merit (see Zappone v Home Ins. Co., 55 NY2d 131).
Furthermore, the Supreme Court correctly determined that Josette Siragusa is not an insured under the following definition of "insured" in the SUM endorsement: "You, as the named insured and, while residents of the same household, your spouse and the relatives of either you or your spouse." "You" in the definition refers to the Guild, a corporation, which cannot have a spouse or relative (see Buckner v Motor Veh. Acc. Indem. Corp., 66 NY2d 211; Hogan v CIGNA Prop. & Cas. Cos., 216 AD2d 442). Contrary to the plaintiff's contention, this interpretation of the SUM endorsement does not render the coverage meaningless, as the endorsement also includes, in the definition of an insured, any person in a vehicle insured for SUM benefits under the policy (see Buckner v Motor Veh. Acc. Indem. Corp., 66 NY2d 211). Josette Siragusa does not, however, fall within that definition of an insured either, since she was a pedestrian at the time of the accident.

Chintam v. Fenelus


Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for appellant-respondent.
Weiser & Associates, LLP, New York (Huy M. Le of counsel),
for respondent-appellant.
Order, Supreme Court, New York County (Paul Wooten, J.), entered April 3, 2009, which denied defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, to dismiss plaintiff's claims of injury to his lumbar spine and a significant disfigurement, and otherwise affirmed, without costs.
Defendant established prima facie, through her experts' affirmations reporting the results of the objective tests they performed, that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]), notwithstanding the experts' failure to review the MRI and EMG reports (see Onishi v N & B Taxi, Inc., 51 AD3d 594, 595 [2008]; Style v Joseph, 32 AD3d 212, 214 [2006]).
In opposition, plaintiff presented sufficient evidence to raise an issue of fact as to the existence of a "permanent consequential limitation of use of a body organ or member" or a "significant limitation of use of a body function or system" (Insurance Law § 5102[d]). His treating physician's affirmation reported, based on objective tests, losses of range of motion in his cervical and lumbar spine and in his right ankle (see Toure, 98 NY2d at 352-353). However, as to his claimed lumbar spine injury, plaintiff failed to present sufficient evidence to meet defendant's assertion of lack of causation, which arose from plaintiff's own deposition testimony admitting a prior work-related injury to his lower back, with "positive" x-ray (see Brewster v FTM Servo, Corp., 44 AD3d 351, 352 [2007]). Plaintiff's physician's assertion that the prior injury had resolved before the automobile accident was conclusory, made apparently in reliance solely on plaintiff's statements, and not substantiated by any medical or objective evidence (see DeSouza v Hamilton, 55 AD3d 352 [2008]). As the evidence of this prior injury to his lumbar spine was plaintiff's own "persuasive" admission, defendant was not required to submit medical records of the injury (see Linton v Nawaz, 62 AD3d 434, 442-443 [2009]).
Defendant's argument that plaintiff failed to explain the more-than-one-year gap in his treatment (see Pommells v Perez, 4 NY3d 566, 572, 574 [2005]) is unpreserved and not properly considered on appeal, as defendant did not raise the issue of the treatment gap in the motion court, where plaintiff might have offered evidence to explain the gap.
While the court's order appears to deny defendant's motion in its entirety, its discussion makes clear that the court found that plaintiff failed to raise an issue of fact whether the scar above his right eyebrow is a "significant disfigurement" within the meaning of the statute. Upon our review of the photograph in the record, we concur (see Hutchinson v Beth Cab Corp., 207 AD2d 283, 283-284 [1994]).

