Dear Coverage Pointers Subscribers:

 This issue is being sent from a lovely bed and breakfast in the heart of the Napa Valley.  Fortunately, wireless is available so we can send this issue to our loyal subscribers. 

 Traveling from sea to shining sea, I am delighted to be Program Chair for the DRI ICPS in NYC next week. There is still time to register:

 DRI Insurance Coverage and Practice Symposium (ICPS)

 When?                                   Next week.  November 18-19. 

Where?                                 Sheraton Towers in NYC.

Who's attending?               Over 400 registered and over 100 of the attendees are in-house claims professionals and attorneys employed by the insurance industry or in-house counsel.

How do I register?             Register now at www.dri.org

What's being offered:       The program offers terrific cutting edge offerings from nationally recognized speakers: 

  • A Colorful Landscape: A Bird's-Eye View from the Regulators
  • The Leaves Are Full of Color: Don't Get Black and Blue over Bad Faith Set-Ups
  • Medicare Secondary Payer Act: Falling Prey
  • The Autumn of Insurers' Discontent: Long Tails and Large Verdicts-What to Do When
  • You Need a Coverage Chart to Map Out Your Exposure
  • Fall Without Cover: Coverage Issues in the Era of Catastrophic Recalls
  • Autumn Winds: Insurance Coverage in a Virtual World
  • Preparing Company Witnesses for Deposition: Don't Fall for the Other Lawyer's Tricks
  • A Cacophony of Colors: The Impact of Deductibles and SIRs When Multiple Policies Are Triggered
  • Good Faith/Bad Faith: An Overview of Conduct That Causes Allegations of Bad Faith Under the Property Policy
  • Leaves Between the Pages: ILC Chairs Look Back 50 Years and Peer into the Crystal Ball
  • Others People's Money, Cumis Counsel, Cold Winds and the Trouble with Tripartites
  • Emerging Issues Involving Employment Practices Liability Insurance
  • Tales from the Chinese Drywall Coverage Wars and the Implications for Other Construction Defect Claims
  • Withering Leaves: Acting Ethically When You Fear Your Client Has Not  

Kudos to Audrey Seeley

We were proud to be witness to Audrey's award as one of the elite "Forty Under 40" this past week.  This prestigious honor is given to 40 men and women from the Western New York Community, under the age of 40, who were recognized for their records of professional success and community involvement. Well deserved. 

 
From Audrey Seeley:
 
I had a great week!  I was honored to receive in Buffalo the 40 Under Forty Award which recognizes 40 professionals every year who are 40 or younger for their professional and community service achievements.  It is a great honor to receive this highly coveted award by young professionals in the Buffalo area.  My class consisted of professionals in the not-for profit sector, a neurosurgeon, a member of the Buffalo Philharmonic, a radio broadcaster, multiple business people who have created, developed, and grown amazing businesses, as well as attorneys that work at private firms and for large corporations.
 
I am also in the midst of teaching the four property insurance classes within the insurance law course at UB Law School.  We have a bright group of aspiring attorneys.  Although for the first time I was actually approached and asked whether you can make A LOT of money practicing in insurance coverage because "it seems pretty dry."  Oh boy...
 
Next Wednesday - Friday, Dan, Steve, and I will be in NYC for DRI's Insurance Coverage and Practice Symposium.  It is never too late to sign up and walk-ins are not only welcome but encouraged.  At this point there are over 400 people registered to attend which is a phenomenal number.  If you need any information feel free to email me at [email protected]
Audrey
What's a Brooklyn Boy Doing Living in Buffalo?

By the way, if you haven't been to Buffalo and want to see why a kid from Brooklyn came here for law school and never left, click here.

 A Century Ago

 As we honor our veterans this week, we look back to "progress" that took place 100 years ago.
 

New York Times

November 12, 1910

ELY'S FLIGHT FROM CRUISER
Navy Department Will Test the Value of Aeroplanes in Warfare

The proposed aeroplane flight by Eugene Ely of San Francisco from the deck of a naval vessel will be observed by the Navy Department as an actual test of the value of aeroplanes in naval warfare. The point which will be determined will be the practicability of launching an airship from a scout cruiser at sea.

The trial will be made on the scout cruiser Birmingham by Ely is a Curtiss biplane.  The machine will be placed on the vessel in Hampton Roads and taken up Chesapeake Bay for quite a distance when the airship will be sent up.

The President previously has refused permission to aviators for use of naval vessels for airship tests.

Editor's Note:  The test was conducted on November 14.  The plane plunged downward as soon as it cleared the 83-foot platform runway; and the aircraft wheels dipped into the water before rising. Ely's goggles were covered with spray, and the aviator promptly landed on a beach rather than circling the harbor and landing at the Norfolk Navy Yard as planned. Two months later, on January 18, 1911, Ely landed his Curtiss pusher airplane on a platform on the cruiser USS Pennsylvania which was anchored in San Francisco, the first successful shipboard landing of an aircraft. This flight was also the first ever using a tailhook system.  Ely was killed in an airplane accident the following year.

 

From Steve Peiper:

Once again, nothing of interest in the realm of first party.  However, please take a moment to review the First and Second Department's efforts to define the definition of the term "construction' as used in the context of Labor Law 240(1) and/or 241(6).  In addition, we provide several cases that review how the scope of an indemnity provision is analyzed by the courts.  We'll be back in two weeks; hopefully, with some first party cases to review.  Cheers until then.

Steve

 

The Moose, the Flying Squirrel and Mediation

Alex Anderson died in October.  While his childhood friend Jay Ward received most of the credit, Anderson was the creator of the best cartoon show ever created, bar none, the Rocky and Bullwinkle Show.  Any fan of the moose and flying squirrel will remember that at the end of each episode, the narrator William Conrad (of radio Gunsmoke fame) would introduce the next episode with a pun-delicious title like:  Explosive Situation or Don't Make it Worse-It's Badenov, or Bullwinkle Buys a Fence or Pickets Charge or my favorite: You've Got Me in Stitches or Suture Self. In honor of the late Mr. Anderson, we'll call this:

Shooting Yourself in the Foot or A Trip to Krakatoa

Recently, I was asked to represent an insurer-client in a coverage matter involving an issue that was somewhat unsettled in the courts of this state.  The issue involved an underlying claim that had mid five-figure value (if all went downhill) and that offered a number of opportunities for overall compromise, once the coverage questions were clarified.  As fate would have it, the insurer on the other side was also a client and therefore I could not handle the matter as an advocate for one carrier over the other.

There was a solution, though, that ended up working well.

We suggested that he contact his adversary carrier and the two of them decide whether (a) they each want to invest in the cost of the prosecution or defense of a declaratory judgment action which may lead to success or defeat in this case.  The two should then consider the consequences of success, which could in the long run, be more frightening than the cost of losing the argument:

  • The matter involved the breadth of coverage to be afforded to an additional insured in a construction-related accident;
  • These insurers provide policies to a greater number of sub-contractors than contractors;
  • If the court ruled one way or the other the precedent established could dramatically and adversely impact both the insurer (and those similarly situated) for years to come. 

In other words, winning might be equivalent to shooting oneself in the foot.

The collective answer was not to litigate the matter and risk establishing compelling adverse precedent but find another economically viable way to resolve the coverage issue, while, at the same time, trying to bring the underlying lawsuit to conclusion.  The parties agreed to mediation and I served as the mediator.  We resolved the underlying lawsuit along with the coverage issues economically and without either side risking precedent.  

Insurance Coverage Arbitration & Mediation
Resolving the Complex Without the Substantial Costs of Litigation
 

There are times when insurers wish to resolve complex insurance coverage disputes without the expense and costs of trial and without the risk of potentially adverse judicial precedent.  We have encouraged the mediation and/or arbitration of complex insurance coverage claims and our office can assist insurers and insureds in bringing reasoned resolution to coverage disputes.

I have and can serve as a mediator to help resolve complex insurance coverage disputes (and often, the parallel underlying claims).  Why spend the money and the time to litigate these questions when resolution by mediation or arbitration can bring closure to hotly contested matters in relatively short order for substantially reduced costs?

I have has been handling complex insurance coverage matters for over 30 years.  For over 20+ years,  I have served as an Adjunct Professor of Insurance Law at the Buffalo Law School, serve as an expert witness in insurance coverage matters throughout the United States, Canada and in the London market and have arbitration and mediation certification. 

If we can help you as a mediator, contact me at [email protected] or 716.849.8942.

 

One Hundred Years Ago Today: 

New York Times

November 12, 1910

NO TRACE OF MARIE SMITH

Soldiers, Police, and Schoolboys Search Vainly for Asbury Park Child.

Asbury Park, N.J.  Soldiers, police and schoolboys aided in the search for little Marie Smith today without any trace of the child being alive.

Mrs. Clark Davidson, who lives near the home of the Smiths, now recalls that she saw Marie near her home about 11 o'clock on Wednesday morning.  That brings the child much nearer the home of her parents than any one else recalled.  It takes her, too, safely past the rubbish dump near which she was also seen that morning, hurrying home from school.

Deal Lake was dragged, by order of the policy today, but no trace of the child was found.  The search of the countryside was systematic, all the local National Guardsmen and schoolboys working under a system that left no point uncovered. 

Some gypsies are now said to have been seen in the vicinity on Wednesday and all gypsy camps are to be searched by the police

Editor's Note:  An arrest was made of an African-American male a couple of days later, when Marie Smith's body was found.  While in jail, Thomas Williams, a/k/a Black Diamond was almost lynched by a maddening crowd.  The New York Times reported that after a preliminary police examination, his story was "considerably riddled" and "circumstances point much stronger to him being the murderer than they did when he was arrested."

 The Asbury Park police were convinced that Williams was the murderer and the local press contained a headline:  Supreme Effort to Get Confession from Negro. Only three men believe in Williams' innocence, Sheriff Clarence Hetrick, the County Coroner and the man who employed Marie Smith's father as his chauffeur. 

 Smith convinced the police that he was committing another crime elsewhere at the time so he could not have strangled Marie Smith.

 The three men hired the Burns Detective Agency and they suspected Frank Heidemann, a German national who left Europe after molesting a young girl.  The Burns Agency conducted a creative investigation which included staging a fake murder and having an agent "befriend" Heidemann for four months until he confessed.  Heidemann was convicted and was put to death in the electric chair the following May.

 

Headlines in This Week's Issue:

KOHANE'S COVERAGE CORNER
Dan D. Kohane

[email protected]

  • The "You" Question, Revisited
  • Yeshiva and Its Carrier Had Right to Pursue DJ Action Against Contractor's Carrier for Defense Costs

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

  • Admitted 2? Month Backpacking Excursion Through 10 European Countries Does Not Help Support Claim of Serious Injury to Spine
  • No Need to Consider Plaintiffs' Opposing Papers
  • Plaintiff's Opposing Papers Raise a Triable Issue of Fact
  • Contemporaneous and Recent Examinations Defeat Summary Judgment
  • Bill of Particulars Alleges Aggravation/Exacerbation of Pre-Existing Degenerative Conditions
  • Failure to Opine as to Causation Defeats Defendants' Motion
  • Range-of-Motion Findings Must Be Compared to What Is Normal
  • Defendant Fails to Defeat Plaintiffs' 90/180-Day Claim
  • Conclusion That Limitations Are Self-Imposed Requires Objective Medical Evidence

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

ARBITRATION

  • Durable Medical Equipment Issued One Week After Chiropractic Care Not Medically Necessary
  • Failure to Address Findings of Diagnostic Testing Fatal to Denial
  • Report That Obscures Findings; Fails to Address Diagnostic Testing; Uses MMI Language Not Persuasive.
  • Concurrent Care Defense Fails Due To Lack of Affidavit and Treating Records Show Different Type of Treatment Rendered
  • Rare Decision on Ambulance Reimbursement
  • Endpoint In Treatment As To Particular Specialty Not Violative of Hobby.  

