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Coverage Pointers - Volume XII, No. 18

Dear Coverage Pointers Subscribers:

 The opening of our Albany Office is only a few short weeks away and we appreciate the wonderful response we have received from so many of you to our presence in the Capital District.

 It's a beautiful day in Southern California where I'm attending the FDCC Annual Meeting.  Unfortunately, I must return home to 12 degrees temperatures on Saturday and it's simply unfair.  Even worse, I have to return home on my own personal holiday: March 5th, commemorates both the 58th anniversary of Joseph Stalin's death and your editor's birth, several hours later

 Just heard Rachel Dretzin, the award-winning producer of two PBS FRONTLINE documentaries about life in the digital age, Growing Up Online and Digital Nation: Life on the Virtual Frontier, speaking about how electronic media has altered the way we learn and work and even the way we socialize.

 There were rumbles about the perils of technology as the audience filed out of the conference center and surely there are some significant questions about the impact of multi-tasking on our lives.  But there are benefits.  We're the last generation to grow up without the Internet.  We're also the first to allow the distribution of over 2000 copies of a newsletter covering decisions rendered the same day to those seeking the latest developments in insurance law instead of killing thousands of trees to send out paper newsletters often three months after a critical decision is announced.

 I could not help but think of one of the best commercials in history, the Xerox -- "It's a Miracle" commercial, from the mid-70's as the copying giant advertised its revolutionary machinery:  http://www.break.com/longtail-content/xerox-monks.html

 Enough said.

 There are two very interesting Court of Appeals decisions in this week's edition, one dealing with "other insurance" clauses and the other dealing with aggregate limits.  I commend them to your attention and they are the first two reported in my column.

 Pardon the brevity of this week's cover letter, but there are programs to attend and pools to visit. 


From Audrey Seeley and the Land of No Fault:

 We have a healthy diversity of cases and awards to report on.  From whether bold, large font is required in EUO scheduling letters, to whether an applicant actually mailed its bill within 45 days from date of service.  There is even an award regarding whether an alleged drug buy gone bad resulted in injuries arising out of the use and operation of a motor vehicle.

 It is still not too late to sign up for the DRI Insurance Coverage and Claims Institute in Chicago from March 30-April 1.  The program will have speakers such as Lisa Brennan of Prairie State Administrative Services Inc. and Christopher "Kipper" Burke of Great American Insurance Company providing a candid perspective on the interrelationship between insurers and their coverage counsel.  Learn from those in the industry what things outside coverage counsel does that upset their clients and generally what the proper care and feeding is of your favorite insurance client. 

 Further, please note if you are in-house counsel, as defined by DRI, then you may be eligible for free registration.  Also, if you are a DRI member who wants to invite in-house counsel, as defined by DRI, who is not a DRI member you may qualify to invite them as your guest at no cost to him or her.   If you need additional information please contact me at
[email protected].

 Finally, I understand that this fall the National Business Institute is seeking to create another No-Fault program with sessions in Buffalo and Syracuse with participation being solicited from the American Arbitration Association.  Stay tuned for more information in the coming months.....

 Audrey

 

Book Review:         General Liability Insurance Coverage - Key Issues in

                                    Every State

Authors:                      Randy Maniloff and Jeffrey Stempel

Publisher:                   Oxford University Press

 You and I get the phone calls and e-mails all the time. The random coverage question about our state or others:  Does Texas follow the "four corners" rule or allow "extrinsic evidence" when considering the duty to defend?  What's the current state of the law in Oklahoma relating to the insured's right to independent counsel?  Can defense costs be recouped in Pennsylvania?  Is New York an "injury-in-fact" state or a "triple trigger" jurisdiction?  Is emotional injury a "bodily injury" in South Carolina?  Is prejudice required to sustain a late notice disclaimer in California?

 Sometimes, you happen to know the answer and you achieve immediate hero status. However, more often than not, you may know the local rule in your own jurisdiction (or you may not) but you have no idea whether that other state follows the same approach or take an entirely different tact.

 So, you get on the phone and use a lifeline or as they say in Cash Cab¸ use a telephone or office shout-out and hope that the individual you contact is just a bit more knowledgeable than you.  What you would really rather do is reach for that coverage handbook on the shelf next to you to get both the answer to the question and the back-up citation to the statute or court decision that provides support.

 Well, thanks to the good work of Randy Maniloff, a nationally respected coverage lawyer with the Philadelphia firm of White & Williams, LLP and scholar Jeffrey W. Stempel, a Professor of Law at the William S. Boyd School of Law, University of Nevada Las Vegas, that resource is now available.

 General Liability Insurance Coverage - Key Issues in Every State, published by Oxford University Press, is a coverage compendium, a 500-page "first place to look" handbook that provides 50-state surveys on key issues of general liability coverage.  Twenty-one chapters in length, you'll find the rules relating to "choice of law," late notice defenses, faulty workmanship as an occurrence, recovery of attorney's fees, coverage triggers and bad faith standards, just to name a few.   Short, crisp and well-supported summaries of each state's positions are provided in a well-indexed and organized soft-covered offering. 

 For each state and each coverage issue, you'll find a one paragraph, concise summary of the current state of the law with reference to the key appellate cases, if that state's appellate courts have so ruled.  If not, and the authors have found a lower court decision.  For example, I wasn't aware of a 1993 Southern District of NY opinion allowing recoupment of defense costs when specifically reserved, but I'll use that citation the next time the issue comes to the forefront.

 Priced at $125 and available on the Oxford University Press website, you'll make up the cost the first time you can avoid a LEXIS or WESTLAW search for that one important citation.

 Editor's Note:  I found out that after six weeks, the book is going into its third printing and will be out-of-stock until March 16th. Per the authors,  a 20% discount is available on the Oxford site by using the promo code 29471 in the upper right corner. My only suggestion to these very able authors is that the next edition be in loose-leaf format so it can be easily updated.  We understand that the authors hope and expect to provide new editions, each year, with additional chapters and up-to-date case law to make sure this valuable tool remains current.

 

Wisconsin:  One Hundred Years Ago

In Thursday's headlines, the conservative majority of the Wisconsin Senate has voted to hold the Democrats in contempt, unless they return to the state and vote on the proposal to radically alter public collective bargaining rights.

How a century can change politics.

One hundred years ago today, in Wisconsin, Victor Berger became the symbol of Milwaukee's socialism, as he took office a century ago as the nation's only elected Socialist Party Member of Congress.

In 1900, he and Eugene Debs formed the Social Democratic Party, which merged with the Social Labor Party to become the Socialist Party of America in 1901.

Under Berger's leadership, the Milwaukee Socialists won major electoral victories in city elections in 1910. Berger himself won a seat in the U.S. House of Representatives, becoming the first Socialist to win national office. He lost his seat in 1912.   He returned to Congress after an election in 1918 but was denied a seat because of claims he violated the federal Espionage Act. A special election was called to fill his seat and he again won the seat in 1919.  Still refused a seat, he ran again in 1920 and lost.

After his criminal charges were cleared, he was elected to Congress again in 1922 and served for three terms.  While in office, he proposed pensions for the elderly, unemployment insurance and public housing. Defeated in 1928, Berger returned to Milwaukee and resumed his newspaper career until his untimely death in a streetcar accident on July 16, 1929.


This Week in Coverage Pointers:

In this week's issue of Coverage Pointers, you will find a virtual jambalaya of interesting coverage decisions

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

Court of Appeals 

  • Where D&O and CGL Carriers Share at Least One Common Cause of Action, Other Insurance Clauses Invoked to Determine Primacy of Defense
  • "Aggregate" Means "Annual Aggregate" In Multi-Year Umbrella Policy 

Appellate Division

  • Three Year Statute of Limitations Against Insurance Broker for Failure to Notify Carrier of Claim, Does Not Accrue Until Judgment is Entered Against Insured
  • Service on Secretary of State is Deemed Service on Insured;  Insured's Failure to Turn Process Over to Carrier is Unexcused
  • Appellate Court Does Not Disturb Finding of Fact in Framed Issue Hearing Establishing Hit-and-Run Accident
  • Broker Allegedly Knew of Need for Builder's Risk Coverage so E&O Claim Remains Viable
  • No Need to Disclaim Promptly if Party Is Not Insured; In any Event, Material Misrepresentations Void Policy
  • In Agent E&O Claim, Question of Fact About "Course of Dealing"
  • Notice by Named Insured Deemed to Be Notice by Additional Insured When Interests Are Not Adverse; Serious Delays Derail Sirius
  • E&O Claim Against Broker Dismissed When Insured Had Opportunity to Review Policy Issued and Did Not
  • No Need to Disclaim Timely When Issue Is Whether or Not Injuries Incurred in Accident
  • No Acceptable Excuse Offered for Two Year Delay in Giving Notice of Uninsured Motorists Claim so Coverage Is Lost
  • Carrier Walks Because Nobody Talks.  Insured's Notice to Umbrella Carrier Was Three Years Late; Injured Party's Notice Was Seven Months Late (After Learning of Umbrella Policy)
  • Three Years Late Notice Is Pretty Darn Late; Coverage Lost

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

  • When Defendants' Expert Finds Range-of-Motion Limitations, There Is Issue of Fact Precluding Motion for Summary Judgment

  • When Defendants' Expert Finds Range-of-Motion Limitations is Unrebutted, There is No Issue of Fact Precluding Motion for Summary Judgment

  • Cessation of Treatment with One Physician Is Not Gap in Treatment
  • Motion to Reargue Properly Granted Where "Controlling Principle of Law" Was Misapplied
  • Work Loss Unsupported by Medical Evidence Does Not Support 90/180-Day Claim
  • Plaintiff's Medical Reports Fail to Raise an Issue of Fact
  • Defendants' Experts Fail to Address 90/180-Day Claim in Bill of Particulars or Examine Plaintiff's Allegedly Injured Knee
  • Again, Defendants' Experts Fail to Address 90/180-Day Claim in bill of Particulars
  • Discrepancies in Explanations for Gap in Treatment Are a Matter of Credibility for the Trier of Fact
  • Plaintiff's Claim That He Is Still on "Light" Duty Needs Medical Support
  • Needless Continuous Treatment Is Not Required to Establish Serious Injury; Supplemental Bill of Particulars Is Not a Disclosure Device 

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

ARBITRATION

  • Insurer Is Entitled to Corresponding Medical Record If Requested Timely Through Verification
  • Undisputed Testimony from Applicant's Biller Demonstrates 45 Day Rule Not Violated
  • Incident Did Not Arise Out of Use or Operation of Vehicle

LITIGATION 

  • Insurer Required to Submit Responsibility for Payment of No-Fault Benefits to Inter-Company Arbitration
  • Insurer's Denials Defective for Omission of Material Items and Failure to Establish Timely Mailing
  • Insurer Not Required to Add Bold or Large Font to EUO Scheduling Letters
  • Affidavit Relying Upon Inadmissible Evidence Insufficient to Establish Entitlement to Summary Judgment
  • Affidavit Must Address Claims in Instant Action to Support Motion for Summary Judgment
  • Insurer's Cross-Motion Denied as Plaintiff Submits Sufficient Rebuttal Affirmation
  • Plaintiff Must Submit a Meaningful Rebuttal to a Peer Review to Survive Summary Judgment

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

Of Property 

  • Carrier has Standing in Subrogation Even Where the Contract at Issue was Executed by the Insured's Spouse

Of Potpourri  

  • Tenant has No Duty to Third Parties that Fall on Defective Sidewalks in Front of the Leased Premises; Indemnity Obligations, However, are a Different Story
  • Maintenance Agreement Seeking Indemnity for One's Own Negligence is Barred by Application of GOL 5-322.1
  • Mere Speculation as to the Cause of Decedent's Fall is Fatal to the Estate's Labor Law 240(1) Claim 

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

  • Prior Knowledge Conditions in Claims-Made Policy - Kansas
  • No Duty to Defend Trade Secrets Lawsuit - Kentucky

JEN'S GEMS
Jennifer A. Ehman

[email protected] 

  • Question of Fact as to Whether Two-Year Contractual Limitation Estopped
  • Court Refused to Vacate Arbitration Award Where Petitioner Failed to Meet Its Burden of Establishing That It Complied with all Applicable Statutes When It Canceled the Policy at Issue
  • Cabana Rented by Insured Every Summer Not a "Premises Occasionally Rented" as That Term Was Used in the Policy
  • Lack of Smoke Detectors on First Floor and in Basement Not Material to Trigger Warranty Contained in Policy
  • Certificate of Insurance Not Sufficient to Raise Question of Fact as to Plaintiff's Status as an Additional Insured 

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

"RED FLAGS" OF WORKERS COMPENSATION FRAUD

 

That's all for now.  See you on St. Patrick's Day.

 

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

LinkedIn: www.linkedin.com/in/kohane

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

NEWSLETTER EDITOR
Dan D. Kohane

[email protected]


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


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


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


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


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


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


Court of Appeals

02/24/11       Hermitage Ins. Co. v. Fieldston Property Owners Assoc. Inc.
New York State Court of Appeals
Where D&O and CGL Carriers Share at Least One Common Cause of Action, Other Insurance Clauses Invoked to Determine Primacy of Defense
Two insurers, Hermitage and Federal were battling over their responsibilities with respect to the defense of Fieldston Property Owners Association, Inc. (Fieldston).
Hermitage issued a Commercial General Liability (CGL) policy to Fieldston providing coverage for both bodily injury and “personal injury.”  The "other insurance" clause of Hermitage's CGL policy provides, as relevant here:

"If other valid and collectible insurance is available to the insured for a loss we cover . . . our obligations are limited as following:
(a) Primary Insurance. This insurance is primary except when b. below applies. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described [herein].
(b) Excess Insurance. This insurance is excess over [certain types of insurance not relevant here.]"

Federal issued a Directors and Officers Liability (D & O) policy on a claims made basis to Fieldston providing coverage for "wrongful acts."  The "other insurance" clause of Federal's D & O policy provides:

"If any Loss arising from any claim made against the Insured(s) is insured under any other valid policy(ies) prior or current, then this policy shall cover such Loss, subject to its limitations, conditions, provisions, and other terms, only to the extent that the amount of such Loss is in excess of the amount of such other insurance whether such other insurance is stated to be primary, contributory, excess, contingent or otherwise, unless such other insurance is written only as specific excess insurance over the limits provided in th[is] policy."

Chapel Farm informed Fieldston that Fieldston's officers had been making "false statements and fraudulent claims" with respect to Chapel Farm's "right to access its property from" adjacent public streets.  Chapel Farm then sued Fieldston and its officers in federal district court asserting several causes of action, including "injurious falsehood," and seeking damages, among other remedies.  Some of the facts and events described in the complaint apparently related to events that occurred during the D & O policy period, but not during the CGL policy period.

Hermitage demanded that Federal acknowledge its coverage obligations to Fieldston for defense of the Chapel Farms federal action.  Specifically, Hermitage, the carrier that undertook the insured’s defense, claimed that certain claims alleged in two separate complaints – actually, most of the causes of action – were not covered by the CGL policy but were covered by the D&O Policy. Federal, relying upon its "other insurance" clause, refused to provide coverage for defense costs.

The Appellate Division held that Federal was required to reimburse Hermitage for its equitable share of defending the federal Chapel Farm action, except to the extent that those costs related to the injurious falsehood claims.  The Appellate Division held that the CGL and D & O policies do not provide concurrent coverage as they do not insure against the same risks" and, basically, that each had a separate and primary obligation to defend those claims which were solely under the particular policy.

The Court of Appeals reversed the Appellate Division finding.  At least one of the claims – that sounding in “injurious falsehood,” may fall within the coverage of both policies.  Under the “other insurance clauses,” the Hermitage policy is primary as to the claims that are jointly covered.  Since the primary carrier has the obligation to defend the entire lawsuit, not only the covered claims, Hermitage has a sole and primary obligation to defend and cannot seek contribution from Federal

Federal's D & O policy provides that its coverage is excess where "any Loss arising from any claim made against the Insured is insured under any other valid policy(ies)."  Since there is at least one cause of action that may fall within both policies, the die is case and the carrier in the excess position received a free ride.
Editor’s Note:  While the Court didn’t says so, if there hadn’t been a cause of action in common to both policies, the result may well have been different.  The “other insurances” clauses should not invoked if the coverages did not share a common claim.  For example, if the CGL policy covered causes of action “1” through “5” and not “6 through 8,” and the D&O policy only covered causes of action “6” through “8,” the Court would more likely order the carriers to each defend and to do so on a 50-50 basis (since they would have each had an obligation to defend the entire lawsuit.

02/22/11       Union Carbide Corp. v. Affiliated FM Insurance Company
New York Court of Appeals
“Aggregate” Means “Annual Aggregate” In Multi-Year Umbrella Policy
In the mid-70’s Union Carbide Corporation (UCC) tried to obtain as much liability insurance coverage as it reasonably could. It acquired coverage in layers.
The primary, $5,000,000 layer was with Appalachian, which itself was subject to a self-insured retention. The Appalachian policy had a three-year duration, and was renewed annually, or "annualized."  The limit is identified in the policy declarations as an "annual aggregate," and one of the conditions of the policy provides: "The limit of liability . . . set forth as 'aggregate' shall be the total limit of the company's liability under this policy for ultimate net loss . . . during each consecutive 12 months of the policy period."
Losses above $5,000,000 were covered by successive layers of excess insurance.  The fifth excess layer – the $70.000,000 to $100,000,000 layer, was divided equally by six insurers ($5,000,000 each).  Two of those carriers, Continental and Argonaut were involved in this appeal.
The fifth layer excess policies were written on a brief "subscription form policy" prepared by UCC's insurance broker. It followed form to the Appalachian policy, provided limits of liability of “$30,000,000 each occurrence and in the aggregate” above the $70,000,000 and had a policy period from 12/1/73 – 12/1/76.  The policy provided that “Insurance afforded by this agreement shall follow all the terms, insuring agreements, definitions, conditions and exclusions of [the] underlying . . . Policy . . . issued by Appalachian Insurance Company."
UCC sold asbestos products and for the years in question, paid claims and expenses well in excess of the fifth layer – over $1.5 billion.  It sought $15,000,000 from each of the two carriers, $5,000,000 per carrier per year. 
Continental and Argonaut argued that their liability for the entire three-year period is capped at $5 million per company.
As to Continental, UCC claimed an additional $5 million because the policy was extended beyond the three years.  A supplement to the subscription form policy issued by Continental in December 1976 said that “in consideration of an additional premium of $1,530, it is agreed that the policy is hereby extended to read: 2/1/77 Exp. Date."
There were two issues for the Court of Appeals:  the “annualization” issue and the “subscription” issue. 
Annualization Issue:  “Aggregate” Construed to Mean “Annual Aggregate”
On the annualization issue, the carriers argued that the term "$30,000,000 . . . in the aggregate," can mean only that $30,000,000 million is the maximum that may be paid under the policy, and thus that the maximum share for each of the six signatories, including Continental and Argonaut, was $5,000,000 for the entire three year period.  While there was a follow form clause, which incorporated the Appalachian policy by reference, the carriers argue, the umbrella policy limits were "subject to the declarations set forth below" and those declarations, unlike the Appalachian policy, spoke of an "aggregate," not an "annual aggregate". 
UCC argued that under the follow-form clause, the conditions in the Appalachian policy are part of the subscription form policy, and that one of those conditions is that the "aggregate" limit shall be annualized.  In other words, for these two carriers, there would be a total of $30,000,000 available for the three years and thus each carrier’s total exposure would be $5,000,000 per year, or $15,000,000 each.
The high court sided with UCC on this issue.  The purpose of follow-form clauses is to allow an insured to obtain uniform coverage.  Each of the layers beneath paid the limits on an annualized basis and it is unlikely that UCC expected anything else from the fifth layer carriers.
The Court points to the limit of liability in the fifth layer policies that indicated that the limits were "$30,000,000 each occurrence and in the aggregate."  If $30 million was the most that could be paid on the entire policy why, UCC asks, did the parties bother to specify a per occurrence limit in an equal amount?  Continental and Argonaut offered no answer except arguing that the policy language was clear and extrinsic evidence of intention would confirm its position.
This was a rare case in which New York courts considered expert testimony in a coverage case.  UCC had submitted expert proof that annualization of limits was the universal custom of the industry.
Subscription Issue – Does a Short Extension of the Policy Create a Whole New Year of Coverage?
Did the two month extension of the Continental policy create a new "year" for policy limit purposes?   Continental argues (based on the annualization determination above), that UCC had a $5,000,000 policy limit — the limit normally applicable to a year — for the period December 1, 1975 to February 1, 1977; in other words, UCC essentially had to squeeze 14 months of losses into a 12-month limit. UCC counters that it has $10,000,000 in coverage for 24 months, even though it only paid 14 months of premiums.
UCC’s view as that it could enjoy the entire $10 million of coverage — 24 months of limits — to cover 14 months of losses. The Court was baffled on this one and decided that the matter could not be resolved on summary judgment.  It was sent back to consider (perhaps) extrinsic evidence or, if necessary, to secure a coin flip, to come up with a good answer.
Editor’s Note:  Two interesting issues, for sure.  On the annualization issue, the industry will have to craft more specific aggregate language on a going forward basis, if the intent is to have the aggregate cover an entire, multi-year policy period.
Appellate Division

03/03/11       Bond v. Progressive Insurance Company
Appellate Division, Third Department
Three Year Statute of Limitations Against Insurance Broker for Failure to Notify Carrier of Claim Does Not Accrue Until Judgment Is Entered Against Insured
Bond sued O’Rourke in a claim arising out of a 1999 accident between Bond’s snowmobile and O’Rourke’s car.  O’Rourke notified its Broker, HEG when sued in 2002.  HEG did not notify Progressive and therefore no defense was entered on O’Rourke’s behalf.  A default was entered. In April 2008, six years later, a final judgment was entered against the O'Rourkes awarding damages to plaintiff of approximately $1.2 million.  Progressive refused to pay.
The issue in the case was whether or not it was too late to sue HEG in 2008. The court found that the “errors and omissions” (negligence) claim against the broker was governed by a three year statute of limitations.  However, the claim does not accrue until there is actual damage and there is no damage until there is a judgment against the insured.
03/03/11        Claudio v. The Show Piers on the Hudson
Appellate Division, First Department
Service on Secretary of State Is Deemed Service on Insured; Insured’s Failure to Turn Process Over to Carrier Is Unexcused
The insured was served with a summons and complaint through the Secretary of State.  The contention that he did not actually receive does not justify a failure to notify the carrier.  It is deemed to be received upon service.
Editor’s Note:  The first in a string of four Burlington wins reported in this issue.
03/01/11       Travelers Insurance Company v. Mayen
Appellate Division, First Department
Appellate Court Does Not Disturb Finding of Fact in Framed Issue Hearing Establishing Hit-and-Run Accident

Uninsured Motorist carrier sought to stay UM arbitration claiming that a hit-and-run accident did not occur.  Under New York law, as a reminder, when an arbitration demand is made for UM benefits, the insurer has 20 days to seek that stay, or lose its right to claim that the matter is not subject to arbitration.
There was a framed issue hearing and the proof was that there was, in fact, a hit-and-run accident based on testimony of a witness.  Apparently, there had been a statement to the police that the accident arose from a “blown tire”, but the court attributed that statement to the fact that respondent was falling in and out of consciousness at the accident scene.
02/24/11       148 Magnolia, LLC, v. Merrimack Mutual Fire Ins. Co.
Appellate Division, First Department
Broker Allegedly Knew of Need for Builder’s Risk Coverage so E&O Claim Remains Viable
This was a  negligence and breach of contract against an insurance broker for failure to obtain adequate and appropriate insurance coverage.  There are issues of fact that preclude summary judgment.
There is some proof that the broker was aware of the policyholder’s intention to renovate the premises and the policyholder claimed that it relied on defendant's expertise as an insurance broker to obtain the appropriate policy.  The brokers admitted that they were aware that the policyholder was going to renovate the building and knew that a builders' risk policy was the appropriate policy under the circumstances.
Editor’s Note:  February was E&O Month in the intermediate appellate courts, it seems.  See the Axis Construction  and American Building Supply cases below.
02/22/11       Sirius American Ins. Co. v. Burlington Ins. Co.
Appellate Division, First Department
No Need to Disclaim Promptly if Party Is Not Insured; In any Event, Material Misrepresentations Void Policy
Sirius sought a determination that Burlington’s disclaimer was late and that Burlington should be precluded from denying coverage.  Burlington cross-moved for summary judgment and established that Artimus, the general contractor, was not named on the Burlington policy as a named insured or additional insured.  Artimus, through Sirius, did not rebut the presumption.
Even if successful, it would not have mattered because Burlington established that the policy was void ab initio because of material misrepresentations made by the named insured, KJS, in the application process to procure the insurance.  A representative from Burlington's underwriter established that Burlington would not have insured risks associated with KJS's undisclosed demolition work, particularly where the building exceeded four stories in height.  The representative's statements were corroborated by internal underwriting documentation.
02/22/11       Axis Construction Corp. v. O'Brien Agency, Inc.
Appellate Division, Second Department
In Agent E&O Claim, Question of Fact About “Course of Dealing”

An insurance agent or broker has a common-law duty to obtain requested coverage for a client within a reasonable amount of time, or to inform the client of the inability to do so.  However absent a specific request for coverage not already in a client's policy or the existence of a special relationship with the client, an insurance agent or broker has no continuing duty to advise, guide, or direct a client to obtain additional coverage.  How do you know when there is a “special relationship”?  There must be a “course of dealing over an extended period of time that would have put the reasonable broker on notice that their advice was being sought and relied upon.  Here, a question of fact was raised on that issue precluding summary judgment.
02/22/11       American Home Assurance Co. v. BFC Construction Corp.
Appellate Division, First Department
Notice by Named Insured Deemed to Be Notice by Additional Insured When Interests Are Not Adverse; Serious Delays Derail Sirius
The primary insured forwarded the summons and complaint to the insurer.  The court found that this notice constituted timely notice by the additional insured because the interests of the insured and the additional insured were not adverse.

Sirius was then found to have delayed in disclaiming coverage after it knew of the reasons for denial and thus lost its right to rely upon exclusionary language in the policy.

02/22/11       American Building Supply Corp. v. Petrocelli Group, Inc
Appellate Division, First Department
E&O Claim Against Broker Dismissed When Insured Had Opportunity to Review Policy Issued and Did Not

American Building Supply (“ABS”) sells construction materials to general contractors.  ABS sued its insurance broker, alleging that it was negligent (and breached its contract) by failing to secure the insurance coverage requested by ABS.  To establish liability, ABS must demonstrate there was a specific request to the broker for that coverage.
ABS requested specific coverages.  There may be issues of fact as to whether the inclusion of a cross-liability endorsement was outside of that which was requested.

There is, however, a presumption that a policyholder reads and understand a policy of insurance that is issued.  The presumption can be overcome if there is specific misrepresentation by a broker or if the broker fails to correct a misimpression regarding coverage, but no such proof is present in this case.

02/18/11       State Farm Mutual Auto. Ins. Co. v. Jaenecke
Appellate Division, Fourth Department
No Need to Disclaim Timely When Issue Is Whether or Not Injuries Incurred in Accident
Nothing new here, but worth remembering.  As a general rule, the requirements of timely disclaimer exist only where (a) the claim is for bodily injury or wrongful death, (b) the policy was issued or delivered in New York, (c) the accident occurred in New York, and (4)  the grounds for disclaimer are a breach of a policy condition or reliance upon an exclusion.  Here, the issue was whether or not the plaintiff was injured in an accident.  Since the existence or happening of an accident is part of the grant of coverage rather than an application of an exclusion or policy condition, a failure to timely disclaim cannot create coverage if none exists.
02/18/11Matter of NGM Insurance (Haak)
Appellate Division, Fourth Department
No Acceptable Excuse Offered for Two Year Delay in Giving Notice of Uninsured Motorists Claim so Coverage Is Lost
Haak is a police officer who was involved in an accident during a high-speed chase of a vehicle operated by Davis and owned by Snorac, a rental car company.  Haak’s car struck another police car during the chase and Haak suffered a facial fracture.  Davis was caught.  Some 22 months later Haak first notified NGM, his personal auto carrier, of the accident and potential uninsured claim.  Haak sued Davis and Snorac and then filed a UM demand with NGM.  NGM denied coverage based on late notice.
There was no excuse for the late notice.  Haak should have known shortly after the accident that Davis was uninsured.  Unlike the Court of Appeals case in Rekemeyer, where notice of accident was given shortly after it occurred, here Haak did not give notice of the accident for two years.  Accordingly, the carrier had no obligation to demonstrate prejudice.
02/15/11       Hanover Insurance Company v. Prakin
Appellate Division, Second Department
Carrier Walks Because Nobody Talks.  Insured’s Notice to Umbrella Carrier Was Three Years Late; Injured Party’s Notice Was Seven Months Late (After Learning of Umbrella Policy)

In January 2003, Gilatta was injured when the car he was driving collided with one owned by Bach (insured by State Farm).  Back and her husband Prakin also had a personal umbrella policy with Hanover, a homeowner’s policy with Citizens and an auto policy, on another car owned by Prakin, insured by Mass Bay.
In February of 2004, Gilatta sued Bach.  Bach and Prakin did not notify Gilatta about these other policies until March 2006 and it took Gilatta until October 2006 to notify Hanover and the others about the accident.  (Citizens and Mass Bay were also Hanover companies)
The three carriers then denied coverage based on late notice by the injured plaintiff and, in addition, that the homeowners policy wouldn’t cover the auto accident in any event and that there were exclusions in the auto policy that would remove coverage.
The Second Department affirmed the denial of coverage, the carriers not having notice for more than three years after the accident occurred.  No excuse was offered by the insureds for late notice.
While the injured parties had a separate right to give notice, they waited seven months to notify the carrier after they learned of Hanover’s existence.  There was no excuse offered for that delay.
02/15/11       County of Orange v. Reclamation Inc. of Kingston
Appellate Division, Second Department
Three Years Late Notice Is Pretty Darn Late; Coverage Lost
The County of Orange commenced a declaratory judgment action against Reclamation and Continental Casualty seeking a determination that both had an obligation to defend the County in a personal injury action brought by Weed.  The action arose from a one-car accident on a county-maintained road.
In 1997, the County had hired Reclamation to do road maintenance and repair work on the road and Reclamation agreed to defend and indemnify the County and provide it with insurance coverage as an additional insured.  The Weed accident occurred six years after the work was completed and the claim arose from ice or water accumulation on the roadway.
Continental established that it received notice three years after the County became aware of the accident and that notice was untimely.  The County failed to establish a good faith belief in non-liability to excuse its delay.
With respect to Reclamation, a non-insurer, it had been dismissed from the underlying lawsuit.  Accordingly, the accident did not arise out of its negligence and therefore the County could seek neither defense nor indemnity from Reclamation.

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

03/03/11       Chakrani v. Beck Cab Corp.
Appellate Division, First Department
When Defendants’ Expert Finds Range-of-Motion Limitations, There Is Issue of Fact Precluding Motion

Here, defendants’ examining orthopedic surgeon found range-of-motion limitations in plaintiff’s cervical and lumbar spines, as well as in his left foot and ankle.  This was sufficient to raise triable issues of fact warranting denial of defendants’ motion.

03/03/11       Solis v. Silvagni
Appellate Division, Third Department
When defendant was backing up, she hit plaintiff, causing plaintiff to ‘lock her knees’ to avoid being knocked down.  Plaintiff claimed injury to her right knee.  Defendant’s motion was partially granted with regard to the significant disfigurement and permanent loss of use categories, but denied with respect to the significant limitation of use and the 90/180-day categories.

On appeal, plaintiff’s 90/180-day claim is dismissed.  During her deposition, plaintiff admitted that she continued to work full time as a veterinary assistant.  The court found that the limitations alleged in her daily activities were indistinguishable from those which she admitted began after a prior accident.  Plaintiff’s claim in essence was based on limitations following the surgery on her right knee which was not was performed until 136 days after the accident.  As such, she was only prevented from performing substantially all her usual daily activities for 44 of the first 180 days after the accident.

On appeal, the court similarly granted defendants’ motion with respect to the permanent consequential and significant limitation of use categories because plaintiff failed to offer any quantitative evidence or qualitative assessment required to support claims under these categories.  Although plaintiff’s arthroscopic surgeon originally suspected a medial meniscus tear, an MRI and his observations during the surgery revealed significant degeneration, chondral defect and only a small lateral meniscus tear.  Defendant’s examining expert similarly found degenerative changes which pre-existed the accident.  Although the trial court noted this evidence, it found that because defendant’s expert did not address the significance of the small tear seen on the MRI or the cartilage defect reported, defendant did not meet her burden.  The appellate court disagreed, determining that defendant did not need to rely on her expert’s opinion to meet her burden because the MRI and plaintiff’s own surgeon’s records were insufficient to meet the requirements under the two categories of serious injury.  As plaintiff did not submit proof of specific range-of-motion limitations, and her surgeon as well as defendant’s expert found her range-of-motion to be full, she failed to meet threshold.

03/01/11       Browne v. Covington
Appellate Division, First Department
Cessation of Treatment with One Physician Is Not Gap in Treatment

On appeal, defendant’s cross-motion is granted to the extent of dismissing plaintiff’s 90/180-day claim, but denied with respect to plaintiff’s claims under the permanent consequential and significant limitation of use categories.  Defendant raised two arguments for the first time on appeal.  The court noted that not only were they not preserved, but they were also unavailing. 

As regards defendant’s argument that the time span between examinations by the same physician constituted a gap in treatment, the court found that the so-called gap was actually a cessation of that doctor’s treatment but not all treatment.  As such, there was no gap in treatment.  Nevertheless, the court also found that plaintiff’s affidavit sufficiently explained any gaps as being due to the cut-off of her no-fault benefits.

Also unpreserved and unavailing was defendant’s argument that the hand-written notes of plaintiff’s treating doctor had no probative value because they did not compare the examination findings to what would be normal.  The court rejected this argument because the doctor’s affirmation submitted in opposition to defendant’s cross-motion did set forth the normal ranges-of-motion for each allegedly injured body part and was sufficient to support her claims under the permanent consequential and significant limitation of use categories.

However, plaintiff’s claim under the 90/180-day category was dismissed.  Defendant submitted an affirmed report of an examination which took place two months after the accident.  Plaintiff’s subjective complaints were insufficient support and the affirmation of her treating doctor did nothing more than parrot the statutory language.

02/24/11       Tadesse v. Degnich
Appellate Division, First Department
Motion to Reargue Properly Granted Where “Controlling Principle of Law” Was Misapplied

A purely procedural issue:  Plaintiff’s motion to reargue was properly granted and, on reargument, the prior order was vacated, and affirmed on appeal.  The court agreed that a “controlling principle of law” was misapplied when the complaint was dismissed based on the gap-in-treatment argument that defendants raised for the first time in their reply papers and that plaintiff failed to address, even though she had raised other triable issues of fact.

02/22/11       Fraser-Baptiste v. New York City Transit Authority
Appellate Division, Second Department
“Implicitly” Addressing Findings in Defendants’ Experts’ Reports Is Deemed Sufficient

Defendants’ expert orthopedist, while finding various range-of-motion restrictions, concluded that those limitations were “exaggerated” because he did not observe such limitations in plaintiff’s movements before the examination began.  He also concluded that any abnormalities were degenerative and not causally related to the accident.  Plaintiff’s doctors, however, reported that her restrictions were the result of trauma and were causally related to the accident.  Although plaintiff’s doctors did not specifically address defendants’ reports, their findings that the injuries were traumatic and causally related “implicitly” addressed the defendants’ report and were sufficient.

02/22/11       Simpson v. Montag
Appellate Division, First Department
Work Loss Unsupported by Medical Evidence Does Not Support 90/180-Day Claim

Defendants’ doctors did not examine plaintiffs until eight years after the accident.  However, because they also relied on medical evidence contemporaneous with the accident, their conclusions that the injuries were unrelated to the accident were sufficient to support defendant’s motion.  In opposition, plaintiffs did not submit any medical evidence to support their 90/180-day claims but rather relied only on their own statements that they missed more than 90 days of work following the accident.  The statute requires that the injured person be prevented from performing “substantially all of the material acts” of their daily activities.  Merely missing work is not determinative in of itself.

02/22/11       Zelman v. Mauro
Appellate Division, Second Department
Plaintiff’s Medical Reports Fail to Raise an Issue of Fact

On appeal, the trial court was reversed because, even though plaintiff was entitled to rely on his unsworn medical records because defendants had submitted them in support of their motion, those reports did not raise a triable issue of fact and the complaint should have been dismissed.

02/22/11       Mugno v. Juran
Appellate Division, Second Department
Defendants’ Experts Fail to Address 90/180-Day Claim in Bill of Particulars or Examine Plaintiff’s Allegedly Injured Knee

The trial court properly dismissed defendants’ motion as they failed to meet their prima facie burden.  Their experts did not sufficiently address plaintiff’s 90/180-day claim set forth in her bill of particulars, nor did they review the MRI or examine plaintiff’s left knee, even though she also alleged that injury in her bill of particulars. 

02/22/11       Lewis v. John
Appellate Division, Second Department
Again, Defendants’ Experts Fail to Address 90/180-Day Claim in bill of Particulars

Defendants failed to meet their initial burden and their motion was properly dismissed where their experts, who did not examine plaintiff until 1½ years after the accident, did not relate any of their findings to the 90/180-day claim set forth in the bill of particulars.
Note:  We repeatedly see summary judgment motions fail precisely because some claim in a bill of particulars is not addressed by a defendant’s expert.  Often, those claims are made under the 90/180-day category and tend to be ignored.

02/22/11       Khavosov v. Castillo
Appellate Division, Second Department
Discrepancies in Explanations for Gap in Treatment Are a Matter of Credibility for the Trier of Fact

In opposition to defendant’s motion, plaintiff proffered the affidavit of his treating physician, whose contemporaneous examinations revealed significant cervical and lumbosacral range-of-motion restrictions, and MRI films, that showed herniations at C5-6 and C6-7.  The physician’s conclusion that the restrictions were permanent and causally related to the accident was sufficient to raise an issue of fact.  He also adequately explained plaintiff’s gap in treatment by affirming that plaintiff had reached maximum medical improvement from physical therapy.  Discrepancies between this explanation and that given by plaintiff during his deposition are a matter of credibility to be resolved by the trier of fact.

02/22/11       Tsamos v. Diaz
Appellate Division, First Department
Plaintiff’s Claim That He Is Still on “Light” Duty Needs Medical Support

Plaintiff was rear-ended by a taxi and claimed injuries under the permanent consequential and significant limitation of use categories, as well as under the 90/180-day category.  Defendants’ experts’ opinions, based on examination and review of MRIs, were that plaintiff’s range-of-motion was normal and that any limitations were due to other unrelated causes, including age-related degenerative condition.  In opposition, plaintiff submitted his doctor’s affirmation which reviewed the history of his treatment and included range-of-motion tests performed a few days after the accident and again four years later.  This affirmation conflicted with defendants’ expert’s opinion and therefore raised an issue of fact sufficient to defeat the motion with regard to the permanent consequential and significant limitation of use categories.

However, the trial court’s order was modified to grant defendants’ motion with regard to plaintiff’s claim under the 90/180-day category.  Plaintiff’s own deposition testimony indicated he missed only eight to ten weeks of work and plaintiff presented no concurrent medical evidence to support his claim.  Moreover, his unsupported claim that he was still on “light” duty did not raise an issue of fact.

02/18/11       Kellerson v. Asis
Appellate Division, Fourth Department
Needless Continuous Treatment Is Not Required to Establish Serious Injury; Supplemental Bill of Particulars Is Not a Disclosure Devise

Plaintiff was hit by defendant’s car while he was working in an automatic car wash tunnel.  He alleged injuries under the permanent consequential and significant limitation of use categories.  Plaintiff’s treating orthopedic surgeon concluded that plaintiff sustained a complex tear of the posterior horn of the right knee meniscus which required surgical repair, and a 15% permanent loss of use of the right leg.  This was sufficient to oppose defendant’s motion despite a gap in treatment.  Plaintiff’s orthopedic surgeon’s unchallenged explanation for the gap was that, even though he had discharged plaintiff from treatment, the potential for meniscal tear complications continued and, as he had predicted, later worsened and required surgery.  This was a reasonable explanation for the gap and treatment as unnecessary continuous treatment is not required in order to establish a serious injury.

Defendant also argued that plaintiff’s supplemental bill of particulars was improper because it was served after the filing of both the note of issue and defendant’s motion for summary judgment.  The court rejected this argument because a supplemental bill of particulars setting forth continuing special damages and injuries can be served at any time without leave, but not less than 30 days before trial, provided that, as here, the continuing damages are anticipated from the injuries set forth in the original bill of particulars and no new injuries or theories of liability are set forth.


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


ARBITRATION
02/25/11       John Bialecki, DC v. St. Paul Travelers Insurance
Arbitrator Veronica K. O’Connor, Erie County
Insurer Is Entitled to Corresponding Medical Record If Requested Timely Through Verification

The Applicant’s assignor was involved in a June 29, 2010, motor vehicle accident and commenced chiropractic care thereafter.  The Applicant sought reimbursement for treatment dates from July 8, 2010 through August 10, 2010.

The insurer, upon receipt of just the medical bills, requested verification in the form of the corresponding treatment record.  After no response was received a second request was sent.

The Applicant did provide a response to the verification request in the form of a refusal to comply with the following rationale:

I am unaware of any no-fault law requiring my office to submit records with claims.  It is my understanding the HCFA 1500 claim form submitted, justifies the services being performed.

My office does submit records on occasion when submitting for services.  For example: written narratives and/or invoice for products given to patients.  My office also submits records accompanied by a coping [sic] fee of $0.75 per page.