Fernandez v. Niamou


Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for Oumarou Niamou and Odienne
Transport Services Inc., appellants-respondents.
Law Office of Vincent P. Crisci, New York (David Weiser of
counsel), for Doris Lanier and Sharee Lanier, appellants-
respondents.
Pollack, Pollack, Isaac & DeCicco, New York (Jillian Rosen of
counsel), for respondent-appellant.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered July 17, 2008, which, insofar as appealed and cross-appealed from, granted defendants' motion for summary judgment dismissing all of plaintiff's threshold claims under Insurance Law § 5102[d] except her loss of fetus claim, unanimously modified, on the law, to reinstate plaintiff's threshold claims with respect to the permanent consequential limitation of use of a body organ or member and significant limitation of use of a body function or system categories of serious injury within the meaning of Insurance Law § 5102[d], and otherwise affirmed, without costs.
We agree with the motion court that defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law with respect to plaintiff's claim for loss of her fetus, and as a result, that the burden never shifted to plaintiff to raise a triable issue of fact with respect to that claim (cf. Gilphilin v Ware, 205 AD2d 353 [1994]).
Furthermore, defendants made a prima facie showing that plaintiff did not sustain a 90/180-day injury. That plaintiff missed more than 90 days of work is not determinative (see Uddin v Cooper, 32 AD3d 270, 271 [2006], lv denied 8 NY3d 808 [2007]), and no evidence in the record suggested that plaintiff was prevented from performing substantially all of the material acts that constituted her usual and customary daily activities for 90 days during the 180 days following the accident (Ortiz v Ash Leasing, Inc., 63 AD3d 556 [2009]).
With respect to the permanent consequential limitation of use and significant limitation of use categories, there was a contradiction in the reports of defendants' experts. While one expert stated that any changes in plaintiff's lumbar and cervical spines were degenerative, the other expert not only failed to find any degenerative changes, but failed to rule out the possibility that plaintiff did, in fact, sustain a traumatic injury to her neck in the accident. Accordingly, we modify the order.

Colon v. Bernabe


Pollack, Pollack, Isaac & DeCicco, New York (Michael H.
Zhu of counsel), for appellant.
Hardin, Kundla, McKeon & Poletto, New York (Stephen P.
Murray of counsel), for respondents.
Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered November 3, 2008, which, inter alia, granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d), unanimously modified, on the law, to the extent of denying defendants' motion in part and reinstating plaintiff's claims that she sustained a permanent consequential limitation of use of a body organ or member and/or a significant limitation of use of a body function or system, and remanding the matter for a determination of that prong of defendants' motion for summary judgment dismissing the action as against defendant Salem Truck Leasing, Inc. (Salem) and on plaintiff's cross motion to amend the complaint to assert a negligent entrustment claim as against Salem, and otherwise affirmed, without costs.
Defendants established a prima facie entitlement to summary judgment by submitting the affirmed reports of an orthopedic surgeon and a neurologist who, after conducting independent examinations of plaintiff, concluded that plaintiff had full range of motion in her neck, back and upper and lower extremities, and suffered from no neurological disability. Defendants also submitted the affirmed report of a radiologist, who, upon reviewing plaintiff's MRI films and CT scan, concluded that the disc bulges and/or herniations revealed through those tests were consistent with degenerative disc disease and not caused by the automobile accident at issue. Defendants also submitted plaintiff's deposition testimony, where she stated that she returned to work within two or three days of the accident.
Contrary to the determination of the motion court, plaintiff's opposition raised triable issues of fact that she sustained a serious injury. The affidavit of plaintiff's treating chiropractor contains objective, quantitative evidence with respect to diminished range of motion in the cervical and lumbar spine based on testing performed both immediately after the accident and then again, approximately 20 months after the accident. The chiropractor's range of motion findings conflict with those of defendants' expert, who found no restriction in range of motion, and thus, raise an issue of fact as to whether plaintiff sustained a significant limitation in use or permanent consequential limitation of use of her cervical and lumbar spine. Plaintiff's MRIs also showed bulging and herniated discs in the cervical and lumbar spine and the EMG studies revealed radiculopathies. Evidence of range of motion limitations, especially when coupled with positive MRI and EMG test results, are sufficient to defeat summary judgment (see Wadford v Gruz, 35 AD3d 258 [2006]; Brown v Achy, 9 AD3d 30 [2004]).
Plaintiff also submitted sufficient evidence to raise a triable issue of fact as to whether her serious injury was causally related to the accident. In response to the findings of defendants' expert that the disc bulges and/or herniations were consistent with degenerative disease, plaintiff's experts stated, based upon objective medical testing and their physical examinations of plaintiff, who was 22 years old at the time of the accident and had never sustained any injury to her back either before or after the accident, that the injuries were causally related to the accident (see June v Akhtar, 62 AD3d 427 [2009]).
Plaintiff did, however, fail to raise a triable issue of fact with respect to the 90/180-day prong of Insurance Law § 5102(d). Plaintiff's self-serving assertions in her affidavit that her ability to do everyday activities has been significantly limited, are insufficient without any objective medical evidence to substantiate her claims (see Nelson v Distant, 308 AD2d 338, 340 [2003]). Furthermore, plaintiff testified that she returned to work within two or three days of the accident (see Ronda v Friendly Baptist Church, 52 AD3d 440, 441 [2008]).
Having concluded that a portion of plaintiff's claims should be reinstated, the issues of whether the action should be dismissed as against Salem pursuant to the Graves Amendment (49 USC § 30106), and whether plaintiff's cross motion to amend the complaint to assert a negligent entrustment claim as against Salem, become viable. Since the motion court did not make a determination on these issues, they are remanded to that court for a determination in the first instance.

Bojorquez v. Sanchez


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Mead, Hecht, Conklin & Gallagher, LLP [Sara Luca Salvi and
Elizabeth M. Hecht], of counsel), for appellant.
Joseph A. Faraldo, Kew Gardens, N.Y., for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Schack, J.), dated January 30, 2009, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
The defendant made a prima facie showing of his entitlement to judgment as a matter of law (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). However, in opposition to the defendant's motion, the plaintiff submitted, inter alia, an affirmed X-ray report which revealed an avulsion fracture of the left hip, as well as an affirmation from her treating physician stating that he reviewed that X-ray report and concluded that the fracture was caused by the subject accident. This evidence was sufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injury under the fracture category of Insurance Law § 5102(d) as a result of the subject accident (see Gould v Ombrellino, 57 AD3d 608; I Mei Chou v Welsh, 15 AD3d 622; Keevins v Drobbin, 303 AD2d 463). Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.

Layne v. Drouillard


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellants.
Harmon, Linder & Rogowsky, New York, N.Y. (Mitchell
Dranow of counsel), for respondent.

DECISION & ORDER
In an action, inter alia, to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Solomon, J.), dated December 18, 2008, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.
The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants' examining doctors set forth, in their affirmed medical reports, that the plaintiff had a full range of motion in his cervical and lumbar spine based on objective range of motion tests, wherein the numerical findings were compared to what is normal. In addition, the defendants submitted deposition testimony of the plaintiff showing that the plaintiff resumed his duties as a New York City police officer, passed medical and physical examinations, and attended the police academy to become a police officer in another jurisdiction. During this time, the plaintiff engaged in rigorous activities which included running, sit-ups, and push-ups (see Kasim v Defretias, 28 AD3d 611). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.
SANTUCCI, J., LEVENTHAL and LOTT, JJ., concur.

SPOLZINO, J.P., dissents and votes to affirm the following order appealed from with the following memorandum in which ANGIOLILLO, J., concurs:
I disagree. "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324). Where the submissions in support of the motion themselves raise a triable issue of fact, summary judgment must be denied (see Hwa Soon Um v Hoi Ku Yang, 63 AD3d 686; Robinson v Yeager, 62 AD3d 684; Locke v Buksh, 58 AD3d 698, 699). In my view, that is precisely the situation presented here.
The defendants rely in support of their motion on the reports of two physicians who examined the plaintiff on their behalf. Each found that the plaintiff had a normal range of lateral motion in his lumbar spine. They did so, however, on the basis of different factual findings as to the extent of the plaintiff's range of motion and different expert opinions as to what is normal. Dr. Rafiy found that the plaintiff had a lateral range of motion in his lumbar spine of 45 degrees and that 45 degrees was normal. Dr. Zhou found that the plaintiff had a range of motion of 25 degrees in his lumbar spine and that 25 degrees was normal.
Contrary to the majority's conclusion, these reports do not demonstrate the absence of issues of fact. If Dr. Rafiy is correct that the plaintiff's range of motion is 45 degrees and Dr. Zhou is correct that 25 degrees is normal, the defendant has failed to establish that the plaintiff does not have a serious injury. In fact, the defendant's experts agreed only on the conclusion that the plaintiff's range of motion was normal. A conclusory statement that a plaintiff did not sustain a serious injury, however, is insufficient to sustain summary judgment dismissing the complaint for lack of serious injury (see Landman v Sarcona, 63 AD3d 690; Powell v Prego, 59 AD3d 417, 419).
The evidence which the majority cites with respect to the plaintiff's employment and the ability to engage in physical activity which that employment involves may well defeat the plaintiff's claim at trial. On a motion for summary judgment, however, the moving party can prevail only upon establishing its entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). In the absence of proof as to the results of the specific medical examinations to which the plaintiff was subjected and the specific activities in which he engages as a police officer, the defendant has not met that burden here.
As a result, the defendants' motion here was properly denied. I therefore dissent, respectfully.

Mchugh v. Marfoglia


Appeal from an order of the Supreme Court, Erie County (John F. O'Donnell, J.), entered October 29, 2008 in a personal injury action. The order denied the motion of plaintiff seeking partial summary judgment and seeking to dismiss the fourth affirmative defense.

CELLINO & BARNES, P.C., BUFFALO (BRIAN A. GOLDSTEIN OF COUNSEL), FOR PLAINTIFF-APPELLANT.
LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (TIMOTHY R. HEDGES OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the fourth affirmative defense is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedly sustained when the vehicle he was driving was rear-ended by a vehicle driven by defendant Arica L. Marfoglia and owned by defendant A.J. Marfoglia. We agree with plaintiff that Supreme Court erred in denying plaintiff's motion seeking partial summary judgment on the threshold issue whether he sustained a serious injury as a result of the accident under the permanent consequential limitation of use and significant limitation of use categories within the meaning of Insurance Law § 5102 (d) and seeking to dismiss the fourth affirmative defense, which alleges that plaintiff did not sustain a serious injury. Plaintiff met his burden with respect to those two categories by submitting objective evidence that he suffered a disc herniation at C6-C7 that required surgical intervention, and by submitting the affirmation of his treating neurosurgeon who concluded that, based upon his examination and treatment of plaintiff and his review of plaintiff's medical records, plaintiff's injuries were significant, permanent, and causally related to the accident (see LaForte v Tiedemann, 41 AD3d 1191, 1192; see generally Toure v Avis Rent A Car Sys., 98 NY2d 345, 353). Plaintiff also submitted the affirmed report of the neurosurgeon who examined him at defendants' request. That neurosurgeon quantified the degree of loss of range of motion in plaintiff's cervical spine, including a 66% loss of extension and a 50% loss of right rotation, and correlated that loss to the normal range of motion in the relevant areas of plaintiff's cervical spine (see Toure, 98 NY2d at 350; see also Harris v Carella, 42 AD3d 915, 916-917; Strong v ADF Constr. Corp., 41 AD3d 1209, 1210).
We further conclude that defendants failed to raise a triable issue of fact sufficient to defeat the motion with respect to the issue of serious injury or causation. Defendants submitted only an attorney's affirmation and a copy of an alleged surveillance videotape, which they concede was not authenticated and thus was properly disregarded by the court. It is well settled that, "where the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action . . ., and the submission of a hearsay affirmation by counsel alone does not satisfy this requirement" (Zuckerman v City of New York, 49 NY2d 557, 560). Moreover, the neurosurgeon who examined plaintiff at defendants' request concurred with the conclusion of plaintiff's treating neurosurgeon that plaintiff's cervical spine injury and the resulting surgery were causally related to the accident (see LaForte, 41 AD3d at 1192; Ellithorpe v Marion [appeal No. 2], 34 AD3d 1195, 1196).
Finally, we note that the record establishes that defendants have expressly withdrawn their second affirmative defense, concerning the alleged failure of plaintiff to wear his seatbelt, having conceded that it lacks merit.

Autiello v. Cummins


Calendar Date: September 11, 2009
Before: Cardona, P.J., Peters, Lahtinen, Malone Jr. and Stein, JJ.