LITIGATION 

  • Summary Judgment Partially Denied Due To Sufficient Affidavit Preserving Medical Necessity Defense
  • Insurer Granted Summary Judgment As Plaintiff Failed to Submit Sufficient Rebutting Affidavit On Lack of Medical Necessity
  • Plaintiff Given 90 Days To File Application With Comp Board Or Case Dismissed
  • Plaintiff Given 90 Days To File Application With Comp Board Or Case Dismissed

PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper

[email protected]

  • Contract Means What It Says:  No Indemnity for NYC Unless the Loss Arose from the Duties Imposed Under the Contract
  • The Act of Leaving One's Employment is Considered to Arise From the Operations of the Employer, Therefore the Owner's Claim for Contractual Indemnification was Appropriate
  • Contractual Indemnity For One's Own Negligence Is Permissible So Long as There is No Statutory Prohibition
  • "Relation-Back" Doctrine is Inapplicable Where the Plaintiff Cannot Establish That the Prospective Defendant Knew, or Should Have Known, That the Action Should Have Been Commenced Against Her
  • Stacking Steel Pipes at a Storage Yard IS NOT "Construction" Under Labor §§ 240(1) and/or 241(6)
  • Interior Decorating IS NOT Construction, Demolition or Excavating Work Under Labor Law § 241(6)

FIJAL'S FEDERAL FOCUS
Katherine A. Fijal

[email protected]

  • Interpreting Form MCS-90 and The Motor Carrier Act
  • California Law - An Insurers Duty to Defend

JEN'S GEMS
Jennifer A. Ehman

[email protected] 

  • Courts Dismisses Counterclaim Asserting Entitlement to Reformation of Insurance Policy and Grants Summary Judgment Based on Prior Knowledge Exclusion
  • No Coverage Where Policy Unambiguously Excludes Coverage for Any Employee

EARL'S PEARLS
Earl K. Cantwell

[email protected]

REVISITING THE "GOVERNMENT CONTRACTOR DEFENSE"

 That's all for now.  We are still tallying the results of last issue's contest.

 See you in New York.  Save travels.

 Dan

 

Dan D. Kohane
Hurwitz & Fine, P.C.
1300 Liberty Building
Buffalo, NY 14202    
Phone: 716.849.8942
Fax:      716.855.0874
E-Mail:  [email protected]
H&F Website:  www.hurwitzfine.com

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
The Liening Tower of Perley
Earl’s Pearls
Across Borders

KOHANE’S COVERAGE CORNER
Dan D. Kohane

[email protected]

11/4/10         Bovis Lend Lease LMB, Inc. v. Travelers Property Cas. Co.
Appellate Division, First Department
The “You” Question, Revisited
You know the “You” question, don’t you?  Whispered about in dark of the night by coverage lawyers everywhere, the question surrounds the obligation of an additional insured to give notice of an accident or occurrence to a liability carrier.  The brief version of the argument sounds something like this, with reference to the ISO CG 00 01 form:

  • The term “You” in the policy applies only to the “Named Insured shown in the Declarations and any other person or organization qualifying as a Named Insured under the policy.”
  • Under Section IV (2.) of the policy, the condition of notice provides that “You must see to it that we are notified as soon as practicable of an “occurrence” …”
  • Since an additional insured, is not a “You,” it has no obligation to notify the insurer of an accident.

While a few lower court decisions applying a literalist approach to the policy have so held, appellate court decisions have generally concluded that an additional insured has an inherent obligation to provide prompt notice.  That was the decision in this First Department case where the court held that as “a purported additional insured under a commercial liability policy, Bovis was required to give defendant notice of the underlying claim as soon as practicable. Absent a valid excuse, the failure to satisfy this notice requirement, which is a condition precedent to coverage, vitiates the policy.”

11/3/10         Yeshiva Ohr Torah Community School v. Zurich Am. Ins. Co.
Appellate Division, Second Department
Yeshiva and Its Carrier Had Right to Pursue DJ Action Against Contractor’s Carrier for Defense Costs

The underlying lawsuit was a personal injury action involving a plaintiff named Benedicto who sued the Yeshiva.  Below, the Yeshiva and GuideOne, its liability carrier (as subrogee) sued Flik International and then sought to amend its complaint to add a cause of action against Flik International seeking to be indemnified for legal fees incurred in defending the lawsuit. Not only did the lower court deny the application to amend the complaint but it granted summary judgment to Flik declaring that Flik had no obligations to defend or indemnify the Yeshiva or reimburse the Yeshiva for costs incurred in defending the personal injury action. The lower court based its determinations on a post-mediation agreement among the parties to the underlying action, concluding that the terms of that agreement barred such relief.
The Second Department reversed, holding that the post-mediation agreement clearly and unambiguously stated that nothing therein would preclude Yeshiva, or GuideOne, as Yeshiva's subrogee, from pursuing the recovery of those attorneys' fees in a declaratory judgment action.
The appellate court held that it was appropriate to pursue a declaratory judgment action and seek reimbursement with respect to attorneys' fees incurred in defending the underlying personal injury action. Whether Flik was negligent or not does not determine whether Flike and its carrier had an obligation to defend the Yeshiva.  The duty to defend is based on the allegations in the complaint, not the proof of negligence.

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


11/4/10         Dean v. Ahn Ja Jin
Appellate Division, Third Department
Admitted 2½ Month Backpacking Excursion Through 10 European Countries Does Not Help Support Claim of Serious Injury to Spine

Defendants met their burden by submitting plaintiff’s medical records which showed only subjective complaints of pain with any objective findings.  A contemporaneous examination revealed full cervical ROM and an x-ray taken more than two years before the accident established that the straightening of the cervical spine seen in an MRI predated the accident.  In addition, the orthopedic IME did not reveal any objective evidence of permanency to a cervical sprain deemed to be resolved.  Finally, plaintiff admitted during her deposition that she returned to school a few days after the accident and spent 2½ months backpacking through 10 European countries.  This was more than sufficient to support defendants’ motion.

In opposition, plaintiff relied on the medical reports of a neurologist who opined that plaintiff has a permanent straightening of the lordotic curve causally related to the accident.  However, the neurologist failed to indicate what objective tests he used to arrive at that conclusion other than the MRI, the results of which were shown to be pre-existing by the previously mentioned x-rays.  In affirming the trial court’s dismissal of the complaint, the appellate court noted that the neurologist’s conclusory statements did nothing more than “parrot the statutory language” and were insufficient to raise a question of fact.

11/03/10       Bitterman v. Dennis
Appellate Division, Second Department


11/03/10       Drobecker v. Lawrence
Appellate Division, Second Department

No Need to Consider Plaintiffs’ Opposing Papers
In decisions without any specific facts, the court finds that the defendants failed to meet their prima facie burdens of showing that the plaintiffs did not sustain a serious injury.  As such, the sufficiency of plaintiffs’ opposing papers need not be even considered.

11/03/10       Jones v. Hoaue
Appellate Division, Second Department

Plaintiff’s Opposing Papers Raise a Triable Issue of Fact
No facts here either, except to say that the defendants did meet their burden but that the plaintiff raised an issue of fact with regard to a causally related serious injury to her cervical and/or lumbar spine.

11/03/10       Nsiah-Ababio v. Hunter
Appellate Division, Second Department

Contemporaneous and Recent Examinations Defeat Summary Judgment
While the defendants met their initial burden, the plaintiff defeated their motion with his treating physician’s reports noting significant limitations in the cervical and lumbar regions both during contemporaneous and recent examinations.

11/03/10       Rabinowitz v. Kahl
Appellate Division, Second Department

Bill of Particulars Alleges Aggravation/Exacerbation of Pre-Existing Degenerative Conditions
These defendants also failed to meet their prima facie burden.  Their examining orthopedic surgeon found significant ROM limitations in the plaintiff’s cervical and lumbar spine and he concluded that she might have suffered an aggravation and/or exacerbation of pre-existing degenerative conditions.  However, because the plaintiff alleged precisely that in her bill of particulars, the defendants’ expert’s findings did not establish that the limitations were not caused by the accident.  Once again, the defendants’ motion fails and the court does not look at plaintiff’s opposing papers.

11/03/10       Catana v. Hussain
Appellate Division, Second Department

Failure to Opine as to Causation Defeats Defendants’ Motion
Defendants relied on the affirmed report of an otolaryngologist who examined the plaintiff and determined that he was “essentially” deaf in his right ear and that the condition was permanent.  He did not opine, however, as to whether the condition was caused by the accident resulting in the determination by the court that defendants failed to show that it was not causally related.

11/03/10       Frasca-Nathans v. Nugent
Appellate Division, Second Department

Range-of-Motion Findings Must Be Compared to What Is Normal
And here, the defendants’ examining orthopedist surgeon failed to compare the ROM findings of the plaintiff’s right knee with what is normal, thus defeating the defendants’ own motion and making unnecessary the consideration of the plaintiff’s opposing papers.

11/03/10       Galofaro v. Wylie
Appellate Division, Second Department

Defendant Fails to Defeat Plaintiffs’ 90/180-Day Claim
During discovery, the plaintiffs alleged injury under the 90/180-day category in their bill of particulars, amended bill of particulars, and supplemental bill of particulars, and yet the defendant failed to establish in his motion papers that plaintiffs did not sustain such a medically determined injury.  As such, he failed to meet his burden and the court did not consider the sufficiency of the plaintiffs’ opposing papers.

11/03/10       Granovskiy v. Zarbaliyev
Appellate Division, Second Department

Conclusion That Limitations Are Self-Imposed Requires Objective Medical Evidence
Clearly, November 3rd was not a good day for defendants in the Second Department.  In yet another affirmance of the trial court and denial for defendants’ summary judgment motions, these defendants’ examining orthopedic surgeon noted significant ROM limitations for both plaintiffs but concluded that those limitations were self-imposed.  He did not, however, substantiate his conclusions with any objective medical evidence, so the defendants failed to meet their burden and, once again, the court did not need to consider the plaintiffs’ opposing papers.

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

ARBITRATION
11/8/10         Elite Medical Supply v. Respondent
Arbitrator Thomas J. McCorry, Erie County
Durable Medical Equipment Issued One Week After Chiropractic Care Not Medically Necessary

The eligible injured person (“EIP”) was involved in a March 14, 2010, roll over accident resulting in injuries to the neck and both shoulders.  The EIP began treating with a chiropractor two days after the accident.  Less than 10 days post accident, the treating chiropractor prescribed an LSO Brace and TENS Unit.  The prescription for this durable medical equipment indicated that they were to provide muscle relief and stabilize the low back while healing.  [When was the EIP diagnosed with a back injury?]

The insurer denied the durable medical equipment based upon a peer review conducted by Sean Higgins, D.C.  Mr. Higgins opined that the medical records demonstrated that the EIP demonstrated significant symptom reduction with treatments.  Further, as the equipment was issued only one week after chiropractic care began it was not recommended under Medicare guidelines as this equipment is used for chronic pain that is present for at least three months.  The assigned arbitrator found this rationale to be persuasive and applying a common sense approach to the case upheld the insurer’s denial.

11/5/10         Cameron Huckell, MD v. Respondent
Arbitrator Kent L. Benziger, Erie County
Failure to Address Findings of Diagnostic Testing Fatal to Denial

The Applicant sought payment for an orthopedic evaluation conducted as a result of an October 28, 2008, motor vehicle accident.  The EIP complained of neck, mid and low back pain as well as bilateral shoulder and wrist pain.  On December 9, 2008, a cervical MRI revealed central disc herniations at C4/5 and C6/7 and a left paracentral C5/6 disc herniation. 

On January 9, 2009, the EIP came under Dr. Huckell’s care where he did not recommend surgical intervention at that time.  Thereafter, the EIP underwent pain management treatment for his complaints.

The insurer denied the orthopedic treatment based upon the independent medical examination (“IME”) conducted by Dr. Andrew Miller.  Dr. Miller’s objective findings were positive with regard to cervical spine range of motion and muscle spasm.  Dr. Miller opined that the EIP had resolved cervical strain/sprain with no further need for orthopedic care.