If there was a change to the no-fault law, requiring my office to submit records, with each claim; in order to be reimbursed.  Please forward it to my office as soon as possible….

The insurer responded that under 11 NYCRR §65-3.5(b) it was entitled to receive additional verification to establish proof of claim and was requesting same due to the assignor being involved in two motor vehicle accidents.  The insurer was attempted to verify that the treatment was related to the most recent accident.

The assigned arbitrator determined that the insurer had a right to such verification and that the claim was not ripe for determination unless and until the Applicant responded to the verification request.

02/25/11       Erie County Chiropractic v. ELRAC, Inc.
Arbitrator Thomas J. McCorry, Erie County
Undisputed Testimony from Applicant’s Biller Demonstrates 45 Day Rule Not Violated

Applicant sought reimbursement for an EMG study conducted on May 7, 2010, which was denied based upon violation of the 45 day rule.  The Applicant’s office administrator testified at the hearing that she entered the company’s billing and mailed out HICFA forms.  In this case, she testified that she entered the bill and mailed the requisite form on June 1, 2010.  When the payment was not received she mailed a second billing indicating that the bill was reprint.  The Applicant then received the insurer’s denial.

The assigned arbitrator determined that the office administrator’s undisputed testimony that the first bill was mailed was persuasive as to timely mailing and that the 45 day rule was not violated.

02/18/11       Applicant v. Farmington Casualty Co.
Arbitrator Veronica O’Connor, Erie County
Incident Did Not Arise Out of Use or Operation of Vehicle

The main issue in this arbitration was whether the insurer’s denial of the entire No-Fault claim based upon the Applicant’s injuries not arising out of the use and operation of a motor vehicle was appropriate.

The Applicant claimed he was involved in a December 9, 2009, motor vehicle accident.  The insurer sent the claim to SIU who returned a report concluding that Applicant’s injuries to his right leg and arms did not arise out of the use and operation of a motor vehicle.  The investigator reported that the Applicant was struck in an alley in Niagara Falls with the driver leaving the accident scene prior to the police arriving.

Upon further investigation, the Applicant claimed that the incident occurred while he was confronted in the alley by two men.  The Applicant reached into the car that allegedly struck him to obtain a cell phone when the operator of that vehicle pulled forward resulting in the injury.  Yet, the insured’s son, who was also at the scene when this incident occurred, advised the investigator that the Applicant was meeting the men for an alleged drug buy.  He claimed that the Applicant when making the buy grabbed the drugs and ran.  This resulted in the two men chasing the Applicant and assaulting him.  The injuries that ensued were not due to Applicant coming into contact with the vehicle as the insured’s son left with the vehicle while the assault was in progress.

The investigator also confirmed that the police report was not filed until two days later and there were no arrests or follow up investigation.

The assigned arbitrator determined, after hearing the Applicant’s testimony and reviewing the transcribed statements of all parties involved in this incident, that the insurer’s denial was justified.

LITIGATION

02/22/11       M.N. Dental Diagnostics, PC a/a/o Daniel Burgos v. GEICO
Appellate Division, First Department
Insurer Required to Submit Responsibility for Payment of No-Fault Benefits to Inter-Company Arbitration

The insurer was obligated to submit the insurance coverage issue of responsibility and obligation between multiple insurers to pay first-party benefits to inter-company arbitration pursuant to Insurance Law §5105(b).  The fact that the insurer denied the claim based upon the ground that no-fault benefits were payable by another insurer did not create a coverage issue obviating the requirement to submit the dispute to inter-company arbitration.

02/22/11       Westchester Med. Ctr. a/a/o Robert Hostetter v. New York Cent. Mut. Fire Ins. Co.
Appellate Division, Second Department
Insurer’s Denials Defective for Omission of Material Items and Failure to Establish Timely Mailing

The insurer’s cross-motion for summary judgment was improperly granted and the plaintiff’s summary judgment motion should have been granted as one of the insurer’s denials was defective due to omission of several material items.  Further, with regard to a second denial, the insurer did not submit sufficient evidence that the denial was mailed within 30 days.  Thus, the insurer did not establish its prima facie case.

02/14/11       GLM Med., PC a/a/o Marie Thadal v. State Farm Mut. Auto. Ins. Co. 
Appellate Term, Second Department
Insurer Not Required to Add Bold or Large Font to EUO Scheduling Letters

The insurer’s unopposed summary judgment motion based upon failure to appear for two scheduled EUOs should have been granted.  The motion was denied originally because the court determined that the EUO scheduling letters were not adequate.  The letters failed to delineate in a conspicuous manner, i.e., bold or large font, the location of the EUO.

The appellate term reversed and held that there is no such requirement in the No-Fault regulations.  Further, the insurer submitted sufficient evidence that the EUO scheduling letters were timely mailed and that the plaintiff failed to appear for the scheduled EUOs.

02/14/11       Infinity Health Products, Ltd a/a/o Marin Ligia Castro v. American Transit Ins. Co.
Appellate Term, Second Department
Affidavit Relying Upon Inadmissible Evidence Insufficient to Establish Entitlement to Summary Judgment

The insurer’s cross-motion for summary judgment based upon the assignor’s injuries not arising out of an insured incident was properly denied.  The special investigator’s affidavit relied upon a police report that was not proof submitted in admissible form which was insufficient to establish that the injuries did not arise out of an insured incident.

02/14/11       ARCO Med. NY, PC a/a/o Jermaine Rouse v. New York Cent. Mut. Fire Ins. Co.
Appellate Term, Second Department
Affidavit Must Address Claims in Instant Action to Support Motion for Summary Judgment

The insurer’s cross-motion for summary judgment based upon failure to appear for two scheduled IMEs was affirmed but the plaintiff’s summary judgment should not have been granted as its supporting affidavit referred to claims at issue in another action and this action.

02/14/11       Park Slope Med. And Surgical Supply, Inc. a/a/o Mikhail Vinitsky v. GEICO Ins. Co.
Appellate Term, Second Department
Insurer’s Cross-Motion Denied as Plaintiff Submits Sufficient Rebuttal Affirmation

The insurer’s cross-motion for summary judgment was properly denied as the plaintiff submitted a doctor’s affirmation demonstrating the existence of a question of fact regarding medical necessity.

02/14/11       Bath Med. Supply, Inc. a/a/o Larisa Vasilenko v. New York Cent. Mut. Fire Ins. Co.
Appellate Term, Second Department
Plaintiff Must Submit a Meaningful Rebuttal to a Peer Review to Survive Summary Judgment

The insurer’s motion for summary judgment should have been granted as plaintiff’s concession of timely denials established the insurer’s prima facie case entitlement to summary judgment.  Further, plaintiff’s failure to submit an affidavit in opposition from a health care provider that meaningfully referred to or rebutted the conclusions set forth in the peer review reports was fatal.


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


Of Property

02/17/11       US Underwriters Ins. Co. v. Greenwald
Appellate Division, First Department
Carrier Has Standing in Subrogation Even Where the Contract at Issue Was Executed by the Insured’s Spouse
US Underwriters brought this subrogation claim to recovery costs incurred as a result of a fire that occurred at an apartment rented by defendant Greenwald.   It appears that the lease in question was executed by defendant Greenwald and the wife of a principal of US Underwriters’ insured Joseph Armato.  Greenwald, it appears then subleased the apartment to defendant Corsell.

Greenwald initially moved to dismiss the instant subrogation claim on the basis that US Underwriters did not have standing because the contract at issue (the lease) was not executed with US Underwriters’ insured, but rather his spouse.  The court quickly dismissed this claim by holding that the Mr. Armato and his wife were co-lessors of the premises. 

Greenwald further argued that he had no liability because he was no longer a tenant at the premises on the date of the fire.  However, the Record before the Court indicated that the Armatos’ retained Mr. Greenwald’s security deposit and Greenwald continued to pay rent at the premises. Accordingly, the Court denied Mr. Greenwald’s motion on the basis that questions of facts existed as to his residency at the premises.

Finally, Greenwald maintained that as he was not at the premises at the time of the fire he could not be responsible for it.  Again, the Court found questions of fact as to whether there was conclusive evidence that he “played no part in the fire.”

Of Potpourri

02/22/11       Collado v. Cruz
Appellate Division, First Department
Tenant Has No Duty to Third Parties That Fall on Defective Sidewalks in Front of the Leased Premises; Indemnity Obligations, However, Are a Different Story
Plaintiff sustained injury when she fell as a result of a defective sidewalk in front of defendant Pichon III, Inc.’s store.  At the time of the incident, Pinchon leased the storefront from defendant Cruz.  Defendant Pinchon moved to dismiss the claim against it by arguing that it had no duty as a tenant.  The Court agreed and dismissed plaintiff’s direct claim against Pinchon.

However, the lease agreement required that Pinchon, as the tenant, repair and/or replace the sidewalk in front of the store.  Accordingly, Cruz was granted a conditional order of contractual indemnification against Pinchon which is dependent upon plaintiff’s ability to establish liability against Cruz.  

02/17/11       Mak v Siverstein Props., Inc.
Appellate Division, First Department
Maintenance Agreement Seeking Indemnity for One’s Own Negligence Is Barred by Application of GOL 5-322.1
Plaintiff commenced the instant Labor Law claim against Silverstein (as the property manager) and 120 Broadway Holdings (as the owner).  In response, Silverstein moved for summary judgment dismissing plaintiff’s claims under Labor Law 200/Common Law Negligence.  This motion was denied where, as here, the Court ruled that questions of fact existed relative to whether Silverstein created, or had notice of, the allegedly defective condition which caused plaintiff’s injury. 

Notably, however, the Court dismissed Silverstein’s motion for contractual indemnification against 120 Broadway on the basis that the management agreement was in violation of General Obligations Law 5-322.1.  In addition, due to the plain language of the management agreement, the Court also noted that Silverstein had no obligation to defend/indemnify 120 Broadway because the indemnity agreement only required indemnity for Silverstein’s violation of the agreement or gross negligence.  Neither requirement was found in this case.

Peiper’s Point  - Notably, agreements governing the “maintenance” of a building (herein the maintenance agreement) specifically fall within the statutory protections offered by GOL 5-322.1.

02/22/11       Zalot v Zieba
Appellate Division, Second Department
Mere Speculation as to the Cause of Decedent’s Fall Is Fatal to the Estate’s Labor Law 240(1) Claim
Plaintiff commenced the instant action on behalf of decedent.  Decedent expired after an accident which occurred presumably in the course of his employment.  Here, however, the accident was unwitnessed.  As such, plaintiff could not definitively state how the accident occurred.  In turn, the Second Department noted that the plaintiff was unable to establish that defendant had any liability under the Labor Law. 

In so holding, the Second Department noted that "[s]peculation, guess and surmise . . . may not be substituted for competent evidence, and where . . . there are several possible causes of [one] accident, one or more of which a defendant is not responsible for, a plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which the defendant was responsible.”  The Second Department went on to hold that “[h]ere ‘[s]ince it is just as likely that the accident could have been caused by some other factor, such as a misstep or loss of balance, any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation’.”  Accordingly, defendant’s motion for summary judgment was granted and plaintiff’s claim dismissed.

 

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


02/28/11       Cohen-Esrey Real Estate Servs., Inc. v. Twin City Fire Ins. Co.
United States Court of Appeals for the Tenth Circuit
Prior Knowledge Conditions in Claims-Made Policy – Kansas
Cohen-Esrey managed the Quail Ridge Apartments in El Dorado, Kansas, for its owner HJS Realty, LLC.  The Department of Housing and Urban Development [“HUD”] subsidized the rent of qualifying Quail Ridge tenants to the extent that it exceeded 30% of the tenant’s income.  Brenda Phillips was Cohen-Esrey’s on-site property manager at Quail Ridge from March 19, 2001 until September 15, 2006.  Phillips was responsible for the day-to-day operations of the property, including the submission to HUD of documents reflecting who the tenants were and their incomes.

From 2004 to 2006, Phillips conducted a fraudulent scheme to embezzle money from Quail Ridge.  Essentially, Phillips would place unqualified tenants in the apartments, falsify the lease and HUD verification forms and kept the amount paid by the unqualified tenant in excess of the subsidized rental rate.  Notably, this was not the first misconduct by Phillips while employed by Cohen-Esrey.  In September 2004 she used the company account to make a personal purchase and then denied the misconduct.  Cohen-Esrey required her to repay the money and reprimanded her for her conduct in January, 2005.

The embezzlement scheme was detected when Phillips was out sick and her replacement was asked for a key from someone who claimed to be a tenant but was not on the rent roll. Soon thereafter Cohen-Esrey notified its insurance carriers.  On September 28, 2006, Hartford Fire Insurance Company was provided notice under its crime policy and Nutmeg Insurance under its error-and-omissions policy. Nutmeg was informed that the circumstances may give rise to a claim. Notice was not provided to Twin City until November 1, 2006 when the Twin City errors-and-omissions policy replaced the Nutmeg policy.

Twin City denied coverage taking the position that there was no coverage because of the failure to satisfy the policy’s condition precedent that at the policy’s inception Cohen-Esrey was not aware of a “Wrongful Act, fact, circumstance or situation that it knew or could reasonably have foreseen might result in a Claim under this policy.”

After the denial, Cohen-Esrey filed suit alleging claims for breach of contract, bad faith refusal to pay, and money owed/reimbursement.  Twin City moved for summary judgment and the district court agreed with Twin City.

The Tenth Circuit looked to the law of Kansas and noted that the Kansas Supreme Court applies a two-prong subjective-objective test to determine whether a prior-knowledge condition has been satisfied.  The subjective prong is whether the insured insured knew of certain facts.  The objective prong is whether such facts could reasonably have been expected to give rise to a claim.  The objective prong in this case being whether Cohen-Esrey could reasonably have foreseen [that the facts known to it] might result in a Claim under the policy.

In agreeing with the district court the Tenth Circuit noted that Cohen-Esrey knew that Phillips had defrauded HUD and HJS and that she had previously been caught engaging in theft and dishonesty and yet had not been fired or subjected to stricter oversight.  The court stated that certainly any insured could reasonably have foreseen that these facts might result in a claim under the policy.  The court also stated that only if a reasonable insured would have concluded that Cohen-Esrey had a sure and obvious defense to a negligent-retention and supervision claim – a defense so sure and obvious that a victim would very likely not bother to make the claim – would the policy’s condition precedent be satisfied.  It would not be satisfied simply by a showing that a claimant would likely lose.  Twin City’s policy required only a reasonable foreseeability that a claim might result.
Once again, critical to the court’s analysis was the language of the policy.
01/12/11       Capitol Specialty Ins. Co. v. Industrial Electronics, LLC
United States Court of Appeal for the Sixth Circuit
No Duty to Defend Trade Secrets Lawsuit – Kentucky
An insurer has no defense obligations in a lawsuit accusing an insured company of using confidential information an employee allegedly took from a former employer, the 6th U.S. Circuit Court of Appeals has ruled. The policy's "breach of contract" exclusion precluded coverage because the claims arose out of the employee's alleged violation of a confidentiality agreement with his former employer, the panel said.

Yuriy Osyka worked for Industrial Control Solutions [“ICS”], a Kentucky corporation engaged in the repair of industrial electronic equipment.  Osyka entered into employment agreement with ICS in May 2002 and March 2003.  The agreements contained, among other things, non-compete and confidentiality provisions.  These provisions prohibited Osyka from competing with ICS or disclosing ICS’s confidential information or trade secretes during his employment and for a period of two years from the end of his employment.

Osyka had a dispute with ICS and left his employment with ICS.  Osyka was later hired by Indel, a newly formed company that was also in the electronics repair business. ICS claims that after Osyka joined Indel he disclosed customer and pricing lists and other proprietary information from ICS computer files, and that Indel used this information to its advantage and to the detriment of ICS. 

Indel put its insurer Capitol Specialty [“Capitol”] on notice of the claim and Capitol agreed to defend Indel and Osyka in the underlying action under a reservation of rights.  Capitol then filed suit in the district court seeking a declaration that it had no duty to defend or indemnify Indel and Osyka.  Capital later moved for summary judgment arguing that the underlying action fell outside the Policy’s coverage for “personal and advertising injury” which, all parties agreed was the only possible basis for coverage.  In addition, Capitol argues that even if coverage were triggered under the policy various exclusions applied.  Specifically, the exclusions for breach of contract and infringement of copyright, patent, trademark or trade secret. 

The Sixth Circuit focused primarily on the Breach of Contract Exclusion which excludes coverage for personal and advertising injury “arising out of a breach of contract, except an implied contract to use another’s advertising idea in your advertisement”.  The court determined that the language of this exclusion is clear and unambiguous.  Because nothing in the record suggested that Indel and/or Osyka had an implied contract with ICS, and ICS’s customer and price lists cannot reasonably be considered an “advertising idea”, the only issue is whether ICS’s claims arose out of a breach of contract. 

As is the case in most jurisdictions the court pointed out that the Kentucky Court of Appeals concludes that the phrase “arising out of” should be construed expansively.  Given this broad meaning of the phrase the Court held that ICS’s claims against both Osyka and Indel arose directly from Osyka’s breach of contract, i.e., Indel’s use of ICS’s proprietary and trade secret information – the basis of the claims “grew out of, or flowed from, Osyka’s dissemination of such information to Indel. 

Indel attempted to argue that the exclusion was not applicable to it because ICS sued only Osyka for breach of contract – not Indel.  The Court disagreed stating that Indel’s argument lacked merit because the language of the exclusion is not that limited.  The exclusion required only that the injury “arise out of a breach of contract.  The Court held that this condition would be satisfied whether Osyka, Indel, or some other party breach the contract, so long as the asserted claims arose out of the breach.

Editor’ Note:  This case was brought to our attention by Steven Fox, a Buffalo, New York attorney.

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

 

02/18/11       Fox v. Allstate Ins. Co.
Supreme Court, Queens County
Question of Fact as to Whether Two-Year Contractual Limitation Estopped the Insured from Commencing a Lawsuit Against Her Insurer
Plaintiff sustained water damage to her premises.  The insurance policy issued by defendant contained a condition which provided that “[n]o suit or action may be brought against us unless there has been full compliance with all policy terms. Any suit or action must be brought within two years after the inception of loss or damage.” 

Upon being served with plaintiff’s complaint, defendant moved to dismiss based on plaintiff’s failure to commence the action within two year.  In opposition, plaintiff submitted an affidavit wherein she acknowledged that she sustained a loss on October 25, 2005.  The affidavit asserted that she notified defendant of her water damage loss two days after it occurred.  Thereafter, defendant promised that it would repair the premises.  Defendant never asked her for a sworn statement of proof of loss but rather indicated that same was not necessary as it was still doing its investigation.  Thereafter, between January 16, 2008 and February 7, 2008, she received notices from defendant that it was in the process of finally investigating her loss and would inform her of the status of the claim and payment after the investigation was concluded.  Eventually, plaintiff received two checks one in 2005 and one in 2008, in partial payment of the claim, neither of which indicated that they were final in nature.  Accordingly, Plaintiff asserted that a question of fact existed as to whether the defendant waived its rights or is estopped from relying upon the two-year contractual limitation. 

In considering plaintiff’s waiver and estoppel argument, the court found a question of fact as to whether defendant, by its conduct, lulled plaintiff into sleeping on her rights under the insurance contract.  The court also found a question of fact as to whether plaintiff was estopped from exercising her rights due to the conduct of the insurer in having issued two checks over a three year period in partial payment of the claim and in continuing investigation up to at least June 2009 without a final determination.

02/18/11       Matter of Am. Country Ins. Co. v. Motor Veh. Acc. Indem. Corp.
Supreme Court, New York County
Court Refused to Vacate Arbitration Award Where Petitioner Failed to Meet Its Burden of Establishing That It Complied with all Applicable Statutes When It Cancelled the Policy at Issue
American Country Ins. Co. (“American Country”) at one time insured a vehicle registered to non-party Work for Freedom, Co., Inc.  Thereafter, the vehicle was involved in an accident.  After claims were filed with American Country, it notified its insured that the insurance policy had been terminated for non-payment of premiums prior to the date of the accident. 

Thereafter, the MVAIC commenced an arbitration.  When American Country received notice of the proceeding, it contacted MVAIC’s attorney and advised that there was a lack of coverage.  Assuming the arbitration would be cancelled, American Country never appeared.  Due to a lack of opposition, the arbitrator determined that the driver of the vehicle was a covered person and indicated that no evidence of cancellation was provided. 

After receiving the decision, American Country informally contacted the arbitrator in an attempt to “resolve the decision”.   Unable to resolve the matter, American Country commenced this action seeking an order vacating the arbitration and a decision that the arbitrator exceeded her authority when she rendered the award in violation of the law. 

In affirming the arbitrator’s award, the court determined that, pursuant to the Vehicle and Traffic law, an insurer must adhere to certain notice requirements prior to terminating an insurance contract.  Among the requirements, an insurer is required to keep records of the notice of termination along with the certificate of mailing.  As the arbitrator that issued the award was not provided any evidence of cancellation, American Country failed to meet its burden of establishing that it complied with all applicable statutes.