Horigan, Horigan and Lombardo, P.C., Amsterdam
(James A. Lombardo of counsel), for appellant.
William L. Nikas, Hudson Falls, for respondent.
MEMORANDUM AND ORDER
Malone Jr., J.
Appeal from an order of the Supreme Court (Hall Jr., J.), entered July 15, 2008 in Washington County, which granted plaintiff's motion for partial summary judgment.
In this personal injury action arising out of a motor vehicle collision in September 2003, plaintiff sought partial summary judgment on the issues of defendant's liability and plaintiff having sustained a serious injury pursuant to Insurance Law § 5102 (d). Defendant, while not contesting the issue of liability for the accident, opposed the motion as to serious injury, contending that plaintiff failed to establish that her injury was causally related to the accident. Supreme Court granted plaintiff's motion, prompting this appeal by defendant.
We affirm. As the proponent of the summary judgment motion, plaintiff bore the burden of establishing, as a matter of law, that she suffered a serious injury pursuant to Insurance Law § 5101 (d) and that the injury was causally related to the accident (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Card v Brown, 43 AD3d 594, 595 [2007]). Plaintiff testified that the impact from the collision caused her mouth to strike the steering wheel and plaintiff's medical records indicate that she was experiencing pain in her upper lip area two days after the accident. Plaintiff further submitted the sworn affidavit of Alfred Hollis, her treating dentist, who diagnosed plaintiff as suffering a fractured front tooth that required it to be removed and replaced with an implant. Hollis opined that a metal post, which had been inserted into the tooth in a root canal procedure years prior to the accident, had been driven through the tooth and into the gum tissue causing the tooth to fracture. Hollis concluded that the metal post could have been driven into the gum tissue only by a blunt force trauma and attributed the injury to plaintiff striking the steering wheel with her mouth as a result of the collision. John Turco, another dentist who treated plaintiff for the injury to her tooth, also concluded in a sworn affidavit that she suffered a fractured tooth as the result of the motor vehicle accident. Mindful that a fractured tooth may constitute a serious injury pursuant to Insurance Law § 5102 (d) (see Moffitt v Murray, 2 AD3d 1110, 1111 [2003]; Kennedy v Anthony, 195 AD2d 942, 942-943 [1993]), we conclude that plaintiff's evidence was sufficient to satisfy her burden.
The burden then shifted to defendant to raise a triable issue of fact as to plaintiff's injury through the submission of competent medical evidence (see Horton v Warden, 32 AD3d 570, 572 [2006]). To that end, defendant submitted an unsworn letter from dentist Dean DeLuke, in which DeLuke concluded that there was no evidence in plaintiff's medical records linking the injury to the accident and generally stated that teeth that had been previously treated with root canal therapy were generally more prone to fracture. Insofar as this letter was unsworn, it is of no probative value and is incompetent support for opposition to plaintiff's motion (see Bright v McGowan, 63 AD3d 1239, 1241 [2009]; Tuna v Babendererde, 32 AD3d 574, 576 n [2006]). Moreover, even if the report was properly sworn, DeLuke's conclusory and unsupported assertion as to the cause of plaintiff's injury is insufficient to withstand summary judgment (see Ramos v Howard Indus., Inc., 10 NY3d 218, 224 [2008]; Ann JJ. v Schenectady Assn. for Retarded Citizens, 59 AD3d 772, 773 [2009]).

McClier Corporation v. United States Rebar, Inc.


Lester Schwab Katz & Dwyer, LLP, New York (Ellen M.
Spindler of counsel), for appellant.
Farber Brocks & Zane, LLP, Mineola (Audra S. Zane of
counsel), for Utica First Insurance Company, respondent.
Melito & Adolfsen P.C., New York (Steven I. Lewbel of
counsel), for Eurotech Construction Company and Assurance
Company of America, respondents.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered May 15, 2008, which, in a declaratory judgment action involving whether certain of the plaintiffs are additional insureds under policies issued by defendants-respondents insurers (defendants), insofar as appealed from, granted in part defendants' motions for protective orders and denied plaintiff-appellant insurer's (plaintiff) motion to compel discovery, unanimously affirmed, without costs.
In response to plaintiff's discovery demands, defendants submitted privilege logs that identified each of the documents withheld and set forth a basis for the assertion of a privilege as to each. The motion court then conducted an in camera review of the withheld documents and ruled that most were protected by either the attorney-client privilege (CPLR 3101[b]) or the immunities for attorney work product (CPLR 3101[c]) and materials prepared for litigation (CPLR 3101[d][2]). No basis exists to disturb this ruling. Documents in an insurer's claim file that were prepared for litigation against its insured are immune from disclosure (Grotallio v Soft Drink Leasing Corp., 97 AD2d 383 [1983]), and, while documents prepared in an insurer's ordinary course of business in investigating whether to accept or reject coverage are discoverable (Brooklyn Union Gas Co. v American Home Assur. Co., 23 AD3d 190, 191 [2005]), there is no indication that any such documents are being protected here. We have considered plaintiff's remaining arguments and find unavailing.

Mendieta v 333 Fifth Avenue Association, et al.