The assigned arbitrator determined Dr. Miller’s IME report was unpersuasive.  The arbitrator pointed out that Dr. Miller had positive findings and a cervical MRI demonstrating multiple disc herniations.  Yet, the report failed to even mention the import, if any, of the cervical MRI.  The assigned arbitrator aptly held that whether it is a treating physician or an independent physician they must incorporate the findings of diagnostic tests to obtain a complete and accurate representation of the EIP’s condition.

11/2/10         Applicant v. Respondent
Arbitrator Kent L. Benziger, Erie County
Report That Obscures Findings; Fails to Address Diagnostic Testing; Uses MMI Language Not Persuasive

The EIP was involved in a September 30, 2004, accident and the treating chiropractor sought reimbursement for bills spanning a three time frame.  The EIP refused treatment at the accident and her primary care physician referred her to the Applicant.  The EIP complained, after two weeks of care, of headaches, intermittent right arm pain, right sternum pain, and right breast pain.  The EIP had been involved in a 1997 accident resulting in cervical spine pain whereafter she treated with Applicant since 2002 until two months before this 2004 accident.

The insurer denied the chiropractic treatment based upon an IME conducted by Anthony Magnano, DC conducted in 2005.  The EIP complained of left upper extremity and low back pain radiating into her lower extremities.  Upon examination, the EIP’s cervical spine range of motion was normal.  The bulk of the orthopedic tests were also negative.  Despite this the EIP did complain of pain upon performing some tests.  Mr. Magnano opined that the EIP had obtained maximum and full benefit from her chiropractic care. 

The assigned arbitrator determined that Mr. Magnano’s report was unpersuasive.  This is because his report was written in a manner that downplayed and obscured positive findings.  Further, his range of motion testing was well out of balance with that testing performed by the treating chiropractor and neurosurgeon.  Likewise, there was no discussion regarding the positive MRI findings.  Finally, the report used verbiage that was akin to maximum medical improvement that is an invalid denial basis under Hobby v. CNA.

11/2/10         Jennifer Pellingra LMT v. Respondent
Arbitrator Kent L. Benziger, Erie County
Concurrent Care Defense Fails Due To Lack of Affidavit and Treating Records Show Different Type of Treatment Rendered

The insurer denied massage therapy upon the theory of concurrent care.  The denial was not upheld as a careful review of the therapist’s records compared to the chiropractor’s records revealed that each specialty was performing a different function.  It is noteworthy that the assigned arbitrator determined that in a concurrent care defense the insurer must submit an affidavit from a person with relevant training and/or educational background to assess whether the claims are concurrent care.

11/1/10         Rural/Metro Medical Services v. Respondent
Arbitrator Kent L. Benziger, Erie County
Rare Decision on Ambulance Reimbursement

The sole issue in the arbitration was the proper fee schedule for ambulance services.  The Workers’ Compensation Fee Schedule does not contain a specific schedule for ambulance services.  Rather, Regulation 83, Appendix 17-C provides that the maximum permission charge for such a service is the local prevailing charge.  The Insurance Department further clarified this rule by stating that it is the local prevailing charge for the geographic area where the service is rendered.

The insurer attempted to deny the charge on the ground that it did not comport with the reimbursement guidelines for Medicare/Medicaid.

The assigned arbitrator rejected this argument on the basis that the Medicare/Medicaid guidelines are not applicable to the No-Fault regulations.  This is because the Medicare/Medicaid guidelines are written to disperse the cost for this social welfare program.  Thus, the reimbursement rate may very well be below the local prevailing charge.

10/29/10       Cichocki & Cichocki v. Respondent
Arbitrator Thomas J. McCorry, Erie County
Endpoint In Treatment As To Particular Specialty Not Violative of Hobby

The EIP came under the Applicant’s chiropractic care as a result of a September 9, 2006, motor vehicle accident.  The care was denied by the insurer based upon an IME conducted by Louis Marconi, DC.  The assigned arbitrator determined that the IME report was persuasive.  Further, the assigned arbitrator noted that while the Applicant argued the report essentially provided a maximum medical improvement opinion the arbitrator determined that he did not interpret the opinion as such.  Rather, the opinion was that no further medical treatment in the chiropractic specialty was needed and not a general opinion that no further medical treatment in any specialty was necessary.  Thus, the denial was upheld.

LITIGATION

11/8/10         Vinings Spinal Diagnostic, PC a/a/o Athina Papantoniou v. Geico Gen. Ins. Co.
Appellate Term, Second Department
Summary Judgment Partially Denied Due To Sufficient Affidavit Preserving Medical Necessity Defense

The insurer’s summary judgment motion should have been partially denied as the insurer’s affidavit from an employee established that the denial of claim was timely mailed in accordance with standard office practices and procedures. 

11/8/10         MIA Acupuncture, PC a/a/o Exantus Constant v. GEICO Ins. Co.
Appellate Term, Second Department
Insurer Granted Summary Judgment As Plaintiff Failed to Submit Sufficient Rebutting Affidavit On Lack of Medical Necessity

The insurer’s cross-motion for summary judgment should have been granted as it submitted a sufficient affidavit demonstrating timely mailing of the denial.  Moreover, the plaintiff failed to submit an affidavit that meaningfully referred to and rebut the conclusions in the IME report.

11/8/10         BY, MD, PC v. American Transit Ins. Co.
Appellate Term, Second Department
Plaintiff Given 90 Days To File Application With Comp Board Or Case Dismissed
The parties’ motions for summary judgment should be held in abeyance pending a prompt application the Workers’ Compensation Board for a determination of the parties’ rights.  The court further held that if plaintiff failed to file proof with the court of an application within 90 days from the date of the order then the court must deny the plaintiff’s motion and grant the insurer’s cross-motion.

11/8/10         Active Imaging a/a/o Zorea Limor v. Progressive Northeastern Ins. Co.
Appellate Term, Second Department
Plaintiff Given 90 Days To File Application With Comp Board Or Case Dismissed
The insurer’s failure on summary judgment to annex to its moving papers a copy of all of the medical records listed by the peer reviewer as being reviewed was not required.  The medical records the peer reviewer looked at are not part of the insurer’s prima facie showing and need not be attached to prevail on summary judgment.

PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper

[email protected]


11/04/10       Ramos v The City of New York
Appellate Division, First Department
Contract Means What It Says:  No Indemnity for NYC Unless the Loss Arose from the Duties Imposed Under the Contract
Plaintiff in this case was employed as a security guard by third-party defendant Tristar.  In that capacity, plaintiff was responsible for patrolling the premises owned by the City of New York, checking bags, and ensuring that only authorized people were permitted inside of the premises.  During the course of his shift, someone from New York City directed him to turn off a heater/fan unit at the premises.  During the course of this activity, plaintiff sustained an electrical shock.

Thereafter, he commenced the instant lawsuit.  The City of New York immediately commenced a third-party action against plaintiff’s employer, Tristar, seeking contractual indemnity.  However, the contract at issue only provided indemnity for New York where the loss arose out of the negligence of Tristar in its performance of duties under the Contract.  Because the loss at issue did not arise out of Tristar’s contractual duties, New York was not entitled to be indemnified for the claim.

11/03/10       Bailey v Macy's East, Inc.
Appellate Division, Second Department
The Act of Leaving One’s Employment is Considered to Arise From the Operations of the Employer, Therefore the Owner’s Claim for Contractual Indemnification was Appropriate
Plaintiff was employed by third-party defendant Birger in the “fur sales department” at a Macy’s Department Store.  While in the course of walking to her car at the conclusion of her shift, Ms. Bailey slipped and fell on a walkway which extended from the employee entrance to the store.  As a result, Ms. Birger commenced instant action against Macy’s. 

Macy’s immediately commended a third-party action against Birger seeking contractual indemnification pursuant to a lease agreement whereby Birger agreed to indemnify Macy’s for losses which arose from, or involved, Birger’s employees.  As the Second Department concluded the act of walking to one’s car after work naturally arose from the operations of Birger, Macy’s claim for contractual indemnification was granted. 

11/03/10       Cortes v Town of Brookhaven
Appellate Division, Second Department
Contractual Indemnity For One’s Own Negligence Is Permissible So Long as There is No Statutory Prohibition
Plaintiff was injured when the truck he was operating overturned while at defendant’s landfill facility.  As a result, he commenced the instant action against Brookhaven. 

In response, Brookhaven commenced a third-party action against DF Stone and the Town of Hempstead.  Apparently, DF Stone was engaged to transport certain items from Hempstead’s landfill to Brookhaven’s landfill.  In any event, per the terms of the contract, Brookhaven sought contractual indemnification from DF Stone. 

At the conclusion of trial, Brookhaven was found to be 40% liable for plaintiff’s injuries (plaintiff was deemed 60% responsible for the incident).  As a result, DF Stone opposed Brookhaven’s contractual indemnity claim on the basis that Brookhaven could not be indemnified for its own negligence.

The Appellate Division disagreed, and held that absent a specific statutory prohibition (i.e., GOL § 5-322.1 [construction contracts] and GOL § 5-321 [commercial leases]) parties were free to contract for indemnification for their own negligence.  Here the contract provided indemnity for “any and all claims.”  Given the breadth of this agreement, the Second Department ruled that DF Stone had agreed to indemnify Brookhaven for all losses, including those occasioned due to Brookhaven’s own negligence. 

11/03/10       Lopez v Wyckoff Heights Medical Center
Appellate Division, Second Department
“Relation-Back” Doctrine is Inapplicable Where the Plaintiff Cannot Establish That the Prospective Defendant Knew, or Should Have Known, That the Action Should Have Been Commenced Against Her
Plaintiff’s second Amended Complaint named defendant Yvon Nazaire as a party defendant for the first time.  Unfortunately, by the time the action named Ms. Nazaire the statute of limitations had expired. 

In opposing defendant Nazaire’s motion to dismiss, plaintiff alleges that the action was timely pursuant to the rules of the “relation-back doctrine.”  In review, the Second Department noted that the “relation-back doctrine” requires the plaintiff to establish three factors before it can be utilized to avoid the implication of a statutory time bar.  First, the plaintiff must establish that the newly asserted claim arose from the same transaction, conduct or occurrence.  Secondly, plaintiff must establish that the prospective defendant was united in interest with the previously named defendants. Finally, plaintiff must establish that the prospective defendant “knew or should have known that, but for a mistake...as to the identity of the proper party, that action would have been brought against him as well.” 

In the current instance, the evidence submitted established that defendant Nazaire was not working, nor otherwise in contact, with the other party defendants.  As such, there is no evidence that she would have had knowledge of the potential claim.  In turn, Nazaire’s motion to dismiss was granted. 

11/03/10       Pirog v. 5433 Preston Court, LLC
Appellate Division, Second Department
Stacking Steel Pipes at a Storage Yard IS NOT “Construction” Under Labor §§ 240(1) and/or 241(6)
Plaintiff injured his hand in the course of stacking steel pipes, and commenced the current action against the owner of the property.  As the stacking of pipes is not “construction” there was no liability under Labor Law § 240(1) or Labor § 241(6).  Moreover, as defendant had no supervision, direction or control over the activity, it follows that there was likewise no liability under Labor Law § 200/Common Law Negligence. 

10/28/10       Rajkumar v Budd Contracting Corporation
Appellate Division, First Department
Interior Decorating IS NOT Construction, Demolition or Excavating Work Under Labor Law § 241(6)
Plaintiff, Rajkumar, was injured in the course of hanging a 300 pound mirror in the lobby of a hotel. In reversing the trial court, the First Department held that the act of hanging a mirror does not constitute construction, demolition or excavation as is required to trigger the protections of Labor Law § 241(6). 

Even if the act did qualify under Section 241(6), the First Department noted that the plaintiff had failed to establish the violation of a section of the New York Industrial Code.  Specifically, plaintiff’s reliance upon a section discussing passageways was misplaced as the lobby where plaintiff was working did not constitute a passageway in the Court’s view.  Further, plaintiff’s allegation that he tripped over dirt and debris was likewise disproved where the record established that he fell over brown construction paper that had been purposely used to cover and protect the existing tile floor.

FIJAL’S FEDERAL FOCUS
Katherine A. Fijal

[email protected]

11/01/10      Canal Insurance Co. v. Bernetta Coleman
United States District Court for the Fifth Circuit
Interpreting Form MCS-90 and The Motor Carrier Act
This is an insurance dispute arising from a truck accident.  The relevant facts are undisputed.  Briggs a truck driver and employee of P.S. Transport, was backing a truck into his driveway when he collided with a Toyota Camry occupied by Defendant Coleman and her husband.  At the time of the accident Briggs was returning home from work.  He was driving the truck “bobtail” (the truck had no trailer attached) when he collided with the Colemans.

The sole issue on appeal is whether P.S. Transport’s automotive insurance policy, more specifically the policy’s federally mandated MCS-90 endorsement covers the accident between Briggs and the Colemans.

The Colemans sued Briggs and P.S. Transport in state court in Mississippi.  They assert claims of negligence against Briggs and seek to recover from P.S. Transport under the doctrine of respondeat superior.  In response, Canal filed its declaratory judgment action in the United States District Court for the Northern District of Mississippi against Briggs, P.S. Transport and the Colemans.

Pursuant to the terms of the Canal automotive policy issued to P.S. Transport the insurer will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance, or use . . . of an owned automobile.  Based on this policy language the court determined it was not an “owned automobile” within the meaning of the policy and did not fall within the plain terms of the policy’s coverage because P.S. Transport did not own the truck.  Instead, the truck was under a “lease and employment” agreement- Briggs owned the truck but leased it to P.S. Transport as part of his employment contract.

Although the P.S. Transport policy did not explicitly cover Briggs’ truck, it did contain a federally mandated policy endorsement, i.e., MCS-90.  The purpose of MCS-90 is to assure compliance with federal minimum levels of financial responsibility for motor carriers.  The MCS-90 endorsement must be attached to any liability policy issued to for-hire motor carriers operating motor vehicles transporting property in interstate commerce. The endorsement creates a surety ship which obligates and insurer to pay certain judgments against the insured arising from interstate commerce activities, even though the insurance contract would have otherwise excluded coverage. 

The district court granted summary judgment to Canal.  In reviewing the district court’s decision the Fifth Circuit looked to the plain terms of MCS-90.  The endorsement provides:
In consideration of the premium stated in the policy to which this endorsement is attached, the insurer agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Section 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or not each motor vehicle is specifically described in the policy and whether or not such negligence occurs on any route or in any territory authorized to be served by the insured or elsewhere.

The court summarized stating that the endorsement requires Canal to pay any final judgment against P.S. Transport for public liability resulting from the negligent use of “motor vehicles subject to the financial responsibility requirements of Section 29 and 30 of the Motor Carrier Act of 1980”.

In determining whether the Briggs’ vehicle was subject to the Acts financial responsibility requirements the court analyzed Motor Carrier Act §30. After reading the plain text of MCS-90 and §30 the court concluded that the endorsement covers vehicles only when they are presently engaged in the transportation of property in interstate commerce. The court reasoned that MCS-90 applies to vehicles subject to §30 of the Motor Carrier Act.  Section 30 requires minimum levels of financial responsibility, which must be sufficient to satisfy liability for the transportation of property in interstate commerce.  As such, the MCS-90 is a way of conforming to statutory minimum financial responsibility requirements and because those requirements exist to satisfy liability for the transportation or property, it follows that the MCS-90 must cover liabilities for the transportation of property.  The court concluded that nothing in MCS-90’s text indicates that it cover other kinds of liabilities, i.e., liabilities incurred outside of the transportation of property.

The court also pointed out that the result may be different if Coleman had not explicitly conceded that Brigg’s liability was not for the transportation of property.  If that was not the case the Fifth Circuit stated that the district court would have needed to ask what the phrase “transportation of property” means.  The court noted that the term “transportation” as defined in 49 U.S.C. §13102, is interpreted broadly and it may have been arguable that Briggs’ conduct at the time of the accident could be termed transportation of property.  However, because the district court accepted Coleman’s stipulation that it was not, the Fifth Circuit did not address that question.

11/05/10       Hudson Insurance Co. v. Colony Insurance Co.
United States District Court for the Ninth Circuit
California Law – An Insurers Duty to Defend
NFL Properties sued All Authentic for allegedly selling counterfeit National Football League Jerseys.  Hudson Insurance defended All Authentic in the NFL Action under its insurance policy issued to All Authentic.  Colony Insurance denied coverage.

Hudson defended All Authentic in the NFL Action, incurring defense costs in excess of $900,000.  The NFL action ultimately settled and Hudson initiated a declaratory judgment action against Colony seeking equitable contribution from Colony for Hudson’s costs of defending. The district court granted Hudson’s motion for summary judgment concluding that “by alleging that the insured infringed “Steel Curtain” [on Pittsburg Steelers Jersey], the NFL complaint set forth a claim for slogan infringement that was potentially covered by the Colony policy.  The Ninth Circuit affirmed.

The Colony policy contained an exclusion providing that the policy did not apply to “Personal and advertising injury” arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights.  However, this exclusion does not apply to infringement, in your advertisement, copyright, trade dress or slogan. 

On Appeal, Colony first argued that the district court should be reversed because no such claim of slogan infringement was made in the complaint and California law precludes a court or insured from speculating about unpled claims to manufacture coverage.  The Ninth Circuit disagreed stating that under California law the insurer’s duty is not measured by the technical cause of action pleaded in the underlying third-party complaint, but rather by the potential for liability under the policy’s coverage as revealed by the facts alleged in the complaint or otherwise known to the insurer.  The facts alleged in the NFL complaint state that All Authentic sold a “Steel Curtain Limited Edition Steelers Jersey” on its website, which reads “Steel Curtain” across the back and bears the numbers of four Pittsburg Steelers players.  The district court stated and the Ninth Circuit agreed that a fair reading of the NFL complaint reveals that “Steel Curtain” is used to promote fan loyalty to the Steelers.  The district court concluded that this potentially stated a claim for slogan infringement because a “slogan” is a “brief attention-getting phrase used in advertising or promotion”.

Colony next argued that the court should not find potential liability for slogan infringement because NFL Properties and it “powerhouse international law firm” must have consciously chose not to advance a claim for slogan infringement, which they were clearly aware of.  The court found no merit to this argument finding that the technical label on a cause of action does not dictate the duty to defend whether the claimed caused of action was omitted out of negligence or “for strategic adversarial reasons” – it only matter whether the facts alleged or otherwise known by the insurer suggest potential liability or whether they do not.

Finally, Colony argued that even if the NFL complaint stated a potential slogan infringement claim, the NFL disclaimed any rights to the slogan in its complaint and therefore, could not have pursued an infringement claim.  Essentially, Colony argued that the district court imposed a duty to defend based on the existence of a possible claim that, as pleaded, could not be brought as a matter of law.   Again, the court found not merit to this argument stating that the absence of an element of a properly pleaded cause of action is of no moment in determining the duty to defend.

Accordingly, the court held that the district court correctly concluded there was a duty to defend based on a potential slogan infringement claim.  Because the NFL complaint potentially stated a cause of action for slogan infringement, Colony had a duty to defend All Authentic in the NFL action and Hudson is entitled to equitable contribution.

JEN’S GEMS
Jennifer A. Ehman

[email protected]

10/25/10       Commerce & Indus. Ins. Co. v. Gun Hill Mgt. Inc.
Supreme Court, New York County
Courts Dismisses Counterclaim Asserting Entitlement to Reformation of Insurance Policy and Grants Summary Judgment Based on Prior Knowledge Exclusion

This action arises out of injuries sustained by an infant who ingested lead paint while residing in an apartment managed by defendant.  In 2006, the infant brought an action against defendant and provided service on the Secretary of State.   When defendant failed to appear, the infant never moved for a default judgment and eventually the action was administratively dismissed.    Thereafter, in 2009, the infant recommenced the lawsuit.   

Plaintiff issued a Pollution Legal Liability Real Estate Policy to Langsam Property Services Corp. (“Langsam”) for the period from June 30, 2002 through June 30, 2007 and then issued a renewal policy for the period from June 30, 2007 through June 30, 2012.  These policies provided coverage for claims first made against the insured, and reported to the plaintiff, during the policy period.  Interestingly, defendant was only named as an insured on the renewal. 

Thereafter, this action was brought by plaintiff.  In a counterclaim, defendant asserted that it entered into a contract with Langsam, in which it agreed to manage the premises at issue.  Pursuant to this contract, Langsam agreed to acquire insurance for defendant.  Accordingly, defendant alleged that the failure to name it on the policy was a unilateral mistake that plaintiff should rectify by reforming the initial policy to name defendant as an insured retroactively. 

In reply, plaintiff asserted that the counterclaim was time barred by application of the statute of limitations, since the initial policy went into effect no later than June 30, 2002, and defendant did bring this counterclaim until April 2010.  In addition, plaintiff argued that, even if the policy was reformed, the initial policy only covered claims first made against the insured and reported to plaintiff in writing during the policy period. 

Defendant then asserted that it had two years from the date of discovery to request reformation.  Further, even if it was not entitled to reformation, since the second lawsuit was filed in 2009, and reported thereafter, it was entitled to coverage under the renewal. 

In reply, plaintiff pointed to the prior knowledge/non-disclosure exclusion contained in the renewal. 

In considering all the arguments, the court granted plaintiff’s motion to dismiss the counterclaim noting that the burden upon a party seeking reformation is a heavy one since it is presumed that a deliberately prepared and executed written instrument accurately reflects the true intentions of the parties.  Further, the court held that the statute of limitations for reformation based on mistake is six years.  Accrual of the cause of action is six years from date of mistake, or two years from discovery, assuming the party seeking reformation can establish the due diligence required to toll the statute.  According to the court, as defendant received first notice of the claim in 2006, due diligence would mandate, at that time, that defendant seek a copy of the insurance policy that Langsam was contractually obligated to acquire on defendant’s behalf.  There was no evidence that defendant demanded a copy.  In addition, the court granted plaintiff’s motion for summary judgment as the renewal policy, to which defendant was an insured, excluded coverage for any preexisting claim of which the named insured had knowledge at the time the policy became effective. 

10/22/10       Essex Ins. Co. v. Barillaro
Supreme Court, Queens County
No Coverage Where Policy Unambiguously Excludes Coverage for Any Employee

On December 7, 2005, Joseph Barillaro (“Barillaro”) sustained injuries caused by a collapsing trench at a jobsite.  At the time of the incident, Barillaro was performing plumbing work.  Over a year later, Barillaro brought an action against the jobsite’s owner and general contractor.  Thereafter, in December 2008, the owner and general contractor commenced a third-party action against DMP Contracting Corp. (“DMP”), the subcontractor allegedly responsible for excavation work on the project. 

Plaintiff, DMP’s insurer, denied coverage citing late notice of occurrence and a provision which excluded coverage for bodily injury sustained by “any contractor, self-employed contractor, and/or subcontractor, or any employee, leased worker, temporary worker or volunteer help of same.”  Plaintiff then brought this action to confirm its denial.

In deciding plaintiff’s motion for summary judgment, the court held that despite the three year delay in providing notice of occurrence, the affidavit of DMP’s president stating that the company did not learn of the incident until December 2008, created a triable issue of fact.  However, the court held this did not preclude summary judgment as plaintiff established that the exclusion applied in this particular case.  The court found no merit in defendant’s argument that the exclusion only applied to contractors and subcontractors hired by DMP itself.  According to the court, the exclusion unambiguously applied to any employee, and the exclusion was not subject to a different reasonable interpretation.

EARL’S PEARLS
Earl K. Cantwell

[email protected]

REVISITING THE “GOVERNMENT CONTRACTOR DEFENSE”


In 1988, the United States Supreme Court ruled that there is a federal government contractor immunity defense (“GCI”) that preempts state law and shields federal government contractors from liability.  In Boyle v. United Technologies Corp., 487 U.S. 500 (1988), the Supreme Court established a    three part test for the CGI defense, which originally applied only to military equipment.  In essence, a contractor could not be held liable for design defects in military equipment where the government approved “reasonably precise” specifications, the equipment conformed to those specifications, and the supplier warned the government about potential dangers in using the equipment. 

This GCI defense was revisited in the recent case of In Re Katrina Canal Breaches Litigation v. Washington Group International, Inc., 2010 U.S. App. LEXIS 19145 (5th Cir. September 14, 2010).  In this case, which arose from levee failures during Hurricane Katrina, the Fifth Circuit ruled that the government  provided the contractor with general and “imprecise specifications” as to required excavation work and, thus, the contractor did not have the benefit of the GCI immunity or defense.

In Katrina, the plaintiffs sued contractor Washington Group International, Inc. for negligence in cleaning up a hazardous waste site in New Orleans.  The project included excavation and backfill, and plaintiffs claimed that improper compaction of the excavated areas caused two levees to fail during Hurricane Katrina.  The Fifth Circuit found several factors that rendered the contract specifications only “general and imprecise” as opposed to “reasonably precise”. 

The Corps of Engineers specifications did not indicate the type of backfill to be used and did not dictate standards for compaction density.  To the contrary, the contract stated that no compaction testing was required.  Since the backfilling and compaction instructions were general, much was left to the discretion of the defendant concerning compaction, and the GCI defense did not protect the exercise of that discretion.  Although the contract specifications were generated with close participation by the Corps of Engineers, much discretion was left to the contractor as to what was acceptable backfill and compaction.  Therefore, the defendant was not entitled to claim GCI for its exercise of discretion in choosing the composition of the material, or the methods and degree of compaction. 

The lessons of Katrina are that there is a federal government contractor immunity which might be asserted with respect to design claims arising from federal government contracts.  Originally, the GCI defense was available only for military equipment purchases, however, the doctrine is being expanded to general government contract procurement.  In addition, the doctrine originally applied to military equipment and products while current cases are attempting to extend the defense and immunity to cases such as Katrina which involve a mix of product supply and performance of services.

ACROSS BORDERS
Courtesy of the FDCC Website
www.thefederation.org
10/28/10       Mladineo v. Schmidt, et al
Mississippi Supreme Court
The "Duty to Read" and "Imputed Knowledge" Doctrines are Substantive Rules of Law and an Insured Is Deemed to Understand the Terms of the Policy Regardless of Its Actual Understanding of Its Coverage
 Homeowners bought a home in Ocean Springs, Mississippi four months before Hurricane Katrina struck the Gulf Coast. When they purchased the home, they requested "full protection" and purchased a "hurricane policy." They alleged that they were told that the policy would cover all wind and water damage from a named storm. They did not read their policy. The policy contained an exclusion for any damage caused by water, water-borne material, or flooding. The home was severely damaged by the hurricane. Their claim was denied because the damage to their home was caused by water. The homeowners brought suit for negligence, negligent misrepresentation, breach of contract, breach of implied duty of good faith and fair dealing, and bad faith. Two years into the litigation, the defense raised the "duty-to-read" and "imputed knowledge" doctrines. It was ruled that these doctrines were well settled principles of Mississippi law, and as such, were not affirmative defenses. The claim of waiver for these defenses was denied. The Supreme Court opined that "if the insured had executed their duty to read the policy, they would have noticed that the policy did not cover the things the assumed 'hurricane ' policies would cover." This would have corrected any misrepresentation or lack of understanding of the policy. The summary judgment was affirmed on all counts dismissing the claim, except the count of negligence against the agent and the agency. That count was remanded to the trial court to determine if the representations made breached a professional duty and proximately caused damage to the insured.
Submitted by: James B. Thompson Jr. (Thompson Goodis Thompson Groseclose Richardson and Miller PA)

REPORTED DECISIONS
Bovis Lend Lease LMB, Inc. v. Travelers Property Casualty Company of America

Newman Myers Kreines Gross Harris, P.C., New York (Olivia
M. Gross and Howard Altman of counsel), for appellants.
Lazare Potter & Giacovas LLP, New York (Jeremy M. Sokop
of counsel), for respondent.
Order, Supreme Court, New York County (Paul G. Feinman, J.), entered August 20, 2009, which, to the extent appealed from as limited by the briefs, granted defendant's cross motion for summary judgment declaring no duty to defend or indemnify plaintiff Bovis in an underlying personal injury action, unanimously affirmed, with costs.
As a purported additional insured under a commercial liability policy, Bovis was required to give defendant notice of the underlying claim as soon as practicable. Absent a valid excuse, the failure to satisfy this notice requirement, which is a condition precedent to coverage, vitiates the policy (Sec. Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 440 [1972]). Here, defendant properly denied coverage inasmuch as plaintiff's May 2006 notice was not given to defendant until nine months after the claim accrued.

Dean v. Ahn Ja Jin

Calendar Date: September 16, 2010
Before: Spain, J.P., Rose, Kavanagh, McCarthy and Egan Jr., JJ.

George D. Patte Jr., Ithaca (Edward E. Kopko, Ithaca,
of counsel), for appellant.
Costello, Cooney & Fearon, P.L.L.C., Syracuse
(Jennifer L. Nuhfer of counsel), for respondents.
MEMORANDUM AND ORDER
Spain, J.P.
Appeal from an order of the Supreme Court (Mulvey, J.), entered June 24, 2009 in Tompkins County, which granted defendants' motion for summary judgment dismissing the complaint.
In this no-fault action, plaintiff claims to have suffered a serious injury to her cervical spine as defined by Insurance Law § 5102 (d) as a result of a September 2004 motor vehicle accident. Following discovery, defendants successfully moved for summary judgment dismissing the complaint. On plaintiff's appeal, we now affirm.
Initially, we agree with Supreme Court that defendants met their initial burden of demonstrating that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Licygiewicz v Stearns, 61 AD3d 1254, 1255 [2009]; Tubbs v Pallone, 45 AD3d 959, 960 [2007], lv denied 10 NY3d 702 [2008]; Baker v Thorpe, 43 AD3d 535, 536 [2007]). Specifically, plaintiff's medical records contain only subjective complaints of pain which, on their own, do not qualify as a serious injury under Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]; Tuna v Babendererde, 32 AD3d 574, 575 [2006]). A physical examination immediately after the accident revealed a painless range of motion in plaintiff's neck. The only significant abnormality shown by X ray and MRI records is straightening of the cervical spine. However, an X ray predating the accident by more than two years revealed that this was a preexisting condition, as opposed to an affliction related to the 2004 accident. Further, an independent medical examination report of orthopedist Farouq Al-Khalidi, who examined plaintiff on July 15, 2008, indicated that plaintiff's cervical spine showed a full range of motion in all planes, noted that plaintiff's cervical symptoms appeared to have been resolved and concluded that there was "no objective evidence of any residual impairment of function of the neck attributable to [the] accident." Finally, plaintiff's deposition testimony acknowledged that she returned to school and work a few days after the accident, and that she has traveled extensively since the accident, including a 2½-month backpacking excursion through 10 European countries.
As this evidence is patently sufficient to make a prima facie showing that plaintiff suffered no Insurance Law § 5102 (d) serious injuries as a result of the accident, the burden shifted to plaintiff to "raise a material issue of triable fact on each of the categories of claimed serious injury through the use of competent medical evidence and diagnostic tests" (Tuna v Babendererde, 32 AD3d at 576-577; see Franchini v Palmieri, 1 NY3d 536, 537 [2003]). Here, plaintiff alleges that triable issues of fact exist as to whether she suffered 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]). "[W]hether a limitation of use or function is 'significant' or 'consequential' (i.e., important) relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part" (Toure v Avis Rent A Car Sys., 98 NY2d at 353 [internal quotation marks and citations omitted]; see Seymour v Roe, 301 AD2d 991, 996 [2003]).
Plaintiff relies upon the medical reports of neurologist Barry Pollack who concluded that plaintiff suffers from a permanent straightening of the lordotic curve of the cervical spine and permanent limitation of cervical range as the result of posttraumatic cervical arthritis directly resulting from the accident. However, Pollack failed to identify the objective tests he utilized to reach his findings other than the aforementioned MRI results — which are consistent with X rays of plaintiff taken prior to the accident. Indeed, Pollack's "conclusory statements that [plaintiff] has a consequential and significant limitation of the use of her [neck] merely parrot the statutory language" and, as such, are insufficient to raise a question of fact as to the seriousness of plaintiff's injuries (Licygiewicz v Stearns, 61 AD3d at 1255; see Wilber v Breen, 25 AD3d 836, 836-837 [2006]; June v Gonet, 298 AD2d 811, 812 [2002]).
Finally, we find no merit to plaintiff's contention that she was at all prejudiced by any personal bias by the independent medical examiner.

Yeshiva Ohr Torah Community School, Inc v. Zurich American Insurance

Simon Lesser, P.C., New York, N.Y. (Eleftherios Kravaris, Renee
Simon Lesser, and Leonard F. Lesser of counsel), for appellants.
Gordon & Silber, P.C., New York, N.Y. (Jon D. Lichtenstein of
counsel), for respondent.