02/14/11       Renner v. Security Mut. Ins. Co.
Supreme Court, New York County
Cabana Rented by Insured Every Summer Not a “Premises Occasionally Rented” as That Term Was Used in the Policy
In the summer of 2005, plaintiff fell and suffered injuries while visiting a beach cabana rented by defendant E. Patricia Dolan (“Ms. Dolan”).  Subsequently, Ms. Dolan sought coverage for plaintiff’s lawsuit, which alleged she was negligent, under her homeowners policy, issued by Defendant Security Mutual Insurance Company (“Security Mutual”).  Security Mutual disclaimed coverage based on, among other things, an exclusion for liability resulting from premises other than the insured premises. 

Under the “Personal Liability” and “Medical Payments to Others” categories, the policy issued by Security Mutual specifically excluded coverage if liability “result[ed] from premises owned, rented or controlled by an insured other than the insured premises…”  Further, “insured premises” was defined as follows:  “[i]f you own the one to four family house described in the Declarations, the insured premises means that house, related private structures and grounds at that location.”  Per Ms. Dolan’s policy, the cabana was not listed as the insured premises. 

Plaintiff, who successfully obtained a default judgment against Ms. Dolan, argued that the policy further provided that “[f]or Personal Liability and Medical Payments to Others coverage, only, insured premises also include the following:…that part of any premises occasionally rented to an insured or other than business purposes.”  As the cabana was rented to the insured at the time of the accident, it qualified as an insured premises. 

According to the court, the issue was whether the phrase “premises occasionally rented to an insured” was ambiguous.  The court determined that it was not and held that Ms. Dolan’s systematic rental spanning decades could not be characterized as “occasional.”  Thus, the cabana was not an insured premises under the policy. 

02/10/11       Nunez v. U.S. Underwriters Ins. Co.
Supreme Court, Queens County
Lack of Smoke Detectors on First Floor and in Basement Not Material to Trigger Warranty Contained in Policy
Defendant insured plaintiff’s store for a one-year term.  The policy provided that defendant would not pay for losses or damage caused by or resulting from fire, if, prior to the fire, the insured knew of any suspension or impairment in any protective safeguard listed in the Schedule and failed to notify defendant of that fact. 

On September 18, 2009, a fire started on the second floor of plaintiff’s store.  As a result, plaintiff sustained water damage from extinguishing the fire.  Following the fire, defendant retained an inspector to investigate the damage.  The inspector noted that plaintiff had no smoke detectors on the first floor or in the basement.  Accordingly, defendant denied coverage. 

In this matter, the court determined that the protective safeguard provision constituted a warranty under Insurance Law section 3106(a).  Notably, 3106(a) provides that a “breach of a warranty shall not avoid an insurance contract or defeat recovery thereunder unless such breach materially increased the risk of loss, damage or injury within the coverage of the contract.”  Thus, according to the court, only if the lack of a smoke detector was material could protective safeguard provision be used as a basis for denial of coverage. 

In considering both parties arguments, the court held that plaintiff successfully established that the fire occurred on the second floor and the lack of smoke detectors on the first floor and the basement was not material as fire and smoke never entered these sections of the premises.  However, the court held that there was a question of fact as to whether plaintiff made a material misrepresentation on her application for insurance by stating that she had operational smoke detectors in the premises. 

02/7/11         Main St. Am. Group v. Everest Natl. Ins. Co.
Supreme Court, Rockland County
Certificate of Insurance Not Sufficient to Raise Question of Fact as to Plaintiff’s Status as an Additional Insured
Plaintiff, Upstate Farming, Inc., and its insurer sought a determination that Upstate was an insured under a policy issued by defendant.  In support, Upstate presented a certificate of insurance indicating such coverage.  The certificate was not issued by defendant’s agent.    

The court reiterated the settled rule that insurance coverage extends only to named entities and/or individuals defined as insured parties under the relevant terms of the policy.  A certificate of insurance is merely evidence of a contract for insurance, not conclusive proof that the contract exists, and not, in and of itself, a contract to insure.  Standing alone, the certificate was not sufficient to raise a question of fact.

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

“RED FLAGS” OF WORKERS COMPENSATION FRAUD

          Nearly 10 years ago, the National Insurance Crime Bureau (NICB) singled out Workers Compensation insurance fraud as the fastest growing insurance fraud category in the nation, costing the industry in excess of $5 Billion per year.  No doubt this figure has continued to rise for what many people consider to be a “victimless” crime.

          Listed below are some common “red flags” or possible indicators of fraudulent Workers’ Compensation claims:

  • An injury is reported late on Friday or early on Monday.
  • The injury was not witnessed and the details are unclear or inconsistent.
  • The claim is by a new employee with an undeveloped or limited employment history.
  • Injury occurs near layoff, termination, or disciplinary action.
  • A disgruntled employee is involved.
  • The mechanics or site of the injury do not match up with the employee’s usual job activities and location.
  • The employee has no health insurance to pay for medical expenses or treatment.
  • The employee has pre-existing medical conditions or prior similar injuries.
  • The employee has a history of frequent unexcused absences from work.
  • The doctor’s note or medical forms appear to be forged, altered or copies.
  • Employee has financial problems/hardships.
  • Employee does not answer the phone and avoids contact.
  • Employee misses medical, therapy and other doctor appointments.
  • Incident occurs prior to strike, plant closing, or job completion.
  • Injured worker is in line for early retirement.
  • Injured worker refuses or delays diagnostic tests multiple times.
  • Inconsistent incident reports, or tips from co-workers, do not support the claim.
  • Delayed reporting of the accident and/or injuries to worker.

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

02/28/11       Ferrell Gas, Inc. v. Yeiser
Colorado Supreme Court

Defendant Entitled to Set Off Entire Payment from Homeowner’s Insurer to Plaintiff
When Ferrellgas failed to deliver propane timely to Yeiser’s vacation home, the pipes froze and burst, leading to $212,071.94 in damage. Yeiser was reimbursed this expense by Farmers Insurance Group, her homeowner’s insurance carrier, which then recovered $172,657.55 via a subrogation action against Ferrellgas. When Yeiser sued Ferrellgas, the trial court denied Yeiser’s motion in limine to exclude evidence concerning the payment from Farmers pursuant to the collateral source rule. It held that payment was not a collateral source because Ferrellgas has contributed payment to Yeiser via the subrogation settlement. Yeiser obtained a jury verdict of $314,323.21, from which the trial court set off the $212,071.94 amount paid by Farmers. The Supreme Court affirmed the trial court’s ruling, holding that Farmers’ subrogation interest in the $212,071.94 paid to allowed it to stand in Yeiser’s shoes with respect to that amount. Accordingly, Ferrellgas’ settlement with Farmers extinguished Yeiser’s right to seek the $212,071.94 from Ferrellgas, and was therefore not a collateral source.
Submitted by: Jennifer Johnsen, Paul Greene, and Nick Farr, Gallivan, White & Boyd, PA
02/16/11       Trishan Air, Inc. v. Federal Insurance Company
Ninth Circuit Court of Appeals
Ninth Circuit Requires Insured to Strictly Comply with Insurance Policy
Warranties, Denies them the Benefit of the Substantial Compliance Doctrine
Trishan Air sued Federal Insurance for denying coverage under an aviation insurance policy after Trishan had an accident involving one of its corporate jets. Federal denied coverage because the co-pilot had not undergone the training mandated by the policy’s pilot training requirement. Trishan responded by arguing that its co-pilot had substantially complied with the training requirement. The court held that the pilot training requirement was a “warranty” and not a merely a “condition” to coverage because it was “an element of the fundamental risk insured.” The Ninth Circuit followed California Appellate Court precedent in holding that although “substantial compliance” can be sufficient to satisfy a condition to coverage, warranties require “strict compliance.” The court justified its holding by stating that “[a]n insurance company has a right to limit the coverage of a policy issued by it and when it has done so, the plain language of the limitation must be respected. The Ninth Circuit feared that adopting Trishan’s position and allowing “substantial compliance” to satisfy insurance warranties would allow insured’s to assert that “substitute performance, based on the insured’s subjective selection, would be sufficient to receive coverage.”
Submitted by: Michael D. O’Connell, Michelle L. Hummer, and Steven J. Zakrzewski -
REPORTED DECISIONS
State Farm Mutual Auto. Ins. Co. v. Jaenecke

Appeal from an order and judgment (one paper) of the Supreme Court, Niagara County (John Lane, J.H.O.), entered February 24, 2010. The order and judgment declared, upon a jury verdict, that plaintiff is not obligated to defend or indemnify defendants Zachary J. Jaenecke and Peter J. Jaenecke.

PILARZ LAW FIRM, BUFFALO (MICHAEL PILARZ OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

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

Memorandum: Plaintiff commenced this action seeking a declaration that it is not obligated to defend or indemnify Zachary J. Jaenecke and Peter J. Jaenecke (defendants) in the underlying personal injury action commenced by defendants Gary L. Coons and Ann M. Coons. We note at the outset that the challenge by defendants to that part of the order and judgment declaring that "any bodily injury or damage to Gary L. Coons and Ann M. Coons was not caused by an accident resulting from the ownership, maintenance or use of the Jaenecke vehicle" is not properly before us. "An appeal from only part of an order [and judgment] constitutes a waiver of the right to appeal from other parts [thereof]" (Johnson v Transportation Group, Inc., 27 AD3d 1135, 1135). Here, defendants limited their notice of appeal to that part of the order and judgment denying their motion during trial seeking a declaration that plaintiff was obligated to defend and indemnify them based on plaintiff's alleged failure to comply with Insurance Law § 3420 (d), and thus our review is limited to that issue (see Matter of Violet Realty, Inc. v City of Buffalo Planning Bd., 20 AD3d 901, 903-904, lv denied 5 NY3d 713). We conclude that Supreme Court properly denied the motion and determined that plaintiff "was not required by Insurance Law § 3420 (d) to issue a disclaimer in a timely fashion because its denial of coverage was based upon a lack of coverage and not a policy exclusion" (Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698, 699).


Matter of NGM Insurance (Haak)


Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered April 13, 2010. The order granted the application of petitioner for a permanent stay of arbitration.

VIOLA, CUMMINGS & LINDSAY, LLP, NIAGARA FALLS (MICHAEL J. SKONEY OF COUNSEL), FOR RESPONDENTS-APPELLANTS.
BROWN & KELLY, LLP, BUFFALO (CAROLYN M. HENRY OF COUNSEL), FOR PETITIONER-RESPONDENT.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Douglas E. Haak (respondent) is a police officer who was involved in an accident during a high-speed chase of a vehicle operated by John J. Davis, Jr. and owned by Snorac, Inc. (Snorac), a rental car company. Respondent's vehicle struck another police vehicle while pursuing Davis, causing respondent to sustain, inter alia, an orbital fracture. Other officers continued the chase, and Davis later crashed into a building and was apprehended after he fled on foot. Approximately 22 months after the incident, respondent notified petitioner, his automobile insurance carrier, of his accident and potential claim for supplementary uninsured/underinsured motorist (SUM/UM) benefits. Respondent and his wife, respondent Carmela Haak, simultaneously commenced a personal injury action against Davis and Snorac. Petitioner disclaimed coverage on the ground that respondent failed to provide notice of the claim "as soon as practicable," as required by the policy, prompting respondents to serve a notice of intention to arbitrate. Petitioner thereafter commenced this proceeding seeking a permanent stay of arbitration. Supreme Court properly granted the petition.
It is well settled that "[t]he requirement that an insured notify its liability carrier of a potential claim as soon as practicable' operates as a condition precedent to coverage" (White v City of New York, 81 NY2d 955, 957). "[I]n the SUM[/UM] context, the phrase as soon as practicable' means that the insured must give notice with reasonable promptness after the insured knew or should reasonably have known that the tortfeasor was underinsured' " (Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 474). Whether an insured has given notice as soon as practicable should be determined on a case-by-case basis, taking into account all of the relevant circumstances (see Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487, 494-495). Factors to consider include the seriousness and nature of the insured's injuries, and the extent of the tortfeasor's coverage (see id. at 493; Matter of Allstate Ins. Co. [Earl], 284 AD2d 1002, 1004), as well as "the time within which an insured's injuries manifest themselves" (Unwin v New York Cent. Mut. Fire Ins. Co., 268 AD2d 669, 670).
Here, we conclude that respondent's notice of the potential claim, given almost two years after the accident, was untimely under the circumstances of this case. It was obvious from the outset that respondent had sustained a serious injury within the meaning of Insurance Law § 5104 (see § 5102 [d]), and respondent knew or should have known shortly after the accident that Davis was uninsured. Respondents contend that respondent was not required to provide notice of the claim until the court in the underlying personal injury action had granted Snorac's motion for summary judgment dismissing the complaint against it based upon the Graves Amendment (49 USC § 30106), which generally exempts rental car companies from the vicarious liability provisions of Vehicle and Traffic Law § 388. Until then, respondents assert, they did not know that the Davis vehicle was uninsured or underinsured. We reject that contention. The Graves Amendment unequivocally applies to Snorac unless Davis's use of the vehicle was not "during the period of the rental or lease" (49 USC § 30106 [a]). In our view, that information could have been ascertained by respondents well before the court granted Snorac's motion in the underlying action and, in any event, there is no indication in the record before us that respondents made any efforts to obtain such information. We thus conclude that respondents failed to meet their burden "of establishing a reasonable excuse for the [almost] two-year delay in giving notice" (Matter of State Farm Mut. Auto. Ins. Co. [Cybulski], 1 AD3d 905, 906).
Finally, we reject respondents' further contention that the decision of the Court of Appeals in Rekemeyer (4 NY3d at 475-476) requires that petitioner show prejudice before disclaiming coverage. In Rekemeyer, the insured provided timely notice of the accident but not the claim, and the insurer thus had an opportunity to investigate the accident. Here, in contrast, respondent provided notice of the accident at the same time that he provided notice of the claim, approximately 22 months after the accident occurred (see Matter of Progressive Northeastern Ins. Co. [Heath], 41 AD3d 1321, 1322). Thus, the limited no-prejudice rule set forth in Rekemeyer does not apply.
Hanover Insurance Company v. Prakin

Alan B. Brill, P.C., Suffern, N.Y. (Joshua Douglass and Sheila S.
Rosenrauch of counsel), for appellants Stuart Prakin and Shari L.
Bach.
Birbrower & Beldock, P.C., New City, N.Y. (Jeffrey B.
Saunders of counsel), for appellants Joseph
T. Gliatta and Lorriane Gliatta.
Callan, Koster, Brady & Brennan LLP, New York, N.Y.
(Michael P. Kandler of counsel), for
respondents.

DECISION & ORDER
In an action for a judgment declaring that the plaintiffs Hanover Insurance Company, Citizens Insurance Company of America, and Massachusetts Bay Insurance Company are not obligated to defend and indemnify the defendants Stuart Prakin and Shari L. Bach in an underlying personal injury action entitled Gliatta v Bach, pending in the Supreme Court, Rockland County, under Index No. 1047/04, the defendants Stuart Prakin and Shari L. Bach appeal, and the defendants Joseph T. Gliatta and Lorraine Gliatta separately appeal, from (1) an order of the Supreme Court, Rockland County (Nelson, J.), dated September 17, 2009, which granted the plaintiffs' motion for summary judgment, and (2) a judgment of the same court entered January 13, 2010, which, upon the order, is in favor of the plaintiffs and against the defendants declaring that the plaintiffs are not obligated to defend or indemnify Stuart Prakin or Shari L. Bach in the underlying personal injury action. The notice of appeal from the order is deemed also to be a notice of appeal from the judgment (see CPLR 5501[c]).
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiffs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[c]).
On January 2, 2003, the defendant Joseph T. Gliatta was injured when the vehicle he was driving was involved in an accident with a Jeep Wrangler owned and operated by the defendant Shari L. Bach. Bach's vehicle was insured by State Farm Insurance Company. Bach and her husband, the defendant Stuart Prakin (hereinafter together the insureds), also maintained a personal umbrella insurance policy with the plaintiff Hanover Insurance Company (hereinafter HIC), a homeowners insurance policy with the plaintiff Citizens Insurance Company of America (hereinafter Citizens), and an automobile insurance policy, covering another vehicle owned by Prakin, with the plaintiff Massachusetts Bay Insurance Company (hereinafter Mass Bay).
Joseph T. Gliatta and his wife (hereinafter together the injured defendants) commenced a personal injury action against the insureds in February 2004.
The insureds did not notify the injured defendants of the existence of the HIC personal umbrella insurance policy until March 2006. On or about October 25, 2006, approximately three years and nine months after the accident date, the insureds, by their attorney, notified HIC in writing of the accident. Hanover Insurance Group, writing on behalf of its affiliates HIC, Citizens, and Mass Bay (hereinafter collectively Hanover), disclaimed coverage of the accident under all three policies, both on the basis that it had not been timely notified of the accident by either the insureds or the injured defendants and that, even though coverage was not requested under either the homeowners policy or the automobile policy, the accident was excluded from coverage under both of those policies.
Hanover then commenced this action, seeking a declaration that it is not obligated to defend or indemnify Prakin or Bach in the underlying personal injury action. Hanover moved for summary judgment, and the defendants opposed the motion on the grounds that the motion was premature and that, in any event, questions of fact existed as to when Hanover was notified of the accident. The Supreme Court granted Hanover's motion, and judgment was entered in Hanover's favor declaring that it has no obligation to defend or indemnify Prakin or Bach in the underlying action. We affirm.
Hanover established, prima facie, its entitlement to judgment as a matter of law by demonstrating that the insureds did not provide it with notice of the occurrence until more than three years after the accident occurred (see Key Bank U.S.A., N.A. v Interboro Ins. Co., 65 AD3d 521; see also Hanson v Turner Constr. Co., 70 AD3d 641; Bauerschmidt & Sons, Inc. v Nova Cas. Co., 69 AD3d 668; Ponok Realty Corp. v United Natl. Specialty Ins. Co., 69 AD3d 596; 120 Whitehall Realty Assoc., LLC v Hermitage Ins. Co., 40 AD3d 719; Felix v Pinewood Bldrs., Inc., 30 AD3d 459; Steinberg v Hermitage Ins. Co., 26 AD3d 426). In opposition, the insureds submitted only the affirmation of their attorney, in which he asserted, without submitting any additional supporting evidence, that notice had been given to Hanover at some earlier point. Since the insureds offered no excuse for the delay in notifying Hanover, the Supreme Court properly concluded that the notice given by the insureds to Hanover was untimely.
While Insurance Law § 3420(a)(3) provides an injured party with an independent right to provide an insurance carrier with written notice of an accident, to satisfy the notice requirement of an insurance policy, the injured party has the burden of proving that he or she, or counsel, acted diligently in attempting to ascertain the identity of the insurer, and thereafter expeditiously notified the insurer (see Becker v Colonial Coop. Ins. Co., 24 AD3d 702, 706; Trepel v Asian Pac. Express Corp., 16 AD3d 405, 406; American Home Assur. Co. v State Farm Mut. Auto. Ins. Co., 277 AD2d 409, 410; Eveready Ins. Co. v Chavis, 150 AD2d 332, 333). Here, the injured defendants failed to explain their seven-month delay in notifying Hanover of the accident, despite uncontroverted proof that they were informed of the existence of the HIC umbrella insurance policy in March 2006.
The defendants' contention that Hanover's motion for summary judgment was premature is also without merit. The defendants failed to offer any evidentiary basis to suggest that discovery may lead to relevant evidence. The mere hope and speculation that evidence sufficient to defeat the motion might be uncovered during discovery is an insufficient basis upon which to deny the motion (see CPLR 3212[f]; Essex Ins. Co. v Michael Cunningham Carpentry, 74 AD3d 733; Peerless Ins. Co. v Micro Fibertek, Inc., 67 AD3d 978, 979; Kimyagarov v Nixon Taxi Corp., 45 AD3d 736, 737).
The insureds' remaining contentions need not be reached in light of our determination.
County of Orange v. Reclamation Inc. of Kingston


David L. Darwin, County Attorney, Goshen, N.Y. (Matthew J.
Nothnagle of counsel), for appellant.
Couch White, LLP, Albany, N.Y. (Melanie J. LaFond and
Donald Hillman of counsel), for respondent
Reclamation Inc. of Kingston.
Lewis Johs Avallone Aviles, LLP, Melville, N.Y. (Elizabeth A.
Fitzpatrick of counsel), for respondent
Continental Casualty Company.

DECISION & ORDER
In an action for a judgment declaring that the defendants are obligated to defend and indemnify the plaintiff in an underlying personal injury action entitled Weed v County of Orange, pending in the Supreme Court, Orange County, under Index No. 10124/06, the plaintiff appeals (1), as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Orange County (Lubell, J.), dated September 29, 2009, as granted the motion of the defendant Continental Casualty Company for summary judgment declaring that it was not obligated to defend and indemnify the plaintiff in the underlying action, and (2) from an order of the same court dated March 5, 2010, which granted the motion of the defendant Reclamation Inc. of Kingston for leave to reargue that defendant's cross motion for summary judgment declaring that it was not obligated to defend and indemnify the plaintiff in the underlying action, which was denied in the order dated September 29, 2009, upon reargument, in effect, vacated that portion of the order denying that cross motion, and thereupon granted that cross motion.
ORDERED that the order dated September 29, 2009, is affirmed insofar as appealed from; and it is further,
ORDERED that the order dated March 5, 2010, is affirmed; and it is further,
ORDERED that the matter is remitted to the Supreme Court, Orange County, for the entry of a judgment declaring that the defendants are not obligated to defend and indemnify the plaintiff in the underlying action entitled Weed v County of Orange, pending in the Supreme Court, Orange County, under Index No. 10124/06; and it is further,
ORDERED that one bill of costs is awarded to the defendants. 
In 2008, the County of Orange commenced this declaratory judgment action against Reclamation Inc. of Kingston (hereinafter Reclamation) and Continental Casualty Company (hereinafter Continental) for a judgment declaring that the defendants had a duty to defend and indemnify the County in a personal injury action brought by Shandi Weed against Reclamation and the County. The personal injury action arose from a single-vehicle accident on a county road maintained by the County.
The County had, in 1997, hired Reclamation to perform certain maintenance and repair work on the subject road. The County and Reclamation entered into a contract, for the work which required, inter alia, Reclamation to defend and indemnify the County for any damages or costs arising from Reclamation's work under the contract, and required Reclamation to procure liability insurance which named the County as an additional insured.
Approximately six years later and after the completion of the work by Reclamation, Weed allegedly was injured in an accident occurring as the result of ice or water accumulation on the road. Weed sued the County and, later, Reclamation. Reclamation's insurance carrier on the date of the accident was Continental.
Continental moved, and Reclamation and the County both cross-moved, for summary judgment in the declaratory judgment action. The Supreme Court, inter alia, granted Continental's motion, finding that the County had failed to notify Continental "as soon as practicable" of the occurrence, as was required, and, therefore, that Continental was permitted to, and did properly, disclaim coverage under the policy. The Supreme Court also denied Reclamation's cross motion and granted the County's cross motion, insofar as it held that Reclamation had a duty to defend and indemnify the County by virtue of the expansive indemnity provision contained within the parties' contract, and by virtue of the fact that the duty to defend is broader than the duty to indemnify.
Reclamation moved for leave to reargue its cross motion for summary judgment. The Supreme Court granted Reclamation's motion for leave to reargue, upon reargument, in effect, vacated the determination denying the cross motion, and thereupon granted the cross motion, finding that the contractor's duty to defend is no greater than its duty to indemnify and, accordingly, since Reclamation was held not to be liable in the underlying personal injury action, Reclamation had no duty to defend the County in the underlying action. The County appeals from both orders. We affirm.
Continental established its prima facie entitlement to judgment as a matter of law by demonstrating that the County did not provide it with notice of the occurrence for more than three years after it became aware that the accident occurred (see City of New York v St. Paul Fire & Mar. Ins. Co., 21 AD3d 978, 981-982; see also Hanson v Turner Constr. Co., 70 AD3d 641; Key Bank U.S.A., N.A. v Interboro Ins. Co., 65 AD3d 521). In opposition, the County failed to establish that it had a good faith belief of nonliability sufficient to excuse its delay. Accordingly, the Supreme Court properly held that the notice given by the County to Continental was untimely.
The Supreme Court providently exercised its discretion in granting Reclamation's motion for leave to reargue its cross motion for summary judgment, and properly concluded that Reclamation was entitled to judgment as a matter of law. The Supreme Court correctly held that, since Reclamation is not an insurer, its duty to defend is no broader than its duty to indemnify (see George v Marshalls of MA, Inc., 61 AD3d 925, 931; Bryde v CVS Pharmacy, 61 AD3d 907, 908, Brasch v Yonkers Constr. Co., 306 AD2d 508, 510-511). Therefore, since Reclamation had been found to be free from liability and the underlying personal injury action was dismissed insofar as asserted against Reclamation, the County was not entitled to indemnification from Reclamation and, accordingly, also was not entitled to a defense in the underlying action.
The County's remaining contentions are without merit.
Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Orange County, for the entry of a judgment declaring that the defendants are not obligated to defend or indemnify the plaintiff in the underlying action (see Lanza v Wagner, 11 NY2d 317, appeal dismissed 371 US 74, cert denied 371 US 901).
American Building Supply Corp. v. Petrocelli Group, Inc


Keidel, Weldon & Cunningham, LLP, White Plains (Stephen
C. Cunningham of counsel), for appellant.
Zisholtz & Zisholtz, LLP, Mineola (Stuart Zisholtz of counsel),
for respondent.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered March 24, 2010, which denied defendant Petrocelli's motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed as against Petrocelli. The Clerk is directed to enter judgment accordingly.
Plaintiff, who is in the business of selling and furnishing construction building materials to general contractors in the New York metropolitan area, commenced this action, alleging that the defendant broker was negligent and in breach of contract based on its failure to procure insurance coverage specifically requested by the plaintiff. To recover damages for negligence or breach of contract against a broker based on the broker's failure to procure a particular type of coverage, the plaintiff must demonstrate that he or she made a specific request to the broker for that coverage (Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d 152, 157-158 [2006]).
Issues of fact may exist with respect to whether the information provided by plaintiff — a description of its business operations, a copy of the existing policy and its lease, and an apparent specific request for general liability coverage for its employees — should have alerted defendant that the general liability policy obtained, which included a cross liability exclusion precluding coverage based on the injury of an employee, may not have provided the requested coverage (see e.g. Kyes v Northbrook Prop. & Cas. Ins. Co., 278 AD2d 736 [2000]; see also Herron v Grand Villa Resort, Inc., 2007 NY Slip Op 33208[U], 2007 WL 2988384 [2007]).
However, the presumption that a policy holder read and understood a policy of insurance duly issued to him or her precludes recovery in this action (see Busker on Roof Ltd. Partnership Co. v Warrington, 283 AD2d 376, 377 [2001]; McGarr v Guardian Life Ins. Co. of Am., 19 AD3d 254, 256 [2005]). Although the presumption may be overcome if there is wrongful conduct on the part of the broker, such as when the broker affirmatively misrepresents or fails to correct a misimpression regarding coverage (see e.g. Baseball Off. of Commr. v Marsh & McLennan, 295 AD2d 73 [2002]), there is no evidence of such an affirmative misrepresentation here.

Sirius American Insurance Company v. Burlington Insurance Company

Ford Marrin Esposito Witmeyer & Gleser, L.L.P., New York
(James M. Adrian of counsel), for appellant.
Rubin, Fiorella & Friedman LLP, New York (Mandie R.
Forman of counsel), for respondents.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered on or about March 18, 2008, which, to the extent appealed from, as limited by the briefs, denied defendant-appellant Burlington Insurance Company's (Burlington) cross motion for summary judgment dismissing the amended complaint as against it and for a declaration that the insurance policy Burlington issued to its insured, defendant K.J.S. Construction Inc. (KJS), was void based on material misrepresentations, and granted plaintiffs' motion for a declaration that the policy was still in effect at the time of the worker's alleged accident and declared that Burlington's disclaimer of coverage to plaintiff Sirius American Insurance Company (Sirius) was untimely as a matter of law under New York Insurance Law § 3420(d), unanimously modified, on the law, the cross motion granted to the extent of declaring that the Burlington policy was void ab initio due to material misrepresentations made in the application process, and denying that branch of plaintiff's motion which sought a declaration that the policy was still in effect at the time of the worker's accident, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.
Burlington, as cross movant for summary judgment, established prima facie entitlement to such relief by proof that plaintiff general contractor Artimus Construction, Inc. (Artimus) was not named on the face of its policy issued to subcontractor KJS as a named insured or additional insured (see Tribeca Broadway Assoc. v Mount Vernon Fire Ins. Co., 5 AD3d 198 [2004]; cf. Majawalla v Utica First Ins. Co., 71 AD3d 958 [2010]). The burden having shifted, Artimus, as the party claiming insurance coverage, offered inadequate evidence to raise a triable issue of fact as to whether it was entitled to such coverage (see Tribeca Broadway Assoc., 5 AD3d at 200; York Restoration Corp. v Solty's Constr., Inc., __ AD3d __, 2010 NY Slip Op 9254 [2010]). Even
assuming, arguendo, that Artimus had demonstrated a triable issue of whether it was a covered ]insured under the KJS/Burlington policy, such showing would have been unavailing as the policy was void ab initio on account of material misrepresentations made by KJS in the application process to procure the insurance (see generally Insurance Law § 3105(b); Precision Auto Accessories, Inc. v Utica First Ins. Co., 52 AD3d 1198 [2008], lv denied 11 NY3d 709 [2008]; Kiss Constr. NY, Inc. v Rutgers Cas. Ins. Co., 61 AD3d 412 [2009]). A representative from Burlington's underwriter averred, inter alia, that Burlington would not have insured risks associated with KJS's undisclosed demolition work, particularly where the building exceeded four stories in height. The representative's statements were corroborated by internal underwriting documentation, including evidence of a standard exclusion that precluded recovery for bodily injury arising from demolition work in buildings exceeding four stories (see generally Curanovic v New York Cent. Mut. Fire Ins. Co., 307 AD2d 435 [2003]).
Since this is a declaratory judgment action, we declare in Burlington's favor, but do not dismiss the amended complaint (see 200 Genesee St. Corp. v City of Utica, 6 NY3d 761, 762 [2006]).
We have considered the parties' remaining arguments and find them moot and/or unavailing.
American Home Assurance Company v. BFC Construction Corp.


Brody, O'Connor & O'Connor, New York (Scott A. Brody of
counsel), for appellant.
Schneider Goldstein Bloomfield LLP, New York (Donald F.
Schneider of counsel), for respondents.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 9, 2010, which, inter alia, granted the cross motion of defendants BFC Construction Corp. and Kent Waterfront Builders, LLC, for summary judgment as against Sirius on their second cross claim, declaring the obligation of Sirius to provide full indemnity to them in connection with the underlying personal injury action, and on their fifth cross claim for breach of contract, and set the matter down for a hearing on the issue of damages, unanimously affirmed, with costs.
The primary insured's forwarding of the summons and complaint in the underlying personal injury action to its carrier, Sirius, constituted timely notice to Sirius of the claim involving the additional insured, since the interests of the named insured were not adverse to the interests of the additional insured (see New York Tel. Co. v Travelers Cas. & Sur. Co. of Am., 280 AD2d 268 [2001]). Sirius' lengthy delays in disclaiming coverage, after it knew or should have known of the purported bases for disclaiming coverage based upon exclusions in its commercial general liability policy, were unreasonable as a matter of law, and thus ineffective (see Insurance Law § 3420[d]).
Tsamos v. Diaz


Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for appellants.
Friedman, Khafif & Sanchez, LLP, Brooklyn (Fabien A.
Robley of counsel), for respondent.
Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered April 12, 2010, which, in an action for personal injuries arising from a motor vehicle accident, denied defendants' motion for summary judgment, unanimously modified, on the law, to the extent of granting dismissal of plaintiff's 90/180 day claim, and otherwise affirmed, without costs.
On July 15, 2005, plaintiff was operating a company vehicle in the vicinity of Broadway and 122 Street. While stopped at a red light, the vehicle operated by plaintiff was struck from behind by a vehicle operated by defendant, Albatani Diaz, and owned by defendant, Cepin Livery Corp.
Supreme Court correctly denied the motion for summary judgment with regard to the statute's categories of "permanent consequential limitation of use of a body organ or function" and "significant limitation of use of a body function or system" (Insurance Law § 5102 [d]). Defendants met their initial burden of demonstrating prima facie the absence of triable issues of material fact with their medical experts' opinions, based on, inter alia, examination of plaintiff and review of his MRIs, which demonstrated normal ranges of motion and attributed any limitations to causes other than the subject accident, such as plaintiff's age-related degenerative condition. In opposition, plaintiff raised triable issues of fact with his doctor's affirmation reviewing plaintiff's treatment from the time of the accident until 2009, including the results of range of motion tests performed a few days after the accident and then four years later. Plaintiff's physician's affirmation conflicted with defendants' expert's view as to the extent, effects, and causation of plaintiff's injury. Accordingly, summary judgment was properly denied with respect to these categories of alleged injury (see Grill v Keith, 286 AD2d 247 [2001]).
However, the court should have granted defendants' motion with respect to plaintiff's 90/180 day claim. In their moving papers, defendants relied on plaintiff's deposition testimony indicating that, at most, plaintiff missed a total of eight to ten weeks of work on account of the alleged injury. Moreover, plaintiff's claim is not supported by concurrent medical evidence and the fact that the plaintiff alleges he is still on "light" duty is insufficient to raise a triable issue of material fact (see Colon v Tavares, 60 AD3d 419 [2009]).
Simpson v. Montag


Cheven, Keely & Hatzis, New York (William B. Stock of
counsel), for appellants.
Scarcella Law Offices, White Plains (M. Sean Duffy of
counsel), for respondents.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered May 13, 2010, which, insofar as appealed from as limited by the briefs, in this action for personal injuries sustained in a motor vehicle accident, denied defendants' motion for summary judgment dismissing plaintiffs' claim that they sustained a serious injury under the 90/180-day category of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.
Defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence showing that plaintiffs' injuries were not the result of the subject accident. Although defendants' doctors did not examine plaintiffs until approximately eight years after the accident, the doctors, in rendering their conclusions, also relied on medical evidence contemporaneous with the accident (see Reyes v Esquilin, 54 AD3d 615, 616 [2008]; Uddin v Cooper, 32 AD3d 270, 271 [2006], lv denied 8 NY3d 808 [2007]; compare Rivera v Super Star Leasing, Inc., 57 AD3d 288, 289 [2008]).
In opposition, plaintiffs failed to raise a triable issue of fact. The fact that both plaintiffs missed more than 90 days of work is not determinative (see Ortiz v Ash Leasing, Inc., 63 AD3d 556, 557 [2009]; Uddin at 271). Insurance Law § 5102(d) requires plaintiffs to be prevented "from performing substantially all of the material acts which constitute [their] usual and customary daily activities" for at least 90 of the first 180 days after the accident. Plaintiffs, however, offered no evidence that they were so restricted, other than their own statements, which were not supported by sufficient medical evidence (see Colon v Bernabe, 65 AD3d 969, 970-971 [2009]; Nelson v Distant, 308 AD2d 338, 340 [2003]).
Kellerson v. Asis


Appeal from an order of the Supreme Court, Monroe County (Ann Marie Taddeo, J.), entered April 23, 2010 in a personal injury action. The order, insofar as appealed from, denied the motion of defendant for summary judgment.

RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, ROCHESTER (ALISON M.K. LEE OF COUNSEL), FOR DEFENDANT-APPELLANT.
SUGARMAN LAW FIRM, LLP, SYRACUSE (AMY M. VANDERLYKE OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Steven J. Kellerson (plaintiff) when he was struck by a vehicle operated by defendant. Plaintiff was working in an automatic car wash tunnel at the time of the accident. According to plaintiffs, plaintiff sustained a serious injury under the permanent consequential limitation of use and significant limitation of use categories set forth in Insurance Law § 5102 (d). We conclude that Supreme Court properly denied defendant's motion seeking summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury in the accident. Even assuming, arguendo, that defendant met her initial burden on the motion, we conclude that plaintiffs raised triable issues of fact whether plaintiff sustained a serious injury under both categories (see Parkhill v Cleary, 305 AD2d 1088, 1089-1090). In opposition to the motion, plaintiffs submitted the affirmation of plaintiff's treating orthopedic surgeon, who reviewed the results of an MRI and other diagnostic tests and conducted his own objective tests. The orthopedic surgeon concluded that plaintiff had sustained, inter alia, a complex tear of the posterior horn of the right knee meniscus requiring surgical repair and a permanent 15% loss of use of the right leg that were causally related to the accident. That evidence was sufficient to defeat defendant's motion (see Jaramillo v Lobo, 32 AD3d 417).
We reject defendant's contention that the court erred in denying her motion because there was a "gap" in plaintiff's treatment. Plaintiff's treating orthopedic surgeon provided the unrebutted explanation that, although plaintiff's condition had improved to a point where he could be discharged from active treatment, the potential for further meniscal tear complications was ever present and, consistent with the orthopedic surgeon's earlier predictions, further treatment, i.e., surgery, became necessary when plaintiff's condition worsened. Needless continuous medical treatment is not necessary to establish a serious injury (see Brown v Dunlap, 4 NY3d 566, 577). We conclude that plaintiff established a reasonable explanation for the gap in or cessation of treatment sufficient to defeat defendant's motion (see id.).
We reject defendant's further contention that plaintiffs improperly served a supplemental bill of particulars after the note of issue was filed and defendant had moved for summary judgment dismissing the complaint. "A party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities without leave of court at any time, but not less than [30] days prior to trial," so long as the continuing damages and disabilities are an anticipated sequelae of the injuries described in the original bill of particulars (CPLR 3043 [b]; see Tate v Colabello, 58 NY2d 84, 86-87). Here, plaintiffs' supplemental bill of particulars merely expanded upon the continuing disabilities alleged in the original bill of particulars and did not set forth a new legal theory of liability or new injuries (see Tate, 58 NY2d at 87). Early on in treatment, plaintiff's orthopedic surgeon specifically mentioned the possibility of a meniscal tear, and plaintiffs disclosed that statement in the original bill of particulars. Defendant contends that plaintiffs were not permitted to serve a supplemental bill of particulars after she had moved for summary judgment because her motion effectively stayed disclosure (see CPLR 3214 [b]). That contention is without merit inasmuch as a supplemental bill of particulars is not a disclosure device pursuant to CPLR 3102 (a).
148 Magnolia, LLC, v. Merrimack Mutual Fire Insurance Company

Morrison Mahoney LLP, New York (Kevin A. Hickman of
counsel), for appellant.
Law Office of Craig A. Blumberg, New York (Craig A.
Blumberg of counsel), for respondents.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered March 9, 2010, which, inter alia, denied defendant RAL Services, Inc.'s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, with costs.
In this action alleging negligence and breach of contract against an insurance broker for failure to obtain adequate and appropriate insurance coverage, issues of fact exist whether defendant broker breached its duty to plaintiffs (see Kimmell v Schaefer, 89 NY2d 257, 263 [1996]; Cosmos, Queens Ltd. v Matthias Saechang Im Agency, 74 AD3d 682, 683 [2010], lv denied 15 NY3d 711 [2010]). Plaintiffs' witnesses testified that defendant was aware of their intention to renovate the subject premises and that they relied on defendant's expertise as an insurance broker to obtain the appropriate policy. Defendant's witnesses admittedly were aware that the premises would be renovated. There is also record evidence that a builders' risk policy was the appropriate policy under the circumstances.
We reject defendant's argument that plaintiffs' failure to comply with a protective safeguards notice provision in their current policy was the proximate cause of their loss. Had defendant obtained the appropriate policy, plaintiffs' loss would have been covered even if the policy had no restrictive protective safeguards endorsement. Thus, we cannot conclude, as a matter of law, that defendant's failure to obtain the appropriate policy was not a proximate cause of plaintiffs' loss.
Union Carbide Corp. v. Affiliated FM Insurance Company

Steven R. Gilford, for appellant.
G. David Godwin, for respondents.

SMITH, J.:
This appeal calls on us to interpret an excess liability insurance policy covering asbestos claims made against Union Carbide Corporation (UCC). UCC and its insurers dispute: (1) whether the policy's aggregate limit was renewed annually or continued over the three-year life of the policy; and (2) whether a two-month extension of coverage by one of the insurers triggered a new limit. We decide the first issue in UCC's favor: The limit was renewed each year. On the second issue, however, we agree with the Appellate Division that UCC's motion for summary judgment should be denied.
I
In the mid 1970s, UCC sought — wisely, as it turned out — to obtain as much liability insurance coverage as it reasonably could. To accomplish this, it acquired coverage in layers.
In the bottom layer, a policy issued by Appalachian Insurance Company covered UCC for the first $5 million of loss, except for a "retained" amount for which UCC was self-insured. The Appalachian policy had a three-year duration, but it is clear, and not disputed, that the limit of that policy, as it applied to the claims in issue here, was renewed annually, or "annualized." The limit is identified in the policy declarations as an "annual aggregate," and one of the conditions of the policy provides: "The limit of liability . . . set forth as 'aggregate' shall be the total limit of the company's liability under this policy for ultimate net loss . . . during each consecutive 12 months of the policy period."
Losses above the $5 million were covered by successive layers of excess insurance. Our concern here is with the so-called fifth excess layer, which covered losses exceeding $70 million, up to $100 million. This $30 million of coverage was divided equally — $5 million each — among six insurers, two of which, Continental Casualty Company and Argonaut Insurance Company, are involved in this appeal.
The policy issued by the fifth-layer excess insurers was a brief "subscription form policy" prepared by UCC's insurance broker. It incorporated by reference the terms of the Appalachian policy, in what is known as a "follow-the-form" clause:
"subject to the declarations set forth below, the Companies signatory hereon agree with the Insured named below that the Insurance afforded by this agreement shall follow all the terms, insuring agreements, definitions, conditions and exclusions of [the] underlying . . . Policy . . . issued by Appalachian Insurance Company."
The "declarations set forth below" included the following:
"Limit of Liability: $30,000,000. each occurrence and in the aggregate excess of $70,000,000. Umbrella Liability."
The fifth-layer excess policy had a policy period beginning December 1, 1973 and ending December 1, 1976.
UCC was a seller of asbestos, with the result that enormous claims were made against it for the years in question. It says that it has paid over $1.5 billion in defense costs, settlements and judgments. It asserts that Continental and Argonaut are each liable under the subscription form policy for $15 million of this amount — $5 million for each year of the three-year period. Continental and Argonaut say that their liability for the entire three-year period is capped at $5 million per company.
As to Continental, UCC claims an additional $5 million because the policy was extended beyond the three years. A supplement to the subscription form policy issued by Continental in December 1976 says:
"In consideration of an additional premium of $1,530, it is agreed that the policy is hereby extended to read: 2/1/77 Exp. Date."
According to UCC, a new $5 million dollar policy limit became available to it by virtue of this two-month extension.
On UCC's motions for partial summary judgment, Supreme Court ruled in its favor on both issues. The Appellate Division, with one Justice dissenting, disagreed and denied UCC's motions as to both issues (Union Carbide Corp. v Affiliated FM Ins. Co., 68 AD3d 534 [2009]). The Appellate Division granted leave to appeal to us on a certified question. We now modify its order, and hold that UCC should be granted summary judgment on the annualization issue, but not on the extension issue.
II
On the annualization issue, Continental and Argonaut argue in substance that the words of the declarations in the subscription form policy, "$30,000,000 . . . in the aggregate," can mean only that $30 million is the maximum that may be paid under the policy, and thus that the maximum share for each of the six signatories, including Continental and Argonaut, is $5 million. They stress that the follow-the-form clause, which incorporates the Appalachian policy by reference, is expressly made "subject to the declarations set forth below" and that those declarations, unlike the Appalachian policy, speak of an "aggregate," not an "annual aggregate," limit of liability. UCC argues that, under the follow-the-form clause, the conditions in the Appalachian policy are part of the subscription form policy, and that one of those conditions is that the "aggregate" limit shall be annualized. Each side cites precedent interpreting arguably similar, though not identical, language in other policies (compare Maryland Cas. Co. v W. R. Grace & Co., 1996 WL 169326, 1996 US Dist LEXIS 4500 [SD NY 1996] [annualization rejected] with Travelers Cas. & Sur. Co. v Ace AM Reins. Co., 392 F Supp 2d 659 [2005], aff'd 201 Fed Appx 40 [2d Cir 2006] [annualization accepted] and Commercial Union Ins. Co. v Swiss Reins. Am. Corp., 413 F3d 121 [1st Cir 2005] [same]).
UCC has the better of the argument. While the reading Continental and Argonaut give to the word "aggregate" might be plausible in many contexts, here the follow-the-form clause should prevail. Such clauses serve the important purpose of allowing an insured, like UCC, that deals with many insurers for the same risk to obtain uniform coverage, and to know, without a minute policy-by-policy analysis, the nature and extent of that coverage. It is implausible that an insured with as large and complicated an insurance program as UCC would have bargained for policies that differed, as between primary and excess layers, in the time over which policy limits were spread. Under Continental's and Argonaut's reading, UCC could (and in fact did) reach the second and third years of its excess policies with the full limit of its primary coverage in place, but with its fifth- layer excess coverage exhausted. It is unlikely that the parties intended this result.
This conclusion is reinforced by the part of the declarations in the subscription form policy that Continental and Argonaut rely on. The fifth-layer subscription form policy says that the limit of liability shall be "$30,000,000. each occurrence and in the aggregate." If $30 million was the most that could be paid on the entire policy why, UCC asks, did the parties bother to specify a per occurrence limit in an equal amount? Continental and Argonaut offer no answer.
Though extrinsic evidence of the policy's meaning has been proffered, our analysis thus far has considered only the text of the subscription form policy, and the underlying policy that it incorporates by reference. Both sides here endorse this approach, and all of the judges who considered the case below adopted it also. This is an approach strongly favored in our precedents, which hold that, where the meaning of a writing is clear from its text, extrinsic evidence will not be considered (e.g., Vintage, LLC v Laws Constr. Corp., 13 NY3d 847, 849 [2009]; Innophos, Inc. v Rhodia, S. A., 10 NY3d 25, 29 [2008]; Greenfield v Philles Records, 98 NY2d 562, 569 [2002]). Nevertheless, there inevitably will be cases in which the parties have not expressed themselves clearly in writing, and in which resort to extrinsic evidence will be necessary.
We need not decide whether this is such a case, because, even assuming that there is an ambiguity, the extrinsic evidence — all of it submitted by UCC — overwhelmingly supports UCC's position. UCC has submitted expert testimony that annualization of limits was the universal custom of the industry. It has also submitted contemporaneous evidence showing the existence of that custom, and other evidence showing that at least some participants in the transactions at issue assumed that the limits under the fifth-layer excess policy would be annualized. Continental's and Argonaut's only response is to insist that the language of the policy unambiguously forbids annualization, an assertion with which we do not agree.
III
The question of whether the two-month extension of the Continental policy created a new "year" for policy limit purposes is a vexing one. Under Continental's view (assuming that the annualization issue is resolved as we have resolved it), UCC had a $5 million policy limit — the limit normally applicable to a year — for the period December 1, 1975 to February 1, 1977; in other words, UCC essentially had to squeeze 14 months of losses into a 12-month limit. On UCC's view, it had the luxury of $10 million of coverage — 24 months of limits — to cover 14 months of losses. Neither result seems wholly fair, but it is not clear that there is a wholly fair result that is possible under the policy's language.
A number of courts have considered similar questions and, perhaps unsurprisingly, reached divergent results (compare Stonewall Ins. Co. v Asbestos Claims Mgt. Corp., 73 F3d 1178, 1216-1217 [2d Cir 1995]; United States Mineral Prods. Co. v Am. Ins. Co., 348 NJ Super 526, 792 A2d 500 [NJ App Div 2002]; Cadet Mfg. Co. v Am. Ins. Co., 391 F Supp 2d 884, 890 [WD Wash 2005]; and Ind. Petro. Chem. Corp. v Aetna Cas. & Sur Co., 1988 US Dist LEXIS 15839 at *155-*159 [DDC 1988][all ruling in favor of the insured]; with UNR Indus., Inc. v Cont. Ins. Co., 1988 US Dist LEXIS 12561 at *4-*9 [MD Ill 1988]; Gen. Refractories Co. v Ins. Co. of N. Am., 2006 Pa Super 224, 906 A2d 610 [Super Ct Pa 2006]; and Uniroyal Inc. v Am. Reins. Co., 2005 WL 4934215 at *19-*22 [NJ App Div 2005] [all ruling in favor of the insurer]). The parties discuss at some length which of these cases are and are not distinguishable. Since none of them is binding on us, we do not pursue the question.
Facts peculiar to this case may shed light on the problem, but do not solve it. The record suggests that, in late 1976, Continental wanted to withdraw entirely from insuring UCC's liabilities, and was persuaded to remain on the risk for two more months as an accommodation. It may be argued that the parties would not reasonably have expected that accommodation to give UCC a fresh set of policy limits. On the other hand, extrinsic evidence submitted by UCC shows that a representative of UCC's insurance broker tried to negotiate an "extension period to be treated as a separate annual period for aggregate reckoning purposes," and that he was optimistic about succeeding. But the record does not clearly show whether he did succeed; the document that Continental actually issued says only "that the policy period is hereby extended" — it does not mention policy limits.
We conclude, as the Appellate Division majority did, that UCC has not met its burden on summary judgment of establishing coverage for an additional year's policy limits (see Consolidated Edison Co. of New York, Inc. v Allstate Ins. Co., 98 NY2d 208, 218 [2002]). We cannot say, based on what is before us, that UCC's proposed resolution of the extension issue is the only possible one. The issue thus remains open to be determined on another motion, or at trial.
* * *
Accordingly, the order of the Appellate Division should be modified to grant UCC's motion for summary judgment on the annualization issue, and otherwise affirmed, without costs, and the certified question answered in the negative.
Fieldston Property Owners Association, Inc. v. Hermitage Insurance Co. v. Fieldston Property Owners Assoc. Inc.

Jonathan A. Constine, for appellant.
Jeffrey B. Gold, for respondent.

CIPARICK, J.:
This appeal involves two declaratory judgment actions relating to a dispute between two insurers — Hermitage Insurance Company, Inc. (Hermitage) and Federal Insurance Company (Federal)[FN1] — over their respective responsibility for the cost of defending Fieldston Property Owners Association, Inc. (Fieldston), the insurers' mutual insured, against two underlying actions. Specifically, we are asked to determine whether the "other insurance" clauses in the two applicable insurance policies require Hermitage to bear the entire defense costs in the two underlying actions against Fieldston. Based on the language of the policies, we conclude that Hermitage had the primary duty to defend Fieldston, to the exclusion of any duty owed by Federal.
I.
Hermitage issued a Commercial General Liability (CGL) policy to Fieldston for the period July 5, 2000 to July 5, 2001. The "per occurrence" CGL policy provides coverage for "bodily injury," "property damage," and "personal and advertising injury" as defined in the policy, among other things. The "other insurance" clause of Hermitage's CGL policy provides, as relevant here:
"If other valid and collectible insurance is available to the insured for a loss we cover . . . our obligations are limited as following:
(a) Primary Insurance. This insurance is primary except when b. below applies. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described [herein].
(b) Excess Insurance. This insurance is excess over [certain types of insurance not relevant here.]"
Federal issued an "Association Directors and Officers Liability" (D & O) policy covering the policy period from February 13, 1999 to February 13, 2002. The D & O policy is a "claims made" policy providing coverage for "wrongful acts," as that term is broadly defined in the policy, committed by the directors and officers of Fieldston. The D & O policy also covers certain enumerated "offenses" committed before or during the policy period. The "other insurance" clause of Federal's D & O policy provides:
"If any Loss arising from any claim made against the Insured(s) is insured under any other valid policy(ies) prior or current, then this policy shall cover such Loss, subject to its limitations, conditions, provisions, and other terms, only to the extent that the amount of such Loss is in excess of the amount of such other insurance whether such other insurance is stated to be primary, contributory, excess, contingent or otherwise, unless such other insurance is written only as specific excess insurance over the limits provided in th[is] policy."
"Loss" is defined in Federal's D & O policy to mean "the total amount which the Insured(s) becomes legally obligated to pay on account of all claims made against it for Wrongful Acts with respect to which coverage hereunder applies, including . . . Defense Costs."
By letter dated April 20, 2001, non-party Chapel Farm Estates (Chapel Farm) informed Fieldston that Fieldston's officers had been making "false statements and fraudulent claims" with respect to Chapel Farm's "right to access its property from" adjacent public streets. Specifically, Chapel Farm claimed that, in statements "given broad publication to a number of . . . community groups and elected officials," including statements made at a meeting of the Community Board's Land Use Committee, Fieldston made false claims as to Chapel Farm's ability to access certain property over "private roads" purportedly owned by Fieldston for the purpose of a construction project. Chapel Farm thereafter commenced an action against Fieldston and its officers in federal district court asserting several causes of action, including "injurious falsehood," and seeking damages, among other remedies. Some of the facts and events described in the complaint apparently related to events that occurred during the D & O policy period, but not during the CGL policy period.
By letter dated October 30, 2001, Hermitage demanded that Federal acknowledge its coverage obligations to Fieldston for defense of the Chapel Farms federal action. Specifically, Hermitage stated: "The complaint makes reference to a variety of alleged wrongful acts which are not covered under [the CGL] policy. Seven out of the eight causes of action in the complaint involve allegations that are clearly related to D & O issues and we feel that [Federal] has a primary defense obligation under [its] policy." The letter also stated that "it appears that only the cause of action for injurious falsehood might trigger a defense obligation under" the CGL policy. Relying on its "other insurance" clause, Federal refused to provide coverage for defense costs. Thereafter, Hermitage agreed to defend Fieldston in the Chapel Farm federal action under a full reservation of its rights.
Shortly after the federal action was dismissed in August 2003, Chapel Farm — by then known as Villanova Estates Inc. (Villanova) — filed an action in Supreme Court. Although the state action included more causes of action, the operative facts stated therein were nearly identical to the federal action, except that the new complaint included additional, later-occurring events. The eighteenth cause of action set forth an injurious falsehood claim; the remaining causes of action sought declaratory and injunctive relief and damages related to Fieldston's purported interference with Villanova f/k/a Chapel Farm's property rights, among other things. As with the federal complaint, some of the operative events allegedly occurred when the D & O policy, but not the CGL policy, was in effect.
By letter dated October 24, 2003, Hermitage reserved its right to deny coverage for the Villanova action, specifically advising Fieldston that only the injurious falsehood cause of action was potentially covered. However, Hermitage, once again, agreed to defend Fieldston, subject to a full reservation of its rights, including the right to seek reimbursement from Federal for the cost of the defense. Again relying on its "other insurance" clause, Federal disclaimed coverage, asserting that its coverage for the defense costs of the Villanova action was excess to Hermitage's policy.
In the state action, Fieldston successfully moved to dismiss certain causes of action, including the injurious falsehood claim. After the partial dismissal of the state action was affirmed on appeal, Hermitage demanded that Federal provide a defense as to the remaining causes of action. Federal conceded and assumed the defense of the state action.
These two declaratory judgment actions ensued, seeking to establish the respective defense cost responsibilities of Hermitage and Federal. Fieldston commenced the first action against both insurers to establish their obligation to cover the defense costs of the underlying Chapel Farm federal action. Supreme Court granted Federal's motion for summary judgment dismissing Hermitage's cross claims against it and denied Hermitage's cross motion for summary judgment. Supreme Court concluded, in relevant part, that the "other insurance" clause in the respective policies rendered Hermitage the primary and Federal the excess insurer as to the defense costs of the federal action. Hermitage appealed.
The second declaratory judgment action was brought by Hermitage against Federal seeking reimbursement — in full or on an equitable basis — for the costs incurred in defending the underlying Villanova action. In a separate order, Supreme Court denied Federal's motion and Hermitage's cross motion for summary judgment. In relevant part, Supreme Court concluded that neither Hermitage nor Federal had demonstrated their respective positions as a matter of law. Hermitage appealed, and Federal cross- appealed, from the second Supreme Court order.
The Appellate Division in the first action, reversed, on the law, denied Federal's motion for summary judgment, granted Hermitage's motion for summary judgment, and declared that Federal is required to reimburse Hermitage for its equitable share of defending the federal Chapel Farm action. In the second action, it modified, on the law, to the extent of granting Hermitage's motion for summary judgment and declaring that Hermitage is entitled to recover from Federal its equitable share of defending the Villanova state action, except to the extent that those costs related to the injurious falsehood claims (Fieldston Prop. Owners Assn., Inc. v Hermitage Ins. Co., Inc., 61 AD3d 185 [1st Dept 2009]). The Appellate Division rejected Federal's argument, reasoning:
"With the possible exception of the injurious falsehood claims, all the other losses (including defense costs) that could result from the other causes of action are not insured under the CGL policy but at least some of them are insured under the D & O policy. Accordingly, the 'other insurance' clause [in the D & O policy] is inapplicable to the risks of all other such losses, and the D & O policy thus provides primary coverage with respect to some of those risks. In other words, putting aside that possible exception, the CGL and D & O policies do not provide concurrent coverage as they do not insure against the same risks" (id. at 191).
The Appellate Division granted Federal leave to appeal to this Court, certifying the following question: "Was the order of this Court . . . properly made?" We now reverse and answer the certified question in the negative.
II.
In resolving insurance disputes, we first look to the language of the applicable policies (see Raymond Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 5 NY3d 157, 162 [2005]). If the plain language of the policy is determinative, we cannot rewrite the agreement by disregarding that language (see id.). Here, the parties have conceded at least the possibility that both Hermitage's CGL and Federal's D & O policies cover the injurious falsehood claims in the two underlying actions. Thus, based on the "other insurance" clauses, Hermitage's CGL policy is primary to Federal's D & O policy as they relate to defense costs. The question presented distills to whether the Hermitage policy's primacy on the injurious falsehood claim triggers a primary duty to defend against the remaining causes of action in the two complaints, thus preempting any obligation by Federal. We say it does.
An insurer's duty to defend is liberally construed and is broader than the duty to indemnify, "in order to ensure [an] adequate . . . defense of [the] insured," without regard to the insured's ultimate likelihood of prevailing on the merits of a claim (General Motors Acceptance Corp. v Nationwide Ins. Co., 4 NY3d 451, 456 [2005]; see also Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131, 137 [2006]). As we have explained on multiple occasions, the insurer's duty to defend its insured "arises whenever the allegations in a complaint state a cause of action that gives rise to the reasonable possibility of recovery under the policy" (Fitzpatrick v American Honda Motor Co., 78 NY2d 61, 65 [1991]; see also BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d 708, 714 [2007]). Moreover, if "'any of the claims against an insured arguably arise from covered events, the insurer is required to defend the entire action'" (Town of Massena v Healthcare Underwriters' Mut. Ins. Co., 98 NY2d 435, 443 [2002], quoting Frontier Insulation Contrs. v Merchants Mut. Ins. Co., 91 NY2d 169, 175 [1997] [emphasis added] [brackets omitted]). It is "immaterial that the complaint against the insured asserts additional claims which fall outside the policy's general coverage" (id. [citation, quotation marks and brackets omitted]).
In the context of primary and excess insurance, we have explained that a "primary insurer 'has the primary duty to defend on behalf of its insureds'" (General Motors, 4 NY3d at 455, quoting General Acc. Fire & Life Assur. Corp. v Piazza, 4 NY2d 659, 669 [1958] [brackets omitted]), and it generally has no "'entitlement to contribution from an excess insurer'" (id., quoting Fireman's Ins. Co. of Washington, D.C. v Federal Ins. Co., 233 AD2d 193 [1st Dept 1996], lv denied 90 NY2d 803 [1997]). Although an excess insurance carrier may elect to participate in an insured's defense to protect its interest, it has "no obligation to do so" (id.).
As relevant here, Federal's D & O policy provides that its coverage is excess where "any Loss arising from any claim made against the Insured is insured under any other valid policy(ies)." "Loss" as defined in the D & O policy includes "defense costs." Based on the broad duty to defend, and upon the conceded possibility that Hermitage's CGL policy covers at least one cause of action in each of the two underlying complaints, Hermitage has a duty to provide a defense to the entirety of both complaints (see e.g. Town of Massena, 98 NY2d at 443-444). Thus, under the terms of Federal's D & O policy, there does exist "other insurance" which would cover the "loss" arising from the defense of the two underlying actions. Accordingly, Hermitage had an obligation to defend both of the underlying actions without contribution from Federal (see Firemen's Ins. Co., 233 AD2d at 193; Sport Rock Intl., Inc. v American Cas. Co. of Reading, Pa., 65 AD3d 12, 21 [1st Dept 2009], citing State Farm Fire & Cas. Co. v LiMauro, 65 NY2d 369, 373 [1985]), notwithstanding the fact that Federal would appear to have an obligation to indemnify Fieldston for a greater proportion of the causes of action, if successfully prosecuted.
We acknowledge that the result reached by the Appellate Division has much equitable appeal. If the policies were drafted using different language, we might hold differently, but we may not judicially rewrite the language of the policies at issue here to reach a more equitable result (see e.g. Raymond Corp., 5 NY3d at 162).
Accordingly, the order of the Appellate Division should be reversed, with costs; in Action No. 1, the judgment of Supreme Court should be reinstated, in Action No. 2, defendant Federal Insurance Company's motion for summary judgment should be granted, and the certified question should be answered in the negative.
* * * * * * * * * * * * * * * * *
Order reversed, with costs, in Action No. 1 judgment of Supreme Court, New York County, reinstated and in Action No. 2 defendant Federal Insurance Company's motion for summary judgment granted. Certified question answered in the negative. Opinion by Judge Ciparick. Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and Jones concur.
Decided February 24, 2011
Footnote 1: Federal was apparently improperly originally named as "Chubb Group of Insurance Companies" in the first declaratory judgment action.

Axis Construction Corp. v. O'Brien Agency, Inc.

Ackerman, Levine, Cullen, Brickman & Limmer, LLP, Great
Neck, N.Y. (John M. Brickman and Benjamin S. Kaplan of
counsel), for appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White
Plains, N.Y. (Nancy Quinn Koba of
counsel), for respondents.

DECISION & ORDER
In an action, inter alia, to recover damages for breach of a contract to procure insurance, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Emerson, J.), dated October 21, 2009, which granted the defendants' motion for summary judgment dismissing the complaint, and (2) a judgment of the same court entered December 22, 2009, which, upon the order, is in favor of the defendants and against it dismissing the complaint.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is reversed, on the law, the defendants' motion for summary judgment dismissing the complaint is denied, and the order is modified accordingly; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).
An insurance agent or broker has a common-law duty to obtain requested coverage for a client within a reasonable amount of time, or to inform the client of the inability to do so (see Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d 152, 157; Murphy v Kuhn, 90 NY2d 266, 270; Core-Mark Intl. v Swett & Crawford Inc., 71 AD3d 1072; Verbert v Garcia, 63 AD3d 1149). Absent a specific request for coverage not already in a client's policy or the existence of a special relationship with the client, an insurance agent or broker has no continuing duty to advise, guide, or direct a client to obtain additional coverage (see Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d at 157-158; Murphy v Kuhn, 90 NY2d at 270-271; Verbert v Garcia, 63 AD3d 1149). A special relationship which gives rise to a duty to advise may exist, inter alia, where "there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on" (Murphy v Kuhn, 90 NY2d at 272).
Here, the defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting evidence which established that the plaintiff did not specifically request that they procure construction management professional liability insurance coverage (see Verbert v Garcia, 63 AD3d 1149; Fremont Realty Inc. v P & N Iron Works, Inc., 39 AD3d 586, 587). Contrary to the Supreme Court's determination, however, the plaintiff's evidentiary submissions in opposition were sufficient to raise a triable issue of fact as to whether there was a course of dealing between the parties over an extended period of time which gave rise to a special relationship between them, such that the defendants would have been required to advise the plaintiff to obtain the subject coverage (cf. Hoffend & Sons, Inc. v Ross & Kiernan, Inc., 7 NY3d 152; Murphy v Kuhn, 90 NY2d 266). Accordingly, the defendants' motion for summary judgment should have been denied.
Tadesse v. Degnich


Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck
(Sharon A. Mosca of counsel), for appellants.
The Saftler Law Firm, New York (James W. Bacher of counsel),
for respondent.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered June 28, 2010, which, insofar as appealed from, in this action for personal injuries sustained in a motor vehicle accident, granted plaintiff's motion to reargue a prior order granting defendants-appellants' motion for summary judgment dismissing the complaint as against them on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and, upon reargument, vacated the prior order and denied appellants' motion for summary judgment, unanimously affirmed, with costs.
The motion court properly granted plaintiff's motion for reargument, since it had misapplied a "controlling principle of law" (Foley v Roche, 68 AD2d 558, 567 [1979]; see CPLR 2221[d]). When dismissing the complaint as against appellants, the court improperly relied on the gap-in-treatment argument, which appellants raised for the first time in their reply papers (see McNair v Lee, 24 AD3d 159 [2005]). Indeed, the court determined that plaintiff had otherwise raised a triable issue of fact, but that her failure to address the gap in her treatment was "fatal" to her case.
Fraser-Baptiste v. New York City Transit Authority


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Thomas Torto and Jason Levine of counsel), for appellants.
Michelstein & Associates PLLC, New York, N.Y. (Richard A.
Ashman of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants American United Transportation, Inc., and Luis R. Santiago appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Sherman, J.), entered July 28, 2010, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed insofar as appealed from, with costs.
In the early afternoon on December 9, 2007, on East 98th Street in Brooklyn, a motor vehicle owned by the defendant American United Transportation, Inc., and operated by the defendant Luis R. Santiago (hereinafter together the defendants) collided with a bus owned by the New York City Transit Authority (hereinafter the Transit Authority) and driven by Jocelyn Wasembeck. The plaintiff, a passenger on the bus, allegedly was injured as a result of the collision, and she commenced this action against the owners and operators of both vehicles 11 months later. Following discovery, the defendants moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the collision. The Supreme Court, inter alia, denied the defendants' motion. The defendants appeal from so much of the order as denied their motion, and we affirm the order insofar as appealed from.
The defendants satisfied their burden of establishing, prima facie, 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, inter alia, on the affirmed medical report of Dr. Alan M. Crystal, an orthopedist. Dr. Crystal examined the plaintiff and, although he found that she exhibited a diminished range of motion in various regions of her body, he concluded that those limitations were "exaggerated" because she did not exhibit a limitation in a certain movement when he observed her before formally beginning his examination. Dr. Crystal also concluded that any abnormalities in the tested areas were degenerative, and not causally related to the collision of December 9, 2007.
In opposition, however, the plaintiff raised a triable issue of fact by submitting reports from doctors in admissible form attesting, in effect, that the plaintiff's limitations resulted from trauma causally related to the collision. To the extent that those reports did not specifically address the findings in the reports submitted by the defendants that the abnormalities in the tested areas were degenerative, rather than traumatic, the findings of the plaintiff's doctors that her injuries were indeed traumatic and were causally related to the collision of December 9, 2007, implicitly addressed the defendants' contentions that the injuries were degenerative (see Harris v Boudart, 70 AD3d 643, 644; Sinfelt v Helm's Bros., Inc., 62 AD3d 983, 983-984). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them (see Benitez v Lashnitz, 70 AD3d 879).
Khavosov v. Castillo


James G. Bilello & Associates, Westbury, N.Y. (Patricia McDonagh
of counsel), for appellant.

DECISION & ORDER
In an action to recover damages for personal injuries and injury to property, the defendant appeals from an order of the Supreme Court, Kings County (Battaglia, J.), dated February 23, 2010, which denied his motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, without costs or disbursements.
The plaintiff Arkady Khavosov commenced this action to recover damages for personal injuries, and the complaint also alleged causes of action to recover damages for injury to property on behalf of the plaintiff Sam's Transportation, Inc. (hereinafter the corporate plaintiff). The defendant moved for summary judgment dismissing the complaint on the ground that Khavasov did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
The defendant met his prima facie burden of showing that Khavasov 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 plaintiffs raised a triable issue of fact based on the affidavit of Khavasov's treating physician, Dr. Yury Koyen. Dr. Koyen's examinations of Khavasov were contemporaneous with the accident and revealed significant limitations of the range of motion in the cervical and lumbosacral regions of his spine. In addition, magnetic resonance imaging films of the cervical region of Khavasov's spine revealed herniated discs at C5-6 and C6-7. Based on this evidence, Dr. Koyen concluded that the injuries to the cervical and lumbosacral regions of Khavasov's spine, and the significant range-of-motion limitations observed during the examinations, were permanent and causally related to the subject accident. This submission alone was sufficient to raise a triable issue of fact as to whether Khavasov sustained a serious injury to the cervical and/or lumbosacral regions of his spine under the permanent consequential limitation of use and/or the significant limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident (see Evans v Pitt, 77 AD3d 611; Tai Ho Kang v Young Sun Cho, 74 AD3d 1328, 1329).
Khavasov also provided an adequate explanation for the gap in his treatment history. Dr. Koyen affirmed that Khavasov ceased his course of treatment based on a determination that he had derived a maximum medical benefit from physical therapy (see Pommells v Perez, 4 NY3d 566, 574). Any discrepancy between Dr. Koyen's account and the reasons Khavasov expressed during his deposition for ceasing treatment is a matter of credibility for resolution by the trier of fact (see Barrett v New York City Tr. Auth.,AD3d, 2011 NY Slip Op 00171, *1 [2d Dept 2011]; Frazier v Hertz Vehs., LLC, 78 AD3d 767, 768; Lawson v Rutland Nursing Home, Inc., 65 AD3d 572, 572-573).
In addition, as the Supreme Court correctly concluded, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law dismissing the second and third causes of action asserted on behalf of the corporate plaintiff.
Lewis v. John


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Timothy M. Sullivan of counsel), for appellants.
Robert K. Marchese, Esq., P.C., Staten Island, N.Y. (Elizabeth
Mark Meyerson of counsel), for
respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendants Anthony F. John and Takis Corp. appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bayne, J.), dated July 30, 2010, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff Veronica Lewis 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 appellants failed to meet their prima facie burden of showing that the plaintiff Veronica Lewis (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiffs adequately set forth a claim in their bill of particulars that the injured plaintiff sustained a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Insurance Law § 5102[d]; hereinafter the 90/180 category of serious injury). Despite this claim, neither the appellants' expert neurologist, Dr. Maria De Jesus, nor their expert orthopedist, Dr. Lisa Nason, who did not examine the injured plaintiff until approximately 1½ years after the accident, related their findings to the 90/180 day category of serious injury (see Bright v Moussa, 72 AD3d 859, 860; Menezes v Khan, 67 AD3d 654, 654-655).
Since the appellants did not sustain their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see Linton v Nawaz, 14 NY3d 821, 822; Bright v Moussa, 72 AD3d at 860; Menezes v Khan, 67 AD3d at 654-655).
Mugno v. Juran


Baker, McEvoy, Morrissey & Moskovits, P.C. (The Sullivan Law
Firm, New York, N.Y. [Timothy M. Sullivan], of counsel), for
appellants.
Ferro, Kuba, Mangano, Sklyar, P.C. New York, N.Y. (Kenneth
E. Mangano and Michael N.
Manolakis of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Jose A. Vera and Rodrigo Perez appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Kelly, J.), entered July 13, 2010, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed insofar as appealed from, with costs.
The appellants 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). The papers the appellants submitted in support of their motion for summary judgment failed to adequately address the plaintiff's claim, which she clearly set forth in her bill of particulars, that she sustained a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Insurance Law § 5102[d]; Bright v Moussa, 72 AD3d 859, 860; Menezes v Khan, 67 AD3d 654, 654-655).
Despite this claim, neither the appellants' expert neurologist, Dr. Monette Basson, nor their expert orthopedist, Dr. Robert Israel, who did not examine the plaintiff until more than 3½ years after the accident, related her/his findings to the 90/180 day category of serious injury (see Menezes v Khan, 67 AD3d at 654-655). Moreover, although in the bill of particulars the plaintiff alleged serious injury to, inter alia, her left knee, as a result of the accident, the appellants' expert radiologist, Dr. Audrey Eisenstadt, did not review the MRI of the plaintiff's left knee, and their expert neurologist, Dr. Monette Basson, did not examine the plaintiff's left knee (see Bright v Moussa, 72 AD3d at 860; Menezes v Khan, 67 AD3d at 654-655).
Since the appellants 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 Linton v Nawaz, 14 NY3d 821, 822; Bright v Moussa, 72 AD3d at 860; Menezes v Khan, 67 AD3d at 654-655).
Therefore, the Supreme Court properly denied the appellants' motion for summary judgment.
Zelman v. Mauro


Conway, Farrell, Curtin & Kelly, P.C., New York, N.Y. (Jonathan
T. Uejio of counsel), for appellants.
Mirotznik & Associates, LLC, East Meadow, N.Y. (Mary Ellen
O'Brien 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, Nassau County (McCarty III, J.), entered May 14, 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 reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.
The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact. Although the plaintiff was entitled to rely upon the unsworn medical reports of her doctors that were submitted by the defendants in support of their motion for summary judgment (see Kearse v New York City Transit Auth., 16 AD3d 45, 47 n 1), these reports were insufficient to raise a triable issue of fact.
Travelers Property & Casualty Co.v. Mayen


Law Offices of Karen C. Dodson, New York (Andre Del Re of
counsel), for appellant.
Law Offices of Jeffrey B. Manca, New York (Jeffrey B. Manca
of counsel), for respondent.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered June 11, 2009, which, insofar as appealed from as limited by the briefs, after a framed-issue hearing, denied petitioner's application brought pursuant to CPLR article 75 seeking, inter alia, a permanent stay of arbitration of an uninsured motorist claim, unanimously affirmed, without costs.
Supreme Court properly denied the request for a permanent stay of arbitration, since petitioner failed to meet its burden of proof that a hit-and-run accident did not occur (Matter of Empire Mut. Ins. Co. [Greaney-National Union Fire Ins. Co. of Pittsburgh], 156 AD2d 154, 155 [1989]). The evidence adduced at the hearing, including the testimony of respondent's co-worker who witnessed another vehicle hit respondent's car, showed that respondent was indeed involved in a hit-and-run accident (see Matter of Allstate Ins. Co. v Killakey, 78 NY2d 325 [1991]).

Although the police accident report indicated that respondent told the responding officer that the crash was the result of a blown out tire, the court reasonably attributed this statement to the fact that respondent was falling in and out of consciousness at the accident scene.
Browne v. Covington


Richard T. Lau & Associates, Jericho (Keith E. Ford of
counsel), for appellant.
Seth D. Zukoff, New York (John Evans Bos of counsel), for
respondent.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about July 15, 2010, which, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the third cause of action on the ground that plaintiff Lavern Browne did not suffer a serious injury within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, to grant the cross motion as to plaintiff Lavern Browne's 90/180-day claim, and otherwise affirmed, without costs.
Supreme Court properly determined that Lavern Browne raised an issue of fact with respect to whether she suffered a serious injury insofar as the claims are premised upon her "permanent consequential limitation of use" and "significant limitation of use" of her spine, right shoulder, and left ankle (Insurance Law § 5102[d]).
That portion of defendant's argument premised upon the alleged gap in Lavern Browne's treatment with Dr. Opam is unpreserved and, additionally, unavailing (see Byong Yol Yi v Canela, 70 AD3d 584, 585 [2010]). The fact that the same physician also examined her in January 2010 does not, as defendant contends, constitute an unexplained gap in treatment which somehow vitiates the probative value of the physician's affirmation. The record demonstrates that "the so-called gap in treatment was, in reality, a cessation" of that doctor's treatment, not all treatment (Pommells v Perez, 4 NY3d 566, 574 [2005]). Even a "cessation of all treatment" would not necessarily be dispositive, and, in any event, Browne offered a sufficient explanation in her affidavit in opposition to defendant's cross motion — her no-fault benefits were denied (id.; see Peluso v Janice Taxi Co., Inc., 77 AD3d 491, 492 [2010]; Delorbe v Perez, 59 AD3d 491, 492 [2009]).
Defendant's argument that the treating physician's hand-written reports have no probative value because they did not "compare the reported degrees of loss of range of motion to normal values" has been raised for the first time on appeal and, therefore, is unpreserved for review (see Alicea v Troy Trans, Inc., 60 AD3d 521, 521-522 [2009]). Regardless, it is unpersuasive because the physician's affirmation, which Browne submitted in opposition to defendant's cross motion, clearly sets forth the normal ranges of motion for each and every allegedly injured body part and "ascribe[s] a specific percentage to the loss of range of motion" in each of those parts (Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]). This comparison is sufficient to raise a question of fact regarding Browne's loss of range of motion for the purposes of her "permanent consequential limitation of use" and "significant limitation of use" claims (Insurance Law § 5102[d]).
However, defendant made a prima facie showing that Lavern Browne was not prevented from performing substantially all of her customary and daily activities for 90 of the 180 days immediately following the accident by submitting the affirmed report of an examination conducted approximately two months after the accident. Lavern Browne's subjective complaints fail to raise a material issue of fact and, to the extent that her doctor's affirmation purports to address the 90/180-day claim, it merely offers an unavailing conclusory recitation of the statutory language (see Rosa-Diaz v Maria Auto Corp., 79 AD3d 463, 463 [2010]; Ortiz v Ash Leasing, Inc., 63 AD3d 556, 557 [2009]).
Abrahams v Commonwealth Land Title Insurance Company


Solomon Abrahams, Scarsdale, N.Y., appellant pro se.
Zarin & Steinmetz, White Plains, N.Y. (David S. Steinmetz
and David J. Cooper of counsel), for
respondent.

DECISION & ORDER
In an action to recover damages for breach of fiduciary duty, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Nicolai, J.), entered December 29, 2009, as granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not breach its fiduciary duty, as escrow depositary, to the depositor. The defendant showed that it properly disbursed escrow funds, in accordance with the terms of an escrow agreement, to the judgment creditor to satisfy a judgment for which the funds had been placed in escrow (see Cash v Titan Fin. Servs., Inc., 58 AD3d 785, 790; see generally Rut v Young Adult Inst., Inc., 74 AD3d 776; Takayama v Schaefer, 240 AD2d 21, 25). In opposition, the plaintiff failed to raise a triable issue of fact.
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

U.S. Underwriters Insurance Company v Greenwald


Schlam Stone & Dolan LLP, New York (Michael C. Marcus of
counsel), for James Greenwald, appellant.
Bellin & Associates, LLC, White Plains (Aytan Y. Bellin of
counsel), for Theodora Corsell, appellant.
Cozen O'Connor, P.C., New York (Robert W. Phelan of
counsel), for respondent.
Order, Supreme Court, New York County (Joan A. Madden, J.), entered December 10, 2009, which denied defendant Greenwald's motion to dismiss the complaint as against him and defendant Corsell's cross motion to dismiss the breach of contract cause of action as against her, unanimously affirmed, without costs.
With respect to dismissing the breach of contract cause of action for lack of standing, we reject defendants' contention that Greenwald entered into the lease for the apartment with the wife of a principal of the insured apartment owner in her individual capacity and that therefore plaintiff, as subrogee of the insured apartment owner, lacks privity with Greenwald or Corsell. The deeds tracing the chain of ownership of the apartment do not clearly establish that only Joseph Armato transferred his undivided interest in the property to the insured corporation (see CPLR 3211[a][1]). In any event, for purposes of Greenwald's lease, the insured and Josette Armato, who is Joseph Armato's spouse, would have been co-lessors (see generally V.R.W., Inc. v Klein, 68 NY2d 560, 563-566 [1986]; Lawriw v City of Rochester, 14 AD2d 13, 15 [1961], affd 11 NY2d 759 [1962]).
We also find no merit in Greenwald's contention that the breach of contract cause of action should have been dismissed because he was no longer a tenant at the time of the fire. The record shows that the landlord retained Greenwald's security deposit; that Greenwald continued to pay the rent for the apartment and the landlord accepted the payments; and that the loss of rent claim submitted by the insured to plaintiff states that Greenwald was the tenant of record at the time of the fire. These facts, particularly when corroborated by Joseph Armato's affidavit, counter the statements contained in the September 17, 2007 letter from Corsell to Josette Armato. Thus, issues of fact exist whether Greenwald was a guarantor of Corsell's tenancy or a holdover tenant subject to a month-to-month tenancy after September 15, 2007, with the same terms and conditions as are set forth in the original lease (see Real Property Law § 232-c; City of New York v Pennsylvania R.R. Co., 37 NY2d 298, 300 [1975]; Logan v Johnson, 34 AD3d 758 [2006]).
Contrary to Greenwald's contention, the complaint sets forth all the elements of a negligence cause of action and apprises Greenwald of the acts intended to be proved (see CPLR 3013). Moreover, the evidence that Greenwald was dining at a restaurant outside the vicinity of the apartment building and was not observed near the apartment around the time of the fire does not conclusively establish that he played no part in causing the fire. Since Greenwald's whereabouts at the material time are likely to be predominantly within his and Corsell's knowledge, it would be premature to dismiss the negligence cause of action prior to discovery (see Barrios v Boston Props. LLC, 55 AD3d 339 [2008]).
We have considered defendants' remaining contentions and find them unavailing.
Mak v Silverstein Properties, Inc.