Milber Makris Plousadis & Seiden, LLP, Woodbury, N.Y. (Sarah
Ziolkowski and Lorin A. Donnelly of counsel), for third-party
defendant-appellant SPN, Inc.
Gannon Rosenfarb & Moskowitz (Max W. Gershweir, New
York, N.Y. [Jennifer B. Ettenger] of
counsel), for third-party defendant-
appellant Perfume Valley.
Robert A. Cardali & Associates, LLP (Arnold E. DiJoseph,
P.C., New York, N.Y. [Arnold E.
DiJoseph III] of counsel), for plaintiff-
respondent.
Hammill, O'Brien, Croutier, Dempsey & Pender, P.C.,
Syosset, N.Y. (Anton Piotroski of counsel),
for defendants third-party plaintiffs-
respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the third-party defendant SPN, Inc., appeals from so much of an order of the Supreme Court, Kings County (Partnow, J.), dated August 12, 2008, as denied those branches of its motion which were for summary judgment dismissing the plaintiff's complaint in its entirety or, in the alternative, for summary judgment dismissing the cause of action for contractual indemnification in the third-party complaint insofar as asserted against it, and the third-party defendant Perfume Valley appeals, as limited by its brief, from so much of the same order as granted that branch of the cross motion of the defendants third-party plaintiffs which was for summary judgment on the cause of action for contractual indemnification in the third-party complaint insofar as asserted against it, and denied that branch of its motion which was for summary judgment dismissing the cause of action for contractual indemnification in the third-party complaint insofar as asserted against it.
ORDERED that the order is modified, on the law, by (1) deleting the provision thereof granting that branch of the cross motion of the defendants third-party plaintiffs which was for summary judgment on the cause of action for contractual indemnification in the third-party complaint insofar as asserted against Perfume Valley, and substituting therefor a provision denying that branch of the cross motion, (2) deleting the provision thereof denying that branch of Perfume Valley's motion which was for summary judgment dismissing the cause of action for contractual indemnification in the third-party complaint insofar as asserted against it, and substituting therefor a provision granting that branch of its motion, and (3) deleting the provision thereof denying that branch of the motion of the third-party defendant SPN, Inc., which was for summary judgment dismissing the cause of action for contractual indemnification in the third-party complaint insofar as asserted against it, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the third-party defendants, payable by the defendants third-party plaintiffs.
On March 2, 2005, the plaintiff, an employee of the third-party defendant SPN, Inc. (hereinafter SPN), which is a tenant of the defendants 333 Fifth Avenue Associates and Kehdouri Associates (hereinafter together the landlord) attempted to access the elevator in the building by opening the elevator doors with a service key. However, the elevator cab was on another floor and he fell down the elevator shaft, sustaining personal injuries. He commenced the instant action against, among others, the landlord, as owner of the building.
The landlord commenced a third-party action against its tenant and plaintiff's employer, SPN, and another tenant, Perfume Valley, alleging, inter alia, a cause of action for contractual indemnification, based upon a clause of an "indemnity agreement" which the landlord required those tenants to sign when it provided them with a service key to the elevator.
The indemnity agreement with respect to the elevator key was an agreement separate and apart from the parties' leases. The clause at issue stated that "[t]enant shall indemnify and hold harmless Landlord and Landlord's agents from and against any and all claims made against Landlord and his agents arising from the Tenants' possession and/or use of the elevator key." The agreement did not include any requirement to procure insurance, and did not refer to the tenant's lease. It contained a severability clause, stating that "[i]n the event that any portion of this agreement is deemed in contravention of existing State or local law, then only that portion will be deemed to be invalid, with the remainder in full force and effect."
In his deposition, the landlord's principal Lawrence Khedouri testified that the reason he had tenants sign this separate indemnification agreement with respect to the elevator key was that he was aware that the elevator key could be used to open the elevator doors when the elevator was not on the floor, and "[t]hey had to be careful." He further testified that when he had a tenant execute the indemnity agreement and gave the tenant the key, he told the tenant not to use the key because "there was a danger that the car might not be there." Therefore, we conclude that the plaintiff's accident was foreseeable, and was, in fact, foreseen by the landlord.
The Supreme Court, in the order appealed from, determined that the clause of the indemnity agreement requiring the tenant to indemnify the landlord was enforceable pursuant to General Obligations Law § 5-321. We disagree.
General Obligations Law § 5-321 provides:
"Every covenant, agreement or understanding in or in connection with or collateral to any lease of real property exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor, his agents, servants, or employees, in the operation or maintenance of the demised premises or the real property containing the demised premises shall be deemed to be void as against public policy and wholly unenforceable."
This provision originally was enacted in 1937 (L. 1937, ch 907), as Real Property Law former § 234, to supersede the decision of the Court of Appeals in Krishenbaum v General Outdoor Adv. Co. (258 NY 489), which found that a clause of the parties' lease which stated that the landlord was not responsible to the tenant for damages to the tenant caused by the landlord's negligence was valid and enforceable. Pursuant to this legislation, a landlord could no longer claim that it was not liable to the tenant for the landlord's own negligence based upon a provision in the lease (see Jones v Railroad Fed. Sav. & Loan Assn., 264 App Div 725).
In Hogeland v Sibley, Lindsay & Curr Co. (42 NY2d 153), the Court of Appeals distinguished between exculpatory clauses "whereby lessors are excused from direct liability for otherwise valid claims which might be brought against them by others" which would be unenforceable under General Obligations Law § 5-321, and clauses whereby "the parties are allocating the risk of liability to third parties between themselves, essentially through the employment of insurance" (Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d at 159). The Court found that the latter type of provisions were enforceable because they required the parties to maintain insurance for the benefit of the public.
In Great N. Ins. Co. v Interior Constr. Corp. (7 NY3d 412), the Court of Appeals reaffirmed that "a commercial lease negotiated between two sophisticated parties who included a broad indemnification provision, coupled with an insurance procurement requirement" is enforceable (Great N. Ins. Co. v Interior Constr. Corp., 7 NY3d at 419). The holding of the case is summarized therein as follows: "Where, as here, a lessor and lessee freely enter into an indemnification agreement whereby they use insurance to allocate the risk of liability to third parties between themselves, General Obligations Law § 5-321 does not prohibit liability" (Great N. Ins. Co. v Interior Constr. Corp., 7 NY3d at 419).
However, if the purpose of the indemnity clause is to exempt the landlord from liability to the victim — in this case the tenants and/or their employees — for its own negligence, it violates General Obligations Law § 5-321 (see Castano v Zee-Jay Realty Co., 55 AD3d 770).
Under the circumstances of this case, it is clear that the indemnity clause was not an agreement to use insurance to allocate the risk of liability to third parties between landlord and tenant, but, rather, exempted the landlord from liability to the tenant for its own negligence in maintaining what it knew to be an unsafe condition on the premises.
The severability provision does not save the indemnification clause by allowing for partial indemnification for damages not incurred as a result of the landlord's negligence. The clause did not provide that the tenant's obligation was limited to "the fullest extent permitted by applicable law" (Dutton v Charles Pankow Builders, 296 AD2d at 322), which "contemplates partial indemnification" limited to the indemnitor's own negligence. Further, General Obligations Law § 5-321 explicitly states that a covenant which violates its provisions "shall be deemed to be void as against public policy and wholly unenforceable" (emphasis supplied). Therefore, the indemnity clause at issue is unenforceable.
As previously noted, it appears that the plaintiff's accident was entirely foreseeable, and there is at least a triable issue of fact as to whether the plaintiff acted in a manner that was of such a character as to sever the causal connection between the owners' alleged negligence and the plaintiff's injury. Accordingly, the Supreme Court properly denied that branch of the motion of SPN which was for summary judgment dismissing the plaintiff's complaint (see Pabon v Nouveau El. Indus., Inc., 49 AD3d 702, 703; Gilbert v Kingsbrook Jewish Ctr., 4 AD3d 392, 392-393; see also Derdiarian v Felix Contr. Corp., 51 NY2d 308, 312).
The parties' remaining contentions either are without merit or need not be reached in light of our determination.
SPOLZINO, J.P., ANGIOLILLO, CHAMBERS and LOTT, JJ., concur.

Ciminello v  Sullivan



Gruenberg & Kelly, P.C., Ronkonkoma, N.Y. (Guy Gruenberg of
counsel), for appellant-respondent.
John G. Griffin, Dix Hills, N.Y. (Susan R. Nudelman of
counsel), for respondent-appellant.
Breen & Clancy, Hauppauge, N.Y. (Michael T. Clancy and
Anne Marie Caradonna of counsel), for
respondents Brian C. Sullivan and
Gerard E. Sullivan.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated March 17, 2008, as granted that branch of the motion of the defendants Brian C. Sullivan and Gerard E. Sullivan which was for summary judgment dismissing the complaint insofar as asserted against Gerard E. Sullivan and denied, as academic, that branch of his cross motion which was for summary judgment on the issue of liability, and the defendant Robert Hartford cross-appeals, as limited by his brief, from so much of the same order as, sua sponte, in effect, granted the plaintiff leave to serve and file an amended complaint, and granted that branch of the plaintiff's cross motion which was for leave to amend the bill of particulars.
ORDERED that on the Court's own motion, the defendant Robert Hartford's notice of cross appeal from so much of the order as, sua sponte, in effect, granted the plaintiff leave to serve and file an amended complaint is treated as an application for leave to cross appeal from that portion of the order, and leave to cross appeal is granted (see CPLR 5701[c]); and it is further,
ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
In September 2005 the plaintiff, George A. Ciminello, commenced this action to recover damages for injuries allegedly sustained after he was struck by a cup thrown from a moving vehicle owned by the defendant Gerard E. Sullivan and operated by the defendant Brian C. Sullivan (hereinafter together the Sullivan defendants), in which the defendant Robert Hartford was a passenger. The single cause of action interposed against the defendants was to recover damages for negligence. After the completion of discovery and the filing of the note of issue, the Sullivan defendants moved for summary judgment dismissing the complaint insofar as asserted against them and the plaintiff cross-moved for summary judgment on the issue of liability and for leave to amend the bill of particulars.
The Supreme Court granted that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against Gerard E. Sullivan, but denied the branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against Brian C. Sullivan. The court denied that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability, finding that the injuries resulted from intentional rather than negligent conduct. The court, sua sponte, in effect, granted the plaintiff leave to serve and file an amended complaint. Finally, the court granted that branch of the plaintiff's cross motion which was for leave to amend the bill of particulars.
The Supreme Court properly granted the branch of the Sullivan defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against Gerard E. Sullivan. To establish liability pursuant to Vehicle and Traffic Law § 388(1), the plaintiff must show negligence in the use or operation of the vehicle, and that the negligence was a cause of the injury (see Argentina v Emery World Wide Delivery Corp., 93 NY2d 554, 562). Here, the plaintiff's injury was caused by the throwing of the cup and did not arise out of the use or operation of the vehicle (see Levitt v Peluso, 168 Misc 2d 239, 245-246; see also Empire Ins. Co. v Schleissman, 306 AD2d 512; Progressive Cas. Ins. Co. v Yodice, 276 AD2d 540; Eagle Ins. Co. v Butts, 269 AD2d 558).
The Supreme Court properly denied that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability. Based upon the evidence submitted to the Supreme Court, the plaintiff failed to establish his prima facie entitlement to judgment as a matter of law on the cause of action alleging negligence against Brian C. Sullivan and Robert Hartford (see Thomas v Fayee, 302 AD2d 451). Once intentional offensive contact has been established, the actor is liable for battery, not negligence (see Siegell v Herricks Union Free School Dist., 7 AD3d 607, 609; Yasuna v Big V Supermarkets, 282 AD2d 744; Panzella v Burns, 169 AD2d 824, 825).
Under the circumstances of this case, the Supreme Court providently exercised its discretion by, sua sponte, in effect, granting the plaintiff leave to serve and file an amended complaint (see Bennardi & Assoc., Inc. v Ramsons One, Inc., 8 AD3d 948; see also Barraza v Sambade, 212 AD2d 655). Moreover, the Supreme Court providently exercised its discretion in granting the branch of the plaintiff's cross motion which was for leave to amend the bill of particulars (see Ito v 324 E. 9th St. Corp., 49 AD3d 816; Grande v Peteroy, 39 AD3d 590; Singh v Rosenberg, 32 AD3d 840).
In light of our determination, we need not address the plaintiff's remaining contention (see Parochial Bus. Sys. v Board of Educ. Of City of N.Y., 60 NY2d 539). Hartford's remaining contention on his cross appeal is not properly before us, as it is improperly raised for the first time on the cross appeal (see Abrams v Abrams, 57 AD3d 809; Padro v Bertelsman Music Group, 278 AD2d 61).
SKELOS, J.P., FLORIO, LEVENTHAL and HALL, JJ., concur.

Lopez v. American United Transportation, Inc.


Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for appellants.
Alexander J. Wulwick, New York, for respondent.
Order, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered January 6, 2009, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
The reports submitted by defendants' examining physician sufficiently demonstrated that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d), and supported the theory that his injuries were related to preexisting degenerative conditions rather than to the accident, proffering a detailed analysis of the preexisting condition and its degenerative nature. In response, plaintiff's expert failed to satisfactorily rebut this conclusion, neglecting even to mention, let alone explain, why he ruled out degenerative changes, thus rendering his opinion speculative (Montgomery v Pena, 19 AD3d 288, 290 [2005]) and insufficient to raise an issue of fact as to a causal connection between accident and injury (Pommells v Perez, 4 NY3d 566, 579-580 [2005]). In particular, plaintiff's expert failed to explain how the alleged serious injuries to plaintiff's right rotator cuff and lumbar spine might not have been related to his age, morbid obesity or prior occupation as a furniture installer (see Chan v Garcia, 24 AD3d 197 [2005]).
Plaintiff concedes that he failed to raise an issue of fact concerning his inability to perform substantially all of his routine daily activities for at least 90 of the first 180 days following the accident. There is no competent medical evidence on his behalf that he was unable to perform such activities (see Prestol v McKissock, 50 AD3d 600 [2008]).

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