DECISION & ORDER
In an action, inter alia, for declaratory relief, the plaintiffs appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Queens County (Cullen, J.), entered March 23, 2009, as, upon joining GuideOne Speciality Mutual Insurance Company, as subrogee of Yeshiva Ohr Torah Community School, Inc., as a party plaintiff, denied that branch of the motion of the plaintiff Yeshiva Ohr Torah Community School, Inc., which was for leave to amend the complaint to add a cause of action against the defendant Flik International Corp. for contractual indemnification with respect to attorneys' fees incurred in defending an underlying personal injury action entitled Benedicto v Yeshiva Ohr Torah Community School, Inc., commenced in the Supreme Court, Queens County, under Index No. 11768/04 and, upon searching the record, awarded summary judgment to the defendant Flik International Corp. declaring that it is not obligated to defend Yeshiva Ohr Torah Community School, Inc., in the underlying action or reimburse GuideOne Specialty Mutual Insurance Company, as subrogee of Yeshiva Ohr Torah Community School, Inc., for expenses which that plaintiff incurred in providing a defense to Yeshiva Ohr Torah Community School, Inc., in the underlying action, and (2) so much of an order of the same court entered June 17, 2009, as denied that branch of the motion of GuideOne Specialty Mutual Insurance Company, as subrogee of Yeshiva Ohr Torah Community School, Inc., made jointly with Yeshiva Ohr Torah Community School, Inc., which was for leave to amend the complaint to add a cause of action against the defendant Flik International Corp. for contractual indemnification, denied that branch of the motion of Yeshiva Ohr Torah Community School, Inc., made jointly with GuideOne Specialty Mutual Insurance Company, as subrogee of Yeshiva Ohr Torah Community School, Inc., which was, in effect, for leave to renew that branch of the motion of Yeshiva Ohr Torah Community School, Inc., which was for that relief, and denied that branch of the plaintiffs' motion which was for leave to amend the complaint to add a cause of action against the defendant Flik International Corp. for a judgment declaring that they are entitled to contractual indemnification with respect to attorneys' fees incurred in defending the underlying personal injury action.
ORDERED that the appeal by the plaintiff GuideOne Speciality Mutual Insurance Company, as subrogee of Yeshiva Ohr Torah Community School, Inc., from so much of the order entered March 23, 2009, as denied that branch of the motion of Yeshiva Ohr Torah Community School, Inc., which was for leave to amend the complaint to add a cause of action against the defendant Flik International Corp. for contractual indemnification with respect to attorneys' fees incurred in defending the underlying personal injury action is dismissed, as GuideOne Speciality Mutual Insurance Company, as subrogee of Yeshiva Ohr Torah Community School, Inc., is not aggrieved by that portion of the order (see CPLR 5511); and it is further,
ORDERED that the order entered March 23, 2009, is modified, on the law, by deleting the provision thereof searching the record and awarding summary judgment to the defendant Flik International Corp. declaring that it is not obligated to defend Yeshiva Ohr Torah Community School, Inc., in the underlying action, or to reimburse GuideOne Specialty Mutual Insurance Company, as subrogee of Yeshiva Ohr Torah Community School, Inc., for expenses incurred in providing a defense to Yeshiva Ohr Torah Community School, Inc., in the underlying action; as so modified, the order entered March 23, 2009, is affirmed insofar as appealed from by Yeshiva Ohr Torah Community School, Inc., without costs or disbursements; and it is further,
ORDERED that the order entered June 17, 2009, is modified, on the law, by deleting the provision thereof denying that branch of the plaintiffs' motion which was for leave to amend the complaint to add a cause of action against the defendant Flik International Corp. for a judgment declaring that they are entitled to contractual indemnification with respect to attorneys' fees incurred in defending the underlying personal injury action, and substituting therefor a provision granting that branch of the plaintiffs' motion; as so modified, the order entered June 17, 2009, is affirmed insofar as appealed from, without costs or disbursements.
In an order entered March 23, 2009, the Supreme Court denied that branch of the motion of Yeshiva Ohr Torah Community School, Inc. (hereinafter Yeshiva), which, upon joining GuideOne Speciality Mutual Insurance Company, as subrogee of Yeshiva Ohr Torah Community School, Inc. (hereinafter GuideOne), as a party plaintiff, was for leave to amend the complaint, in the form set forth in a first proposed amended complaint, to add a cause of action against the defendant Flik International Corp. (hereinafter Flik) for contractual indemnification with respect to attorneys' fees incurred in defending the underlying action. The Supreme Court also searched the record and awarded summary judgment to Flik declaring that it is not obligated to defend Yeshiva in the underlying action, or reimburse GuideOne for expenses it incurred in providing a defense to Yeshiva in the underlying action. The Supreme Court based its determinations on a post-mediation agreement among the parties to the underlying action, concluding that the terms of that agreement barred such relief. However, contrary to the Supreme Court's conclusion, the post-mediation agreement clearly and unambiguously stated that nothing therein would preclude Yeshiva, or GuideOne, as Yeshiva's subrogee, from pursuing the recovery of those attorneys' fees in a declaratory judgment action (see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162). Accordingly, the Supreme Court should not have searched the record and awarded summary judgment in favor of Flik.
Nevertheless, the Supreme Court providently exercised its discretion in denying that branch of Yeshiva's motion which was for leave to amend the complaint to add a cause of action for contractual indemnification, in the form set forth in the first proposed amended complaint, on the ground that "no such cause of action is pleaded in the proposed amended complaint." Since no such cause of action was pleaded, the proposed amended complaint was "palpably insufficient to state a cause of action" (Tornheim v Blue & White Food Prods. Corp., 56 AD3d 761, 761; see Davis & Davis v Morson, 286 AD2d 584, 585; Stroock & Stroock & Lavan v Beltramini, 157 AD2d 590, 591; cf. Board of Mgrs. of Park Regent Condominium v Park Regent Assoc., 71 AD3d 1070, 1071). For the same reason, the Supreme Court also providently exercised its discretion in denying that branch of GuideOne's motion, made jointly with Yeshiva, which was for leave to amend the complaint to add that cause of action, in the form set forth in a second proposed amended complaint, as well as that branch of Yeshiva's motion, made jointly with GuideOne, which was, in effect, for leave to renew that branch of its prior motion which was for leave to amend the complaint to add that cause of action (see Walsh v Mystic Tank Lines Corp., 51 AD3d 908, 909). To the extent that GuideOne was not seeking renewal, since it did not make a prior motion, the Supreme Court correctly denied that branch of the motion which was for leave to amend the complaint to add that proposed cause of action, since the second proposed amendment remained palpably insufficient. To the extent that Yeshiva sought renewal, the "new facts" offered on that branch of the motion would not have changed the Supreme Court's prior determination since that determination was similarly based on the failure of the second proposed amended complaint to state a cause of action for contractual indemnification (CPLR 2221[e][2]; Jackson Hgts. Care Ctr., LLC v Bloch, 39 AD3d 477, 480 [internal quotation marks omitted]).
However, the Supreme Court should have granted the alternative branch of the plaintiffs' motion which was for leave to amend the complaint to add a cause of action for a judgment declaring that they are entitled to contractual indemnification and reimbursement with respect to attorneys' fees incurred in defending the underlying personal injury action. Unlike the first proposed amended complaint, the second proposed amended complaint stated such a cause of action, and the post-mediation agreement does not bar such relief. Also, contrary to Flik's contention, the fact that the parties settled the underlying action without any judicial determination as to who was at fault does not preclude Yeshiva, or GuideOne, as Yeshiva's subrogee, from pursuing such a cause of action (see Yacovacci v Shoprite Supermarket, Inc., 24 AD3d 539, 541). Moreover, contrary to Flik's contention, the duty to defend is not dependent on the merits of the underlying complaint but, rather, "is triggered by the allegations contained in the underlying complaint" (BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d 708, 714). In addition, the proposed cause of action for declaratory relief would not cause prejudice or surprise (see Board of Mgrs. of Park Regent Condominium v Park Regent Assoc., 71 AD3d 1070, 1071).

Bitterman v. Dennis

Alan B. Brill, P.C., Suffern, N.Y. (Joshua Douglass and Donna M.
Brautigam of counsel), for appellant.
Jacobwitz and Gubits, LLP, Walden, N.Y. (Peter R. Eriksen and
Carmee Murphy of counsel), for
respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Rockland County (Berliner, J.), dated September 3, 2009, which denied her 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 failed to meet her prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957), with respect to the plaintiff's allegation that she sustained a left shoulder injury as a result of the subject accident (see McMillian v Naparano, 61 AD3d 943; O'Neal v Bronopolsky, 41 AD3d 452; Hughes v Cai, 31 AD3d 385; Loadholt v New York City Tr. Auth., 12 AD3d 352).
Since the defendant failed to satisfy her prima facie burden, it is unnecessary to consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see McMillian v Naparano, 61 AD3d at 943; Coscia v 938 Trading Corp., 283 AD2d 538).

Catana v. Hussain

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck, N.Y.
[Elizabeth M. Hecht], of counsel), for appellants.
William Pager, Brooklyn, N.Y., for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Solomon, J.), dated May 6, 2010, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
Contrary to the defendants' assertions, they failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motion, the defendants relied on, among other things, the affirmed medical report of Dr. Daniel Arick, an otolaryngologist. Dr. Arick conducted a hearing examination on April 23, 2009, and determined that the plaintiff was "essentially" deaf in his right ear. Dr. Arick opined that this condition was permanent. Dr. Arick did not opine as to the cause of this specific finding. Thus, the defendants' motion papers failed to demonstrate, prima facie, that the plaintiff's alleged hearing loss was not causally related to the subject accident (see Lubrano v Brown, 251 AD2d 383).
Since the defendants did not sustain their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538).

Drobecker v. Lawrence

Galasso, Langione, Catterson & LoFrumento, LLP, Garden City,
N.Y. (Michael F. LoFrumento of counsel), for appellant.
Russo, Apoznanski & Tambasco, Westbury, N.Y. (Susan J.
Mitola of counsel), for respondents.

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, Nassau County (Murphy, J.), entered September 28, 2009, as granted the defendants' cross 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).
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendants' cross motion for summary judgment dismissing the complaint is denied.
The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957; Burrowes v New York City Tr. Auth., 71 AD3d 714).
Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiff in opposition to the defendants' cross motion for summary judgment motion were sufficient to raise a triable issue of fact (see Karvay v Gueli, ____AD3d____, 2010 NY Slip Op 07146 [2d Dept 2010]; Burrowes v New York City Tr. Auth., 71 AD3d at 714; Chiara v Dernago, 70 AD3d 746, 747; Page v Belmonte, 45 AD3d 825, 826).

Frasca-Nathans v. Nugent

The Law Office of Christopher P. DiGiulio, P.C., New York, N.Y.
(William Thymius of counsel), for appellants.
Nicholas Panzini, P.C., Amityville, N.Y., for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Westchester County (Loehr, J.), entered January 5, 2010, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
Although we affirm the order appealed from, we do so on grounds other than those relied upon by the Supreme Court. Contrary to the Supreme Court's determination, the defendants failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). While the affirmed medical report of the defendants' examining orthopedic surgeon set forth the range of motion of the plaintiff's right knee, he failed to compare that finding to what was normal (see Chiara v Dernago, 70 AD3d 746; Page v Belmonte, 45 AD3d 825, 826). Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiff were sufficient to raise a triable issue of fact (see Mannix v Lisi's Towing Serv., Inc., 67 AD3d 977).
The defendants' remaining contentions are without merit.

Galofaro v. Wylie

Gravante & Looby, LLP, Brooklyn, N.Y. (Mary Margaret Looby of
counsel), for appellants.
Kaplan & McCarthy, East Elmhurst, N.Y. (James McCarthy of
counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Maltese, J.), dated September 10, 2009, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff Salvatore Galofaro did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
On September 24, 2004, in Manhattan, Salvatore Galofaro (hereinafter the injured plaintiff) allegedly was injured in a collision between his vehicle and the defendant's vehicle. The injured plaintiff, and his wife, suing derivatively, commenced this action alleging that the subject accident caused the injured plaintiff to sustain a serious injury within the meaning of Insurance Law § 5102(d). After discovery was completed, the defendant moved for summary judgment dismissing the complaint on the ground that the injured plaintiff had not suffered a serious injury (see Insurance Law § 5102[d]). The Supreme Court granted the motion; we reverse.
The plaintiffs alleged in their bill of particulars, amended bill of particulars, and supplemental bill of particulars, inter alia, that the injured plaintiff sustained a medically determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Strilcic v Paroly, 75 AD3d 542; Encarnacion v Smith, 70 AD3d 628, 629). The defendant failed to meet his burden of establishing his prima facie entitlement to judgment as a matter of law dismissing the complaint inasmuch as he did not establish that the injured plaintiff had not suffered such a medically determined injury (see Alvarez v Dematas, 65 AD3d 598, 599; Smith v Quicci, 62 AD3d 858, 858-859). Since the defendant did not sustain his prima facie burden on his motion, it is unnecessary to determine whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see Strilcic v Paroly, 75 AD3d at 542; Takaroff v A.M. USA, Inc., 63 AD3d 1142, 1144).

Granovskiy v. Zarbaliyev

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacey R. Seldin of counsel), for appellants.
Scott Inwald (Alexander Dranov, LLC, Brooklyn, N.Y.), for
respondents.
In an action to recover damages for personal injuries, the
defendants appeal from an order of the Supreme Court, Kings County
(Schmidt, J.), dated January 14, 2010, which denied their motion for
summary judgment dismissing the complaint on the ground that neither of
the plaintiffs

DECISION & ORDER
sustained a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
Contrary to the defendants' assertion, they failed to meet their prima facie burden of showing that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; cf. Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motion, the defendants relied on the affirmed medical reports of their examining orthopedic surgeon, Dr. Gregory Montalbano, which were insufficient to eliminate all triable issues of fact. Dr. Montalbano examined the plaintiffs on September 23, 2008, and noted in his respective reports significant range-of-motion limitations in the cervical region of the plaintiff Vladimir Granovskiy's spine, and significant range-of-motion limitations in the cervical and lumbar regions of the plaintiff Lyubov Granovskaya's spine and left shoulder (see Smith v Hartman, 73 AD3d 736; Leopold v New York City Tr. Auth., 72 AD3d 906; Catalan v G & A Processing, Inc., 71 AD3d 1071; Croyle v Monroe Woodbury Cent. School Dist., 71 AD3d 944; Kjono v Fenning, 69 AD3d 581). While Dr. Montalbano concluded, with respect to both of the plaintiffs, that the range-of-motion limitations noted were a "subjective examination parameter," he failed to explain or substantiate, with any objective medical evidence, the basis for his conclusions that the noted limitations were self-restricted (see Bengaly v Singh, 68 AD3d 1030; Moriera v Durango, 65 AD3d 1024).
Since the defendants failed to meet their prima facie burden, it is unnecessary to determine whether the plaintiffs' papers submitted in opposition were sufficient to raise a triable issue of fact (see Smith v Hartman, 73 AD3d at 737; Leopold v New York City Tr. Auth., 72 AD3d at 907; Coscia v 938 Trading Corp., 283 AD2d 538, 538).

Jones v. Hoaue

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Robert D. Grace of counsel), for appellants.
Arze & Mollica, LLP, Brooklyn, N.Y. (Raymond J. Mollica of
counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Starkey, J.), dated December 2, 2009, as denied their motion for summary judgment dismissing the complaint on the ground that Marsha Stein did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendants met their prima facie burden of showing that Marsha Stein 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 raised a triable issue of fact as to whether Marsha Stein sustained a serious injury to the cervical and/or lumbar regions of her spine as a result of the subject accident (see Evans v Pitt,AD3d, 2010 NY Slip Op 07138 [2d Dept]; Tai Ho Kang v Young Sun Cho, 74 AD3d 1328).
Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.

Nsiah-Ababio v. Hunter

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Mead, Hecht, Conklin & Gallagher, LLP [Elizabeth M. Hecht], of
counsel), for appellants.
Kagan & Gertel, Brooklyn, N.Y. (Irving Gertel of counsel), for
respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Taylor, J.), dated March 30, 2010, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
This action arises from a two-car motor vehicle accident which occurred on the evening of January 27, 2008, in the Far Rockaway section of Queens. While 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; Srebnick v Quinn, 75 AD3d 637), in opposition, the plaintiff's submissions raised a triable issue of fact (see Tai Ho Kang v Young Sun Cho, 74 AD3d 1328). The plaintiff's treating physician reported significant limitations of motion in the cervical and lumbar regions of the plaintiff's spine both contemporaneously with the accident and at a recent examination of the plaintiff.
Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.

Rabinowitz v. Kahl

Gallagher, Walker, Bianco & Plastaras, Mineola, N.Y. (Michael R.
Walker of counsel), for appellants.
Abbott Bushlow & Schechner, LLP, Ridgewood, N.Y. (Richard
Schechner of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Whelan, J.), entered January 5, 2010, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
Contrary to the defendants' contention, they failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). Here, the defendants relied on, inter alia, the affirmed medical report of Dr. William A. Healy, their examining orthopedic surgeon. During his examination of the plaintiff on February 11, 2009, he noted significant limitations in the plaintiff's cervical and lumbar spine ranges of motion. He concluded that the plaintiff may have suffered from an aggravation of preexisting degenerative disc disease in her cervical and lumbar spine. The plaintiff alleged in her bill of particulars that the subject accident aggravated and/or exacerbated preexisting degenerative conditions in her cervical and lumbar regions. Thus, the findings of this expert failed to establish that the limitations noted by him were not caused by the subject accident (see Washington v Asdotel Enters. Inc., 66 AD3d 880; McKenzie v Redl, 47 AD3d 775).
Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Washington v Asdotel Enters. Inc., 66 AD3d at 880; McKenzie v Redl, 47 AD3d at 775; Coscia v 938 Trading Corp., 283 AD2d 538).

Rajkumar v Budd Contracting Corporation

Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn
of counsel), for appellants.
Kravet Hoefer & Maher, P.C., Bronx (John A. Maher of
counsel), for respondent.
Order, Supreme Court, Bronx County (Dominic R. Massaro, J.), entered June 19, 2009, which, to the extent appealed from as limited by the briefs, denied the hotel defendants' motion for summary judgment insofar as it sought dismissal of plaintiff's Labor Law §§ 200 and 241(6) and common law negligence claims, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed as against the hotel defendants. The Clerk is directed to enter judgment accordingly.
Dismissal of the Labor Law § 241(6) claim was warranted as the evidence demonstrated that plaintiff's interior decorating work, which involved, inter alia, the manufacture and hanging of a 300-pound mirror in the hotel defendants' main lobby, was not done in the context of construction, demolition or excavation work (see Nagel v D & R Realty Corp., 99 NY2d 98 [2002]; Esposito v New York City Indus. Dev. Agency, 305 AD2d 108 [2003], affd 1 NY3d 526 [2003]). To the extent the hotel defendants raise the issue of the applicability of Labor Law § 241(6) for the first time on appeal, we exercise our discretion to reach the unpreserved issue as it could have been decided, as a matter of law, below (see e.g. Chateau D'If Corp. v City of New York, 219 AD2d 205, 209 [1996], lv denied 88 NY2d 811 [1996]).
Even assuming, arguendo, plaintiff's work was performed in the context of construction, demolition or excavation, we further find that Industrial Code § 23-1.7(e), upon which plaintiff relies in support of his Labor Law § 241(6) claim, lacks evidentiary support in the record for its application. Plaintiff described the main lobby in which his accident occurred as a big open space, and we conclude that such an area would not fit within the term of "passageway," as set forth in subdivision (e)(1) (see e.g. Smith v Hines GS Props., Inc., 29 AD3d 433 [2006]). Further, subdivision (e)(2) of Industrial Code § 23-1.7(e) pertains to such tripping hazards as dirt, debris and scattered tools and materials in a work area. Here, the plaintiff did not trip over loose or scattered material, but rather, over brown construction paper that was purposefully laid over newly installed floors to protect them. Such paper covering constituted an integral part of the floor work on the renovation project, and could not be construed to be a misplaced material over [*2]which one might trip (see e.g. Vieira v Tishman Constr. Corp., 255 AD2d 235 [1998]).
Plaintiff's Labor Law § 200 and common law negligence claims should have been dismissed as there was no evidence that the hotel defendants had actual or constructive notice of a defect in the paper floor covering (see Cahill v Triborough Bridge & Tunnel Auth., 31 AD3d 347, 350-351 [2006]; Canning v Barneys N.Y., 289 AD2d 32, 33 [2001]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Pirog v. 5433 Preston Court, LLC

Gallo Vitucci & Klar, LLP, New York, N.Y. (Kimberly A. Ricciardi
of counsel), for appellant.
Kahn Gordon Timko & Rodriques, P.C., New York, N.Y.
(Nicholas I. Timko of counsel), for
respondent.


DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (F. Rivera, J.), dated October 30, 2009, as denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.
The defendant owns property in Brooklyn used by the plaintiff's employer to store construction-related materials for use on various construction projects in New York City. The plaintiff allegedly injured his hand while he and his coworkers were placing pipes onto a stack of pipes located on the defendant's property. The plaintiff subsequently commenced this action against the defendant asserting causes of action sounding in common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6).
The defendant established, prima facie, that at the time of the accident, the plaintiff was not engaged in construction work within the meaning of Labor Law § 240(1) and was not working in a construction area within the meaning of Labor Law § 241(6) (see Hurtado v Interstate Materials Corp., 56 AD3d 722; Furino v P & O Ports, 24 AD3d 502, 503; Peterkin v City of New York, 5 AD3d 652). With respect to Labor Law § 200 and common-law negligence, the accident arose from alleged dangers concerning the methods of the plaintiff's work, and the defendant made a prima facie showing that it did not have the authority to supervise or control the performance of the plaintiff's work (see Ortega v Puccia, 57 AD3d 54, 61-63). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). Therefore, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.
In light of our determination, we need not address the defendant's remaining contentions.
FISHER, J.P., DILLON, FLORIO and LOTT, JJ., concur.

Ramos v The City of New York


Morris Duffy Alonso & Faley, New York (Iryna Krauchanka
of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Larry A.
Sonnenshein of counsel), for respondent.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered April 8, 2009, which, to the extent appealed from, denied third-party defendant Tristar Patrol Service, Inc.'s (Tristar) cross motion for summary judgment dismissing the third-party complaint and all claims asserted against it, unanimously reversed, on the law, without costs, the cross motion granted, and the third-party complaint and all claims asserted against Tristar dismissed. The Clerk is directed to enter judgment accordingly.
Plaintiff, who was employed by Tristar as a security guard, was injured at premises owned by defendant/third-party plaintiff the City of New York. Tristar provided security services at the premises. On the date of the accident, plaintiff's duties consisted of checking the ID's of people who worked at the premises, scanning people who did not work there, checking bags for weapons, and patrolling the exterior of the building. Plaintiff claims that he was directed by an employee of the City, who supervised him at the premises, to turn off the heater/fan which was located in a closet on the main floor of the premises. The closet was dark and there were no signs posted warning that the area was restricted. After returning to the City employee, having his request for a flashlight denied, and being directed to go back and shut the heater/fan off, plaintiff returned to the closet, pressed the switch of the heater/fan and allegedly received a severe electric shock. Plaintiff commenced the instant action against the City, as the owner of the premises and the City commenced a third-party action against Tristar for contractual indemnification. Tristar subsequently cross-moved for summary judgment.
Pursuant to the contract entered into between the City and Tristar, Tristar agreed to provide unarmed and armed uniformed guard services at the City's premises. The clear and unambiguous words of said contract provide that Tristar is only obligated to indemnify the City for "claims arising out of or in any way related to this Contract . . . resulting or alleged as resulting from the negligence of the Contractor . . . in its performance of this Contract." Thus, Tristar had a duty to indemnify the City only for Tristar's negligence in the performance of its duties and not for the City's own negligence. Since plaintiff's injuries arose when he attempted to turn off the switch for the heater/fan which was an activity clearly outside of the scope of his duties as a security guard, and the contract between the City and Tristar does not allocate any responsibility to Tristar for the installation, maintenance, repair, or operation of the heater/fan and its switch, Tristar is not obligated to indemnify the City as a matter of law; there is no proof that plaintiff's injuries arose from Tristar's breach of a duty of care owed to the City or from the work Tristar performed under its contract with the City (see Lopez v Consolidated Edison Co. of N.Y., 40 NY2d 605 [1976]; Guinter v I. Park Lake Success, LLC, 67 AD3d 406 [2009]).
Tristar's cross motion was not premature as the City contends. The City has failed to show that further discovery would lead to evidence which would raise a triable issue of fact
(see Steinberg v Schnapp, 73 AD3d 171 [2010]; Bailey v New York City Tr. Auth., 270 AD2d 156 [2000]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

Lopez v Wyckoff Heights Medical Center


Edward J. Guardaro, Jr., White Plains, N.Y. (Gina B. DiFolco and
Terence Reynolds of counsel), for appellant.
Wingate, Russotti & Shapiro, LLP, New York, N.Y. (Jason M.
Rubin of counsel), for plaintiff-
respondent.
Arshack, Hajek & Lehrman, PLLC, New York, N.Y. (David J.
Knight and Lynn Hajek of counsel), for
defendant-respondent Wyckoff Heights
Medical Center.


DECISION & ORDER
In an action to recover damages for medical malpractice, wrongful death, and conscious pain and suffering, the defendant Yvon Nazaire appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Steinhardt, J.), dated February 5, 2009, as denied those branches of his motion which were for summary judgment dismissing the second amended complaint insofar as asserted against him as time-barred, and for leave to amend his answer to assert a cross claim for indemnification and thereupon for summary judgment on that cross claim or, alternatively, for severance of that cross claim.
ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the motion of the defendant Yvon Nazaire which was for summary judgment dismissing the second amended complaint insofar as asserted against him as time-barred and substituting therefor a provision granting that branch of the motion, and (2) by adding thereto the words "are denied as academic" after the words "for leave to sever"; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant Yvon Nazaire, payable by the plaintiff.
The defendant Yvon Nazaire contends that the Supreme Court erred in denying that branch of his motion which was for summary judgment dismissing the second amended complaint insofar as asserted against him as time-barred. We agree.
Nazaire established his prima facie entitlement to judgment as a matter of law dismissing the second amended complaint insofar as asserted against him since it is undisputed that the statute of limitations had expired prior to the plaintiff's service and filing of the second amended complaint, in which Nazaire was first named as a defendant. Accordingly, the burden then shifted to the plaintiff to raise a triable issue of fact, in opposition to that showing, as to the applicability of the "relation-back doctrine" with respect to Nazaire (Boodoo v Albee Dental Care, 67 AD3d 717, 718). "In order for a claim asserted against a new defendant to relate back to the date the claim was filed against another defendant, the plaintiff must establish that (1) both claims arose out of [the] same conduct, transaction, or occurrence, (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that he will not be prejudiced in maintaining his defense on the merits, and (3) the new defendant knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him as well" (Boodoo v Albee Dental Care, 67 AD3d at 718; see Buran v Coupal, 87 NY2d 173, 178). "The linchpin of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period" (Alvarado v Beth Israel Med. Ctr., 60 AD3d 981, 982 [internal quotation marks omitted]; see Buran v Coupal, 87 NY2d at 180).
Here, the plaintiff failed to raise a triable issue of fact as to the third prong of the relation-back doctrine. The record establishes that Nazaire was no longer working at the defendant hospital nor employed by the defendant professional corporation at the time of the commencement of the action against those entities, and there is no evidence that he had actual or constructive knowledge within the limitations period of the commencement of the action against them. Accordingly, the plaintiff failed to raise a triable issue of fact as to whether Nazaire knew or should have known that, but for a mistake by the plaintiff, the action would have been commenced against him as well (see Boodoo v Albee Dental Care, 67 AD3d at 718; Alvarado v Beth Israel Med. Ctr., 60 AD3d at 983; Shapiro v Good Samaritan Regional Hosp. Med. Ctr., 42 AD3d 443, 444-445).
In light of our determination, Nazaire's remaining contentions have been rendered academic.
PRUDENTI, P.J., ANGIOLILLO, BELEN and SGROI, JJ., concur.

 

Cortes v Town of Brookhaven


Goldberg Segalla LLP, Mineola, N.Y. (Brian W. McElhenny and
Marianne Arcieri of counsel), for defendant third-party plaintiff-
appellant.
Loccisano & Larkin (Mauro Goldberg & Lilling LLP, Great
Neck, N.Y. [Matthew W. Naparty and
Anthony F. DeStefano], of counsel), for
third-party defendants-respondents.


DECISION & ORDER
In an action to recover damages for personal injuries, in which the defendant Town of Brookhaven asserted a third-party complaint, inter alia, for contractual indemnification, the defendant third-party plaintiff appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated April 15, 2009, as, upon the granting of that branch of the motion of the third-party defendants Doleen Trucking Corp. and DF Stone Contracting, Ltd., pursuant to CPLR 4401 which was for judgment as a matter of law dismissing the third cause of action in the third-party complaint for contractual indemnification insofar as asserted against the third-party defendant DF Stone Contracting, Ltd., and, upon, in effect, the denial of its motion pursuant to CPLR 4401 for judgment as a matter of law on the third cause of action in the third-party complaint for contractual indemnification insofar as asserted against the third-party defendant DF Stone Contracting, Ltd., made at the close of evidence, is in favor of the third-party defendant DF Stone Contracting, Ltd., and against it, dismissing the third cause of action in the third-party complaint for contractual indemnification insofar as asserted against the third-party defendant DF Stone Contracting, Ltd.
ORDERED that the judgment is reversed insofar as appealed from, on the law, with costs, that branch of the motion of the third-party defendants Doleen Trucking Corp. and DF Stone Contracting, Ltd., pursuant to CPLR 4401 which was for judgment as a matter of law dismissing the third cause of action in the third-party complaint for contractual indemnification insofar as asserted against the third-party defendant DF Stone Contracting, Ltd., is denied, the third cause of action in the third-party complaint for contractual indemnification insofar as asserted against the third-party defendant DF Stone Contracting, Ltd., is reinstated, the motion of the defendant third-party plaintiff pursuant to CPLR 4401 for judgment as a matter of law on the third cause of action in the third-party complaint for contractual indemnification insofar as asserted against the third-party defendant DF Stone Contracting, Ltd., is granted, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of an amended judgment awarding the defendant third-party plaintiff judgment as a matter of law on the third cause of action in the third-party complaint for contractual indemnification insofar as against the third-party defendant DF Stone Contracting, Ltd.
DF Stone Contracting, Ltd. (hereinafter DF Stone), entered into a contract with the Town of Hempstead (hereinafter Hempstead) to transport ash from Hempstead to a landfill facility in the Town of Brookhaven (hereinafter Brookhaven). The plaintiff, a truck driver, was injured when the truck in which he was transporting ash overturned at the Brookhaven landfill. He sued Brookhaven, which then brought a third-party action against Doleen Trucking Corp. (hereinafter Doleen), DF Stone, and H. Bittle & Sons, Inc. (hereinafter H. Bittle), seeking, inter alia, contractual indemnification. Doleen owned the trucks used by DF Stone. H. Bittle was the plaintiff's employer, and it owned the facility from which DF Stone and Doleen operated. The complaint insofar as asserted against H. Bittle was withdrawn before trial.
At the close of evidence, Doleen and DF Stone moved pursuant to CPLR 4401 for judgment as a matter of law, inter alia, dismissing the third cause of action in the third-party complaint for contractual indemnification, and Brookhaven moved pursuant to CPLR 4401 for judgment as a matter of law on that same cause of action insofar as asserted against DF Stone. The Supreme Court granted the motion of Doleen and DF Stone, and denied Brookhaven's motion. Thereafter, the jury found the plaintiff 60% liable and Brookhaven 40% liable in the happening of the accident.
In the judgment appealed from, the Supreme Court dismissed, inter alia, Brookhaven's third-party claim for contractual indemnification from DF Stone and Doleen. Brookhaven appeals only from so much of the judgment as the dismissed third cause of action in the third-party complaint for contractual indemnification insofar as asserted against DF Stone.
Generally, "contracts will not be construed to indemnify a person against his [or her] own negligence unless such intention is expressed in unequivocal terms" (Kurek v Port Chester Hous. Auth., 18 NY2d 450, 456 [internal quotation marks omitted]; see Sherry v Wal-Mart Stores E., L.P., 67 AD3d 992, 994), provided that none of the exceptions to this rule contained in the General Obligations Law are applicable. Where those exceptions do not apply, parties can enter into agreements to indemnify one party for his or her negligence and the indemnity clause need not "contain express language referring to the negligence of the indemnitee, but merely that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement, and the surrounding facts and circumstances" (Margolin v New York Life Ins. Co., 32 NY2d 149, 153; see Sherry v Wal-Mart Stores E., L.P., 67 AD3d at 994-995). "When the intent is clear, an indemnification agreement will be enforced even if it provides indemnity for one's own or a third party's negligence" (Bradley v Earl B. Feiden, Inc., 8 NY3d 265, 275; see Sherry v Wal-Mart Stores E., L.P., 67 AD3d at 995), except where such agreements are void and unenforceable as a matter of law.
Here, the indemnification provision which applies to Brookhaven is contained in the "Project Description" section of the contract between DF Stone and Hempstead, relating to this specific contract, as opposed to the general conditions which were not applicable to Brookhaven. The indemnification clause pertaining to Brookhaven provides, inter alia, that DF Stone would indemnify Brookhaven "against any and all claims, suits or liability which might arise in connection with this agreement [and] from any and all claims, suits, or liabilities that might arise as a result of transporting, handling, depositing, staging and storing of the Process Residue transported." None of the statutory exceptions to the general rule that, where one party agrees to indemnify another against "any and all claims," it is agreeing to indemnify the other party even where that party has been negligent (see Levine v Shell Oil Co., 28 NY2d 205, 212-213; Kurek v Port Chester Hous. Auth., 18 NY2d at 456-457; Sherry v Wal-Mart Stores E., L.P., 67 AD3d at 995-996; Brooklyn Union Gas Co. v Interboro Asphalt Surface Co., 303 AD2d 532, 535), applies in this case. Accordingly, DF Stone is obligated pursuant to contract to indemnify Brookhaven against liabilities arising out of the main action regardless of the jury's finding that Brookhaven was negligent.
SANTUCCI, J.P., BALKIN, LEVENTHAL and AUSTIN, JJ., concur.

 

Bailey v Macy's East, Inc.

Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Harry
Steinberg of counsel), for defendants third-party plaintiffs-appellants.
Morenus, Conway, Goren & Brandman, Melville, N.Y. (Frank
R. Matozzo of counsel), for third-party
defendant-respondent.


DECISION & ORDER
In an action to recover damages for personal injuries, and a third-party action for a judgment declaring, inter alia, that the third-party defendant is obligated to defend and indemnify the defendants third-party plaintiffs in the main action, the defendants third-party plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Pastoressa, J.), dated April 27, 2009, as denied that branch of their motion which was for summary judgment declaring that the third-party defendant is obligated to defend and indemnify them in the main action, and granted the third-party defendant's cross motion for summary judgment.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the cross motion for summary judgment is denied, that branch of the motion of the defendants third-party plaintiffs which was for summary judgment declaring that the third-party defendant is obligated to defend and indemnify them in the main action is granted, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment declaring that the third-party defendant is so obligated.
The third-party defendant, Birger Christensen, doing business as BC International Group, Inc. (hereinafter BCI), entered into a "Department License Agreement" with the defendants third-party plaintiffs Macy's East, Inc., and Federated Department Stores, Inc. (hereinafter together Macy's), to operate a fur sales department within certain Macy's stores, including its store located at the Smith Haven Mall. Subsequently, the plaintiff, a BCI employee, allegedly was injured when she fell on a walkway leading from the employees' entrance of the Macy's store to the parking lot of the Smith Haven Mall. The plaintiff commenced this personal injury action against Macy's, and Macy's, in turn, commenced a third-party action against BCI. In the order appealed from, the Supreme Court, inter alia, denied that branch of Macy's motion which was for summary judgment declaring that BCI was obligated to defend and indemnify it in the main action, and granted BCI's cross motion for summary judgment. We reverse the order insofar as appealed from.
Macy's established its prima facie entitlement to judgment as a matter of law declaring that BCI is obligated to defend and indemnify it in the main action by submitting a copy of the parties' license agreement and excerpts from the plaintiff's deposition testimony. Section 8.1 of the license agreement specifically requires BCI to indemnify Macy's from "any claims . . . arising or resulting from . . . injury to any of [BCI's] representatives." In addition, Section 8.2 requires BCI to defend Macy's, upon request, in "any action or proceeding as to which [Macy's] is entitled to indemnification from [BCI]." Moreover, although the plaintiff testified that she was injured as she was leaving work, her job necessarily required her to use the walkway outside of the employees' entrance to reach and leave her workplace. Thus, contrary to BCI's contention, the underlying claim arose as a result of the operation of the fur sales department (see O'Connor v Serge El. Co., 58 NY2d 655; Amato v Our Lady of Peace R. C. Church, 56 NY2d 999; Daily News v OCS Sec., 280 AD2d 576, 577).
In opposition to Macy's prima facie showing, BCI failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). Accordingly, the Supreme Court should have denied BCI's cross motion for summary judgment and granted that branch of Macy's motion which was for summary judgment declaring that BCI is obligated to defend and indemnify it in the main action.
BCI's remaining contentions are without merit.

Since the third-party action seeks declaratory relief, the matter must be remitted to the Supreme Court, Suffolk County, for the entry of a judgment declaring that BCI is obligated to defend and indemnify Macy's in the main action (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).
MASTRO, J.P., LEVENTHAL, HALL and LOTT, JJ., concur.