Cartafalsa, Slattery, Turpin & Lenoff, New York (David R.
Beyda and B. Jennifer Jaffee of counsel), for 120 Broadway
Holdings, LLC, appellant/respondent.
Herzfeld & Rubin, P.C., New York (Miriam Skolnik of
counsel), for Silverstein Properties Inc., respondent/appellant.
John V. Decolator, Garden City, for Ratha Mak, respondent.
Orders, Supreme Court, Bronx County (Mary Ann Brigantti- Hughes, J.), entered October 14, 2009, and June 14, 2010, which, insofar as appealed from as limited by the briefs, denied Silverstein Properties Inc.'s and 120 Broadway Holdings, LLC's motions for summary judgment on their cross claims for contractual and common-law indemnification; and granted plaintiff's motion for reargument of the October 14, 2009 order and upon reargument, denied Silverstein's motion for summary judgment on plaintiff's Labor Law section 200 and common-law negligence claims, unanimously modified, on the law, to dismiss the cross claims for contractual indemnification, and otherwise affirmed, without costs.
The court properly denied Silverstein's motion for summary judgment on plaintiff's Labor Law section 200 and common-law negligence claims. Issues of fact remain as to whether Silverstein created the allegedly dangerous condition existing thereon or had notice thereof (see Schneider v Kings Hwy. Hosp. Ctr., 67 NY2d 743, 744 [1986]; Angamarca v New York City Partnership Hous. Dev. Fund Co., Inc., 56 AD3d 264 [2008]; DeSilva v City of New York, 15 AD3d 252, 254 [2005]).
While 120 Broadway's intent to indemnify Silverstein for Silverstein's negligence can be discerned from the indemnification provision in the management agreement, that provision is void under General Obligations Law § 5-322.1 (see Haynes v Estate of Goldman, 62 AD3d 519 [2009]). Accordingly, Silverstein's cross claim for contractual indemnification is dismissed.
120 Broadway's claim for contractual indemnification also fails as a matter of law and is dismissed, as the plain language of the indemnification provision shows that Silverstein agreed to indemnify 120 Broadway only for liability arising out of those acts or omissions of Silverstein "in violation of the agreement," outside the scope of Manager's authority, or otherwise constituting gross negligence, but did not agree to indemnify 120 Broadway for Silverstein's acts of negligence.
The court properly denied summary judgment on 120 Broadway's cross claim for common-law indemnification because Silverstein's negligence has not yet been established (see Pueng Fung v 20 W. 37th St. Owners, LLC, 74 AD3d 635 [2010]).
Collado v Cruz


Gannon, Lawrence & Rosenfarb, New York (Peter J. Gannon
of counsel), for appellant.
Nicoletti Gonson Spinner & Owen LLP, New York (Pauline E.
Glaser of counsel), for respondent.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered July 23, 2010, which, to the extent appealed, denied defendant-appellant's motion for summary judgment dismissing the complaint and all cross claims against it, and granted in part defendant Cruz's cross motion for contractual indemnification, unanimously modified, on the law, to the extent of dismissing the complaint as to appellant, and otherwise affirmed, without costs.
Plaintiff tripped and fell on a broken sidewalk in front of a building owned by defendant Cruz and leased by defendant-appellant tenant for use as a grocery store. The lease provided at paragraph 30 that the tenant shall "make all repairs and replacements to the sidewalks and curbs adjacent thereto." The tenant asserts that paragraph 4 of the lease and paragraph 58 of the Addendum to the lease made the tenant responsible only for non-structural repairs. Since the sidewalk flag needed replacement, the tenant asserts that the necessary repair was structural, and it was not responsible to correct the condition.
Administrative Code § 7-210 imposes a non-delegable duty on the owner of the abutting premises to maintain and repair the sidewalk, and it was undisputed that the tenant did not create the condition or make special use of the sidewalk. Provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party, such as plaintiff (see Tucciarone v Windsor Owners Corp., 306 AD2d 162, 163 [2003]). Accordingly, the tenant's motion for summary judgment dismissing the complaint as against it should have been granted.
The tenant may be held liable to the owner for damages resulting from a violation of paragraph 30 of the lease, which imposed on the tenant the obligation to repair or replace the sidewalk in front of its store. Thus the motion court correctly denied the tenant's motion to dismiss the owner's cross claims against it.
The lease further provided, at paragraph 8, that "[t]enant shall indemnify and save harmless Owner against and from all liabilities, obligations, damages, penalties, claims, costs and expenses for which Owner shall not be reimbursed by insurance, including reasonable attorneys fees paid . . . or incurred as a result of any breach by [t]enant . . . of any covenant or condition of this lease, or the carelessness, negligence or improper conduct of the [t]enant." This Court has held that almost identical language required the tenant to reimburse the owner only for damages not covered by any insurance policy, including insurance obtained by the owner (see Diaz v Lexington Exclusive Corp., 59 AD3d 341, 342-343 [2009]). Thus, the tenant may be held liable to the owner if the owner has losses which are not reimbursed by the insurance policy the owner obtained. Accordingly, the motion court properly granted a conditional order of contractual indemnification in favor of the owner.
Zalot v Zieba


The Perecman Firm, PLLC, New York, N.Y. (David H. Perecman and
Peter D. Rigelhaupt of counsel), for appellant.
Burns, Russo, Tamigi & Reardon, LLP, Garden City, N.Y. (John
T. Pieret and Jeffrey M. Burkhoff of
counsel), for defendants third-party
plaintiffs-respondents.
Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald
S. Neumann, Jr., and Michael
Baranowicz of counsel), for third-party
defendant-respondent.

DECISION & ORDER
In an action to recover damages for wrongful death, etc., the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Hart, J.), entered July 27, 2009, as granted that branch of the defendants' motion, joined in by the third-party defendant Craftman Construction, Inc., which was for summary judgment dismissing the complaint.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the defendants and the third-party defendant Craftman Construction, Inc., appearing separately and filing separate briefs.
The Supreme Court properly determined that the defendants established their prima facie entitlement to judgment as a matter of law by submitting deposition testimony demonstrating that the plaintiff failed to identify the cause of her decedent's accident (see Hennington v Ellington, 22 AD3d 721; Tejada v Jonas, 17 AD3d 448; Schafrick v Shinnecock Bait & Tackle Co., 204 AD2d 706). Contrary to the plaintiff's contention, although the deposition transcript of the third-party defendant Jaroslaw Palczwski was not signed, it was certified by the reporter, and was properly considered in support of the defendants' motion since the excerpts thereof included in the record are not challenged as inaccurate (see Bennett v Berger, 283 AD2d 374; Zabari v City of New York, 242 AD2d 15, 17). Absent any evidence as to how the accident occurred, the plaintiff's case rests upon mere speculation as to the defendants' negligence and the applicability of the Labor Law.
In opposition to the motion, the plaintiff failed to raise a triable issue of fact. The Supreme Court properly held that the Noseworthy doctrine (see Noseworthy v City of New York, 298 NY 76) does not apply because the plaintiff and the defendants are on equal footing as to their access to knowledge of the events which caused the decedent's injuries (see Kuravskaya v Samjo Realty Corp., 281 AD2d 518; Gayle v City of New York, 256 AD2d 541). In any event, "[s]peculation, guess and surmise . . . may not be substituted for competent evidence, and where . . . there are several possible causes of [one] accident, one or more of which a defendant is not responsible for, a plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which the defendant was responsible" (Agius v State of New York, 50 AD2d 1049, 1050; see Johnson v Sniffen, 265 AD2d 304; Scheer v City of New York, 211 AD2d 778). Here, "[s]ince it is just as likely that the accident could have been caused by some other factor, such as a misstep or loss of balance, any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation" (Teplitskaya v 3096 Owners Corp., 289 AD2d 477, 478).
Accordingly, the Supreme Court correctly granted that branch of the defendants' motion, joined in by the third-party defendant Craftman Construction, Inc., which was for summary judgment dismissing the complaint.
SKELOS, J.P., BALKIN, CHAMBERS and AUSTIN, JJ., concur.

Claudio v. The Show Piers on the Hudson

Quinn McCabe LLP, New York (Christopher P. McCabe of
counsel), for appellant.
Lazare Potter & Giacovas LLP, New York (Yale Glazer of
counsel), for respondent.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered July 12, 2010, which granted so much of third-party defendant Burlington Insurance Company's motion for summary judgment as sought to dismiss the third-party complaint as against it and denied third-party plaintiff Port Parties, Ltd.'s cross motion for summary judgment, unanimously modified, on the law, to declare that Burlington has no obligation to defend or indemnify third-party plaintiff Port Parties, Ltd. in the first-party action, and otherwise affirmed, without costs.
The motion court properly charged Port Parties with knowledge of plaintiff's claim as of May 15, 2008. Service of process on Port Parties was "complete" when the summons and complaint were personally served upon an authorized agent of the Secretary of State on that date (Business Corporation Law § 306[b][1]; CPLR 311). Port Parties' contention that it did not actually receive the copy mailed to it by the Secretary of State is unsupported by the record and, in any event, unavailing. Business Corporation Law § 306(b)(1) does not make completion of service contingent upon the Secretary of State's mailing (see Flick v Stewart-Warner Corp., 76 NY2d 50, 56-57 [1990]).
We have considered Port Parties' remaining arguments and find them unavailing.
Chakrani v. Beck Cab Corp.

Feinman & Grossbard, P.C., White Plains (Steven N. Feinman
of counsel), for appellants.
Marder, Eskesen & Nass, New York (Chad P. Ayoub of
counsel), for respondent.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered August 10, 2010, which, in an action for personal injuries sustained when plaintiff was struck by a motor vehicle, denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants failed to establish their entitlement to judgment as a matter of law. Defendants' examining orthopedic surgeon found, inter alia, limited ranges of motion in plaintiff's cervical and lumbar spines, as well as in his left ankle and foot. These findings clearly raise triable issues of fact as to whether plaintiff sustained serious injuries within the meaning of Insurance Law § 5102(d) (see Servones v Toribio, 20 AD3d 330 [2005]). Furthermore, even assuming that defendants had met
their initial burden, plaintiff's submissions were sufficient to defeat the motion.
Bond v. Progressive Insurance Company


Calendar Date: January 11, 2011
Before: Peters, J.P., Kavanagh, Stein, Garry and Egan Jr., JJ.

Friedman, Hirschen & Miller, Albany (Thomas M.
Hirschen of counsel), for appellant.
Robert J. Krzys, Amsterdam, for respondent.
MEMORANDUM AND ORDER
Garry, J.
Appeal from an order of the Supreme Court (Reilly Jr., J.), entered December 14, 2009 in Schenectady County, which, among other things, denied a motion by defendant Hopmeier-Evans-Gage Agency to dismiss the complaint against it.
In 2002, plaintiff commenced a personal injury action against Robert O'Rourke and Theresa O'Rourke arising from a 1999 collision between plaintiff's snowmobile and the O'Rourkes' vehicle, which was insured by defendant Progressive Insurance Company. The O'Rourkes allegedly informed their insurance broker, defendant Hopmeier-Evans-Gage Agency (hereinafter HEG), of the action on the same day that they were served in March 2002. HEG allegedly failed to notify Progressive of the action, and no counsel appeared on the O'Rourkes' behalf. In August 2002, Supreme Court entered a default judgment against the O'Rourkes as to liability, deferring assessment of damages while plaintiff's related action against another individual was pending (see generally Bond v Giebel, 14 AD3d 849 [2005]). Upon the conclusion of the related action, a default inquest was conducted and, in April 2008, a final judgment was entered against the O'Rourkes awarding damages to plaintiff of approximately $1.2 million. Progressive declined plaintiff's request for payment. The O'Rourkes subsequently assigned their claims against HEG and Progressive to plaintiff, who commenced this action in April 2009 asserting, among other things, causes of action for negligence and breach of contract [FN1]. After joinder of issue, defendants moved separately to dismiss the complaint as time-barred. Supreme Court denied both motions, and HEG now appeals.[FN2]
Supreme Court determined that all of plaintiff's claims were based on breach of the duty to defend, that this duty continued throughout the underlying litigation against the O'Rourkes, and thus, that no cause of action in tort or contract accrued until the litigation became final in April 2008 and the breach of duty could no longer be corrected. Accordingly, the court found that the claims against HEG and Progressive were timely (see Ghaly v First Am. Tit. Ins. Co. of N.Y., 228 AD2d 551, 552 [1996]; see generally Colpan Realty Corp. v Great Am. Ins. Co., 83 Misc 2d 730 [1975]; compare Roldan v Allstate Ins. Co., 149 AD2d 20, 29 [1989]). HEG contends that the court erred in applying this reasoning to it because, as an insurance agency rather than an insurer, HEG owed the O'Rourkes no duty to defend. For purposes of this motion, HEG concedes that its alleged failure to notify Progressive of the action against the O'Rourkes constituted a breach of duty, but it asserts that any cause of action in tort or contract based on that breach accrued when the failure took place in March 2002, and was time-barred when this action was filed more than seven years later.
Even if HEG's contention that it owed the O'Rourkes no continuing duty to defend is correct, we agree with Supreme Court that the claim against it is timely. In our view, plaintiff's cause of action charging HEG with negligence, breach of duty and "errors and omissions" sounds in tort (see Santiago v 1370 Broadway Assoc., 96 NY2d 765, 766 [2001]), is governed by the three-year negligence statute of limitations (see CPLR 214 [4]; Chase Scientific Research v NIA Group, 96 NY2d 20, 30 [2001]), and, for the reasons stated below, did not accrue until the April 2008 judgment awarded damages against the O'Rourkes.
This Court has not previously addressed the specific question of the time of accrual of a cause of action against an insurance broker for failing to give proper notice to an insurer of a claim against an insured, but the Appellate Division, First Department has held that such a claim accrues when injury results from the broker's failure, rather than at the time of the failure itself (see Lavandier v Landmark Ins. Co., 26 AD3d 264, 264 [2006]). This Court has previously held that a comparable cause of action arising out of an insurance broker's breach of the common-law duty to procure coverage requested by an insured sounded in tort and did not accrue at the time of the broker's breach, but when the insured's vehicle was involved in an accident for which the coverage was inadequate (see Venditti v Liberty Mut. Ins. Co., 6 AD3d 961, 962 [2004]; see also Chase Scientific Research v NIA Group, 96 NY2d at 30). We perceive no reason to reach a different conclusion in the current circumstances. 
It is well established that a tort claim accrues when it "becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint" (Kronos, Inc. v AVX Corp., 81 NY2d 90, 94 [1993]). Accordingly, when damage is an essential element of a tort, the claim does not accrue at the time of the defendant's wrongful act or the plaintiff's discovery of the injury, but when harm is sustained (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 140 [2009]; Kronos, Inc. v AVX Corp., 81 NY2d at 94; Schultes v Kane, 50 AD3d 1277, 1278 [2008]). The injury underlying plaintiff's claim against HEG was not sustained at the time of HEG's alleged breach, but when that breach later caused harm, in the form of the judgment entered against the O'Rourkes. "Damages are a necessary element of a negligence claim which must be pleaded and proven" (Siler v Lutheran Social Servs. of Metro. N.Y., 10 AD3d 646, 648 [2004] [citations omitted]). The O'Rourkes could not have pleaded or proven any harm arising from HEG's alleged breach of duty prior to the April 2008 judgment, and any negligence claim they might have sought to assert against HEG would have been subject to dismissal as premature (see Cutro v Sheehan Agency, 96 AD2d 669 [1983]; see also Matter of Martinez v State of New York, 62 AD3d 1225, 1226-1227 [2009]). As the O'Rourkes' claim against HEG, later assigned to plaintiff, did not become enforceable until the judgment against them was entered, plaintiff's action was timely, and Supreme Court properly denied HEG's motion to dismiss the complaint against it.
Peters, J.P., Kavanagh, Stein and Egan Jr., JJ., concur.
ORDERED that the order is affirmed, with costs.
Footnotes

Footnote 1:As against HEG, the complaint included a single cause of action alleging that HEG breached a duty to the O'Rourkes, was negligent, and committed "errors and omissions." In opposing HEG's motion to dismiss, plaintiff contended that these allegations embraced theories of recovery in both negligence and breach of contract.

Footnote 2: Progressive also appealed initially, but this Court granted its subsequent application for leave to withdraw and discontinue the appeal.

Solis v. Silvagni


Calendar Date: January 14, 2011
Before: Mercure, J.P., Peters, Spain, Malone Jr. and McCarthy, JJ.

Kaplan, Hanson, McCarthy, Adams, Finder &
Fishbein, Albany (Paul G. Hanson of counsel), for appellant.
Finkelstein & Partners, L.L.P., Newburgh (Ann R.
Johnson of counsel), for respondent.
MEMORANDUM AND ORDER
Spain, J.
Appeal from that part of an order of the Supreme Court (O'Connor, J.), entered July 16, 2010 in Ulster County, which denied defendant's motion for summary judgment dismissing the complaint.
Plaintiff commenced this action alleging injury to her right knee resulting from a vehicle/pedestrian collision in which the motor vehicle was operated by defendant. Specifically, on November 12, 2007, defendant was backing up her car when she hit plaintiff, causing plaintiff to lock her knees to avoid falling down. Defendant moved for summary judgment dismissing the complaint. Supreme Court partially granted the motion, dismissing plaintiff's serious injury claims of significant disfigurement and permanent loss of use, but denied the motion with regard to her claims of a permanent consequential limitation, significant limitation and the 90/180-day category of Insurance Law § 5102. Defendant appeals, seeking summary judgment on those remaining claims.
Turning first to plaintiff's claim on the 90/180-day category of Insurance Law § 5102 (d), we agree with defendant that summary judgment should have been granted. A serious injury under this category is "established through objective medical evidence, where a nonpermanent, medically-determined injury prevented [the] plaintiff from performing substantially all of his or her usual and customary daily activities for 90 of the first 180 days following the accident" (Shackett v Nappi, 75 AD3d 709, 710 [2010] [internal quotation marks and citations omitted]; see Palmeri v Zurn, 55 AD3d 1017, 1019 [2008]). "The curtailment of plaintiff's daily activities must be to a 'great extent rather than some slight curtailment'" (Baker v Thorpe, 43 AD3d 535, 537 [2007], quoting Licari v Elliott, 57 NY2d 230, 236 [1982] [citation omitted]).
In her deposition testimony, plaintiff admitted that after the accident, she continued to work full time as a veterinary assistant. Although she claims that she suffered limitations at work, in her housework and in recreational activities, the alleged limitations are not distinguishable from limitations which she admitted began after her involvement in a prior accident (see Shackett v Nappi, 75 AD3d at 711)[FN1]. Indeed, plaintiff's 90/180-day claim in this action essentially is premised on limitations she experienced following surgery to her right knee; however, this surgery was not performed until March 2008, 136 days after the accident. Accordingly, as plaintiff has offered proof showing only that she was prevented from performing substantially all of her usual daily activities for 44 of the first 180 days following the accident, her 90/180-day claim should have been dismissed (see Shackett v Nappi, 75 AD3d at 711; Clements v Lasher, 15 AD3d 712, 713-714 [2005]; Dongelewic v Marcus, 6 AD3d 943, 944 [2004]).
Likewise, we conclude that defendant was entitled to summary judgment on the permanent consequential and significant limitation of use serious injury categories (see Insurance Law § 5102 [d]). "[I]n order to establish a permanent consequential limitation or a significant limitation of use, the medical evidence submitted by plaintiff must contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff's present limitations to the normal function, purpose and use of the affected body organ, member, function or system" (John v Engel, 2 AD3d 1027, 1029 [2003]; see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]; Tandoi v Clarke, 75 AD3d 896, 897 [2010]; Vargas v Tomorrow Travel & Tour, Inc., 74 AD3d 1626, 1627-1628 [2010]; Dean v Brown, 67 AD3d 1097, 1098 [2009]). We agree with defendant that plaintiff failed to proffer any quantitative evidence or qualitative assessment that could support a finding of a permanent or significant limitation of use. Specifically, plaintiff relies upon the report and medical records of physician Kenneth Rauschenbach, who performed an arthroscopy on plaintiff's right knee following the accident. Prior to that procedure, Rauschenbach reported plaintiff's subjective complaints of pain, and his records reveal that he originally suspected a medial meniscus tear. However, an MRI and observations during arthroscopic surgery instead revealed significant degeneration, chondral defect, a small lateral meniscus tear but no large tears.
Defendant also proffered the report of physician Howard Luks, who examined plaintiff in October 2008 and reviewed Rauschenbach's records. Luks noted Rauschenbach's findings and the MRI report and concluded that plaintiff had degenerative changes which preexisted the accident. Specifically, he reported "no effusion [and] two-well healed arthroscopy portals. . . . There is no pain with patellar compression [and] no pain over the lateral or medial patellaer facets," and only mild medial joint line pain and mild pain over the medial condyle. Supreme Court noted this evidence but found that because Luks had not discussed the significance of the small lateral meniscus tear shown in the MRI or the cartilage defect reported by Rauschenbach, defendant had not met her burden of demonstrating that plaintiff had failed to proffer sufficient proof of a serious injury under the permanent and significant limitations of use categories.
We disagree. Defendant did not need to rely on Luks's opinion to meet her burden of proof because the evidence of injury in the MRI and Rauschenbach's records, albeit objective, is not enough to meet the requirements of these specific statutory categories of serious injury (see Shvartsman v Vildman, 47 AD3d 700, 701 [2008] [tear in tendon, alone, not sufficient evidence of serious injury]). Plaintiff submitted no proof of a specific limitation on her range of motion; indeed, plaintiff's range of motion is reported as full by both Rauschenbach and Luks. Further, although plaintiff's subjective complaints of pain are noted, Rauschenbach provided no description or qualitative assessment of plaintiff's limitations before or after the surgery. Accordingly, summary judgment should have been granted on the permanent loss of use and significant limitation of use categories as well (see Licari v Elliott, 57 NY2d at 239-240; Vargas v Tomorrow Travel & Tour, Inc., 74 AD3d at 1627-1628; Palmeri v Zurn, 55 AD3d at 1019; Motrie v Reid, 45 AD3d 941, 943 [2007]; Daus v Cassavaugh, 17 AD3d 837, 838-839 [2005]; John v Engel, 2 AD3d at 1029).
Mercure, J.P., Peters, Malone Jr. and McCarthy, JJ., concur.
ORDERED that the order is modified, on the law, with costs to defendant, by reversing so much thereof as partially denied defendant's motion; motion granted in its entirety, summary judgment awarded to defendant and complaint dismissed; and, as so modified, affirmed.
Footnotes
Footnote 1:Plaintiff was involved in motor vehicle accidents in October 2006 and October 2007. She commenced separate actions alleging Insurance Law § 5102 serious injuries stemming from each of these accidents as well.

 

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