Coverage Pointers - Volume XII, No. 19

Dear Coverage Pointers Subscribers:

This is our "Welcome to Spring" Edition of Coverage Pointers.  Not that we pay attention to weather, or anything .

Opening of Capital District Office - Please Welcome Cassandra Kazukenus

Hurwitz & Fine, P.C. is proud to welcome Albany's own Cassie Kazukenus to the firm's growing Insurance Coverage, Extra-contractual and General Liability Defense Teams.

Coming to us with the insider's perspective and an eye toward improving outside counsel efficiencies, Cassie has several years of experience as a claim counsel for a highly respected insurance company in the Capital District. Cassie has direct experience providing support and guidance to adjusters and agents related to policy and claim issues. She has led training sessions on a wide range of compliance and coverage topics and we hope to keep her on the road doing more of the same for our carriers and friends. She also served as a Compliance Analyst charged with drafting and submitting contracts for approval by various insurance departments, ensuring compliance with state regulations.

We couldn't be happier to have her aboard.  Cassie will be spending her first few weeks at our Buffalo office.

As a reminder, our Coverage and Extra-Contractual Team handles matters throughout New York State, from Mineola to Plattsburgh to Binghamton to Chautauqua and everywhere in between.

DRI ICCI

The DRI Insurance Coverage and Claims Institute will be held in Chicago from March 30 - April 1.  Audrey will be attending, and it is a superb program.  I'll be heading to warmer weather, instead, more particularly, to Nashville and the PLRB/LIRB Claims Conference.

Are You PLRB/LIRB BOUND?

For those attending the PLRB/LIRB Claims Conference in Nashville from April 3 to April 6, I hope you have a chance to stop in and say "hello".  Along with April Elkovich from the Meadowbrook Insurance Group, we'll be presenting on

Approaching the Unapproachable:
How to Simplify Complex Coverage Conundrums

The sessions are on Tuesday between 10:30 - 12:00 and Wednesday between 8:30 - 10:00.  The first session will be video-taped as part of a PLRB learning module.  The program is designed to help you:

  • Review the importance of following state law and practices;
  • Dissect a complex coverage/tort dispute and reason through a cogent analysis to develop a coverage position;
  • Examine the interplay between your policy and others -- primary, co-primary, excess, umbrella, etc. 
  • Develop and communicate a well-reasoned, understandable coverage position
If you plan on being in Nashville, and would like to get a chance to meet for coffee or an adult beverage, do let me know.

Steve Peiper Piping:

Another two weeks, and another shut out for first party cases.  We do have two interesting Labor Law decisions for your perusal this week.  We would also invite you to take a look at the First Department's decision in Mendoza where the Court offers a lengthy discussion and review of the extent of a preclusion order as a result of a discovery sanction.  In addition to the majority opinion, we would also encourage a review of Justice Acosta's well-reasoned opinion offered in dissent. 

That is it for cases this week, but please allow me this quick missive.  Although my practice is devoted almost exclusively to insurance work, when permitted I will dabble in the odd defense file.  Our coverage team also works hand-in-hand with our decorated Labor Law (principally Mike Perley and David Adams) team on third-party issues related to indemnity/coverage arguments that invariably arise in multi-party Labor Law litigation.  Though certainly not in every case, I am often astounded at issues that are overlooked in third-party practice.  As we constantly refrain Coverage and Tort are Apples and Oranges....but they are often both part of the same cocktail that makes up complex litigation. 

If you take nothing else from this issue, I want to again impress upon you the vital importance of understanding third-party practice and setting up a strategy in defending a case with this in mind.  We have lectured on the issue of third-party practice, addressing tender issues, and unraveling the interplay been the tort indemnity world and the insurance coverage world (see Dan's note above).  If you looking for an update, please contact Dan, Audrey or myself. 

Steve
[email protected]

Training

Speaking of training, we'll be in Phoenix next week, providing claims training and we're happy to come out and help you. If you need someone to stop out to your to assist your claims professionals, let us know. Here's a list of some of the topics on which we can present and we can manuscript any kind of coverage or tort program that might be important for your book of business.  The first three topics, the ones highlighted below, have been the most popular ones recently.  We have a traveling troupe so contact us and we can schedule a visit at a mutually convenient time. 

    1. Tenders, Additional Insured Obligations, Indemnity Agreements and Priority of Coverage
    2. Good Faith, Consequential Damages and Extra-Contractual Liability - the New York Experience
    3. NY Disclaimer Letter - Nuts & Bolts: How to Create and Write and Send a Disclaimer Letter, and How Not To. (The Reservation of Right Letter Myth)
    4. Uninsured and Underinsured Claims Handling
    5. Preventing Bad Faith Claims - First Party Cases
    6. Preventing Bad Faith Claims - Liability Cases
    7. New Rules Regarding Notice, Developing Proof of Prejudice and a Strategic to Avoiding Direct Actions
    8. The Cooperation Clause - How to Handle
    9. No- Fault Arbitrations and Appeals: Mock Arbitrations, Preserving the Record, Taking an Appeal 
    10. No Fault Regs - Knowledge is Power
    11. An Auto Liability Policy Primer
    12. A CGL Policy Primer
    13. A Homeowners Liability Policy Primer
    14. EUO's Under First Party Policies
    15. How to Resolve Coverage Disputes:  DJ Actions, Insurance Law Section 3420 Direct Actions (Choice, Strategy and Timing)
    16. Insured Selected Counsel: When is it Necessary and How to Avoid it? 
    17. Mediation and the Role of the Mediator
    18. ADR and How to Get to "Yes".
    19. The Internet as a Tool for the Claims Representative
    20. Construction Cases - The Interplay Between Indemnity

From Audrey Seeley, the Queen of No Fault:

I hope those that celebrated St. Patrick's Day are recovering. 

We have a really important and exciting development in NY No-Fault law to report to you that impacts Western New York!!  Our own Margo Lagueras, Esq. argued an appeal in Erie County, County Court regarding the burden of proof on each party when only the insurer seeks summary judgment in a No-Fault matter on lack of medical necessity.  We have seen similar decisions from the Appellate Term, Second Department, which is what we relied upon on appeal.  However, we have not seen any decisions within the Fourth Department on this issue. 

To provide an understanding of how significant this decision is, we must take you back about two years when we began filing summary judgment motions on behalf of the insurer based upon lack of medical necessity.  We established issuance of a timely denial, which was generally not challenged by plaintiff.  Thus, since we established the denials were timely the insurer could rely upon the defense of lack of medical necessity.  Then, we established through the affirmed IME or peer review report that the service was denied base upon lack of medical necessity.  Again, the expert reports were not generally challenged.  The general opposition to the motion was an attorney affirmation or affidavit and the argument that by admitting receipt of a claim (no bills were in evidence) plaintiff met its burden on medical necessity.  Thus an issue of fact precluded the motion being granted. 

The County Court disagreed.  It held that once the insurer has met its burden on lack of medical necessity the burden shifts to the plaintiff and evidence of submission of the claim to the insurer and an attorney affidavit in opposition to the motion is insufficient to establish medical necessity.  The decision is subject to appeal and we will keep you informed on the status.

The potential application of this decision reaches beyond Erie County.  Again, we have not seen or heard of another decision from a jurisdiction with the Fourth Department on this issue.  While not binding outside of Erie County it is certainly persuasive authority in other jurisdictions where this issue has not been addressed.

 Finally, it is not too late to sign up for the DRI - Insurance Coverage and Claims Institute being held March 30 - April 1.  While there are top notch speakers from across the country on the program, the program also presents good marketing and networking opportunities.  There are multiple receptions and smaller dine-arounds available for everyone to participate in.  You are not required to be a DRI member to attend either.  Also, if you are an in-house attorney, as defined by DRI, your registration may be free. 

If you have any questions regarding the above decision or the DRI program please do not hesitate to contact me at [email protected] .

Audrey

A View Through the Looking Glass From One Hundred Years Ago

Exactly one hundred years ago today, a British writer looked a century into the future to predict the status of women in society.  J.C. Bristow-Noble, more famous later for writing dog-training books, crafted the piece. If you want to read the entire article, click here.  His offering included the following predictions:

The Woman of the Future
by J.C. Bristow-Noble
March 18, 1911
Penny Illustrated Paper
(London, England)

Speculation has been rife during the last decade or so as to what manner of person the woman of the future will be.  Almost every writer of any note had his or her say on the subject, and it is safe to prophesy that if only the pen-pictures painted ruing the last twelve months of, to many minds, the mysterious female, were collected and printed in book form, we should be provided with about the most novel, interesting and amusing volume that has ever been published .

Mr. (George Bernard) Shaw . holds the original and embarrassing opinion that much of women's beauty is wrapped up in her legs, and that accordingly she should laugh to scorn her innate modesty, and, casting aside the skirt and petticoat, flaunt her least conspicuous limbs in the airy costume of the chorus girl . Personally, I do not entertain the least doubt whatever that women will cling with a grim earnestness to her skirts as long as we and the world lasts.  She, obviously unlike the frivolous dramatist, knows their true worth.

The plain woman in the drawing-room can tell you why the men buzz around her in preference to the pretty woman.  It's the way she manipulates her skirts that attracts them.  "Hot lot, that woman," they say.  Let's talk to her.

A Century Hence

Again, rise, please from your tomb a hundred years hence and perhaps you will be astonished to find woman not a jot cleverer than her great-grandmother was.  Indeed, she will not have the amount of brains that the present-day woman can boost.

She will just about have got that accursed vote, but it will be as nothing other; and she will know no more and care no more about politics than the Winsome Winston.  But in business matters, she naturally will be superior to her great-grandmother, but not of her own free will but from necessity.  For statistics clearly prove that a hundred years hence there will be twice as many women earning a precarious wage in the city office than there are to-day.

The little typist sitting on her stool vows that she has no desire to marry - indeed, she loathes man, and is as happy as the day is long.  Gentle reader, show some of them a picture of a little villa with a bit of ivy crawling up the wall . containing a cradle to rock, a potato to peel and a little "general to howl at.  They will fall at their feet and offer up their prayers to you if you will give them that little kingdom; and thus it will be with many women for all time.  A woman is a woman and try how she may, she cannot escape from herself.

Bristow-Noble concludes by stating that, "A hundred years hence, the fashionable age at which to marry will be between forty and fifty," though it seems unclear given the context if he's talking about men or women.

100 Years Ago Next Week:

We cannot let pass, the anniversary of one of the most tragic and deadly factor fires in US history, the Triangle Shirt Waist Fire.  Killing 146 factory workers, mostly young girls and women, their deaths led to the first dramatic reflection on occupational safety standards that spearheaded safety-in-workplace regulations.   Caught behind locked doors and a single fire escape, many of these young women threw themselves out of the ninth floor windows, to die on the pavement below.  Every newspaper in the country covered this tragedy. The New York Times report started out this way:

 

New York Times

March 26, 1911

 

141 MEN AND GIRLS DIE IN WAIST FACTORY FIRE
TRAPPED HIGH UP IN WASHINGTON PLACE BUILDING
STREET STREWN WITH BODIES
PILES OF DEAD INSIDE;

The Flames Spread with Deadly Rapidity Through Flimsy Material Used in the Factory

Three stories of a ten-floor building at the corner of Greene Street and Washington Place were burned yesterday, and while the fire was going on 141 young men and women -- at least 125 of them mere girls -- were burned to death or killed by jumping to the pavement below.

In This Week's Issue of Coverage Pointers:

KOHANE'S COVERAGE CORNER
Dan D. Kohane

[email protected]

  • Carrier Allowed to Conduct Investigation Before Disclaiming
  • In Sexual Assault Matter, Law Firm Errors and Omissions Policy Covers Negligent Hiring and Supervision Claim
  • Tower Wins Another Late Notice Case Where Insured Conducts No Investigation as to Seriousness of Accident

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

  • Disability Attributed to Accident After Consideration of Pre-Existing Conditions
  • Allegation of Fracture Is Dismissed
  • No Permanent or Significant Injuries Where Injuries Have Resolved and Plaintiff Has Full ROM
  • Defendants Fail to Make Prima Facie Showing
  • Plaintiff's Failure to Submit Admissible Evidence Contemporaneous with Accident Results in Dismissal
  • Yet Again, Failure to Submit Competent, Contemporaneous Medical Evidence of Significant ROM Limitations Wins Dismissal
  • Requirements for Summary Judgment and Trial Are Not the Same
  • Defendants' Neurologist Fails to Establish That Subject Accident Did Not Cause an Aggravation/Reactivation/Exacerbation of Prior Injuries
  • Certification of One Expert's Report Is Insufficient to Affirm Contents of Annexed Report of Other Expert
  • Jury Verdict Set Aside as Contrary to the Weight of the Evidence and Plaintiff Wins New Trial

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

A MUST READ - SIGNIFICANT DEVELOPMENT IN NEW YORK NO-FAULT LITIGATION IN WESTERN NEW YORK

  • Plaintiff, To Survive Summary Judgment On Lack Of Medical Necessity, Must Present More Than Just Attorney Affidavit And Proof of Claim Submission To Refute Conclusions In IME Report

ARBITRATION

  • Insurer Properly Invoked Intoxication Exclusion
  • Insurer Properly Denied Claim Based Upon Lack Of Accident And Exclusion For Intentional Act
  • Reimbursement For Manipulation Under Anesthesia Properly Denied.
  • IME Physician's Alleged Misread Of Medical Record Leads To Finding Of Medically Necessary Diagnostic Tests.
  • Failure To Elaborate On Lack Of Necessity Of Surgery Fatal But Apportionment Opinion Will Be Applied.

LITIGATION

  • Addition Verification Request Was Clear And Still Outstanding Therefore Action Premature
  • Insurer Demonstrated Failure To Appear For IME
  • Plaintiff's Failure To Obtain Acknowledge of Service From Insurer Was Defective Service

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

  • Driver of Garbage Truck's Labor Law 241(6) Dismissed Where He Was Not Engaged in a Protected Activity at the Time of the Injury
  • Single Family Home Exception Not Helpful Where there was a Question of Fact as to the Homeowner's Direction and Control of the Work. 
  • A Preclusion Order for Discovery Abuses Does Not Preclude a Party From Moving for Summary Judgment

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

  • Named Windstorm or Multi-Peril Occurrence? - Louisiana
  • Can Husband's Failure to Cooperate be Imputed to Wife? - Massachusetts 

JEN'S GEMS
Jennifer A. Ehman

[email protected]

  

  • Question of Fact as to Whether Plaintiff Had an Insurable Interest in Vehicle
  • Court Dismisses Claims Against Insurance Broker Finding No Specific Misrepresentation
  • Court Denies Permanent Stay of Arbitration Where Petitioner Fails to Establish that the Other Vehicle Involved in the Accident was Uninsured
  • Court Determines that Insurance Policy Contemplated Coverage for Use of Stairwells as an Activity that was Necessary or Incidental to Insured's Use of the Premises 

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

 

First Party Property Claims Require Direct

Physical Loss to Insured Property

 

That is all for now - our best wishes to you and yours.

 

Dan

 

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

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

NEWSLETTER EDITOR
Dan D. Kohane

[email protected]


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


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


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


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


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


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


03/10/11         New York City Housing Authority v. Tower Insurance Co.
Appellate Division, First Department
Carrier Allowed to Conduct Investigation Before Disclaiming
There are two lines of cases that often collide when a carrier fails to deny a claim within about 30 days and the denial is based on late reporting.  One line of cases raps carriers on their corporate knuckles for not immediately denying coverage when it is clear that the notice given was untimely.  Another line underscores the right of an insurer to conduct an investigation before denying coverage, rather than shooting first and taking prisoners later.

This case is representative of those cases that allow an insurer to conduct “a prompt, reasonable investigation into other possible grounds for disclaimer; in fact, a reasonable investigation is preferable to piecemeal disclaimers'"  Before denying coverage an insurer can determine whether plaintiff had contemporaneous knowledge of the incident, and whether plaintiff was actually insured via a written contract with its contractors.
Editor’s Note:  Document, document, document that investigation.   Another win by Tower Insurance, a company that has almost single-handedly been the architect of the late notice law in the last few years.
03/08/11         Gladstein & Isaac v. Philadelphia Indemnity Insurance Co.
Appellate Division, First Department
In Sexual Assault Matter, Law Firm Errors and Omissions Policy Covers Negligent Hiring and Supervision Claim
Allegations in the underlying complaint that plaintiffs' law firm negligently hired and supervised an attorney who purportedly made sexual advances to a client, fall within the type of errors and omissions coverage provided by defendant's professional liability insurance policy as a “wrongful act.”
03/08/11     Tower Insurance of New York v. Amsterdam Apartments, LLC
Appellate Division, First Department
Tower Wins Another Late Notice Case Where Insured Conducts No Investigation as to Seriousness of Accident
The insureds' building superintendent's knowledge of the accident and injuries is imputable to the building owners and thus the insured knew of the accident 76 days before giving notice to the carrier.  The building owners undertook no investigation of the incident to confirm the belief that the injury was slight. The building superintendent observed the underlying plaintiff bleeding from the head and being removed from the accident scene by ambulance.


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


03/10/11         MacMillan v. Cleveland
Appellate Division, Third Department
Disability Attributed to Accident After Consideration of Pre-Existing Conditions

Defendant presented plaintiff’s medical records reflecting a long history of back pain and three prior injuries in the months preceding the accident.  In opposition, plaintiff testified regarding her work despite her prior injuries and pre-existing conditions.  She also proffered the affidavit of her physician who disabled her from work for more than four months following the accident.  He also compared before and after MRIs noting a significant increase in deterioration from L1 to L5.  However, because he failed to specify the percentage of restriction or the clinical tests used to support his observations, his affidavit was insufficient to raise a triable issue of fact.

This deficiency was cured, however, by the submissions of plaintiff’s chiropractor, who treated her before and after the accident and provided a specific assessment concluding the limitations were significant and substantially aggravated by the accident.  In addition, the IMEs by the no-fault carrier’s and the workers’ compensation carrier’s orthopedic surgeons both found that plaintiff’s pre-existing degenerative condition was aggravated by a prior work-related injury and again by the collision and apportioned 50% of her “moderate to marked disability of the lumbar spine” to each occurrence.  Defendant did not refute these reports so evidence as to causation was unchallenged.

The two-judge dissent found plaintiff’s physician’s affidavit to be “patently deficient not only because he failed to specify percentages of limitation and underlying clinical tests or explain the degree to which the October accident aggravated plaintiff’s numerous preexisting conditions,” but also because he did not relate the MRI to plaintiff’s physical complaints or specify any contemporaneous quantitative or qualitative degree of limitation.  In addition, neither the chiropractor nor the two other physicians reviewed the MRI and therefore could not relate the MRI with the symptoms.  As such, the dissents’ view is that these submissions did not cure the defective affidavit of plaintiff’s treating physician and, in addition, the reports were not contemporaneous with the accident, and the finding of a spasm, absent evidence that it was “objectively ascertained,” is not considered objective evidence of an injury.

Because plaintiff’s evidence did not reveal a total loss of use, and her bill of particulars did not present a claim under the permanent consequential loss of use category, the dismissal of these claims was affirmed, while the claims under the significant limitation of use and the 90/180-day categories were reinstated.

03/08/11         Jackson v. Delossantos-Diaz
Appellate Division, First Department
Allegation of Fracture Is Dismissed

Defendant’s expert radiologist determined that any bony abnormality was caused by a pre-existing degenerative condition and not by a fracture.  Plaintiff’s radiologist concluded that plaintiff sustained a left shoulder fracture, but did not state the cause and therefore failed to raise a triable issue of fact. 

Plaintiff’s 90/180-day claim was also dismissed on appeal because plaintiff only submitted “self-serving” testimony, which was insufficient to support the claim.

However, plaintiff’s claim under the significant limitation category survived dismissal because defendant’s orthopedic expert found limitations in plaintiff’s left shoulder but did not present findings to show whether or not the limitations were significant or caused by the accident.

03/08/11         Porter v. Bajana
Appellate Division, First Department
No Permanent or Significant Injuries Where Injuries Have Resolved and Plaintiff Has Full ROM

The trial court had granted defendant’s motion with regard to the claim of permanent injury, but denied with respect to the claim of a non-permanent injury.  On appeal, the order is modified to grant both and dismiss the complaint as defendant’s expert neurologist and radiologist established that plaintiff’s injuries had resolved, that she had full range-of-motion in her cervical and lumbar spine, and that she suffered from a pre-existing degenerative condition which was the cause of her injuries.  Plaintiff’s expert failed to address or rebut this evidence.  Her 90/180-day claim was also dismissed as it was based only on subjective statements and not substantiated with any medical evidence.

03/08/11         Reyes v. Diaz
Appellate Division, First Department
Defendants Fail to Make Prima Facie Showing

The denial of defendants’ motion is affirmed on appeal as defendants failed to meet their burden where their orthopedic surgeon did not specify the objective tests used to determine the range-of-motion of plaintiff’s hip, they failed to offer any expert opinion regarding plaintiff’s alleged psychological injuries, and their radiologist’s opinion that plaintiff’s herniation was degenerative was too “equivocal.” 

03/08/11         Brite v. Miller
Appellate Division, Second Department
Plaintiff’s Failure to Submit Admissible Evidence Contemporaneous with Accident Results in Dismissal

On appeal, the dismissal of plaintiff’s complaint was affirmed as, once again, no competent, objective medical evidence of any range-of-motion limitations of any of the alleged injuries that was contemporaneous with the accident was submitted by plaintiff.

03/08/11         Foley v. Liloia
Appellate Division, Second Department
Yet Again, Failure to Submit Competent, Contemporaneous Medical Evidence of Significant ROM Limitations Wins Dismissal

Here, the trial court’s decision was reversed on appeal and the complaint dismissed.  In opposition to the motion, plaintiff’s only admissible submission was the report from her orthopedic surgeon which was based on an examination performed more than four years after the accident.  That examination was not contemporaneous and therefore did not show any initial limitations that were significant.

03/08/11         Germain v. Irizarry
Appellate Division, Second Department
Requirements for Summary Judgment and Trial Are Not the Same

The court reminds defendants that plaintiff’s burden at trial is to establish that she sustained a serious injury within the meaning of § 5102(d), which does not necessarily require that her experts review all her prior medical records or address all prior accidents. 

In this case, a bifurcated trial resulted in a verdict of 100% liability against defendant.  However, in the damages portion, it was disclosed that plaintiff had been involved in two prior accidents, a work related accident in 1998, and a rear-end collision in 1999, both resulting in injuries to her spine.  Plaintiff’s only witness, a physical medicine and rehabilitation physician, admitted that plaintiff had not advised him of the prior injuries and that he did not see the MRIs from before the accident at issue.  However, during direct examination he was asked to make certain assumptions, including whether, having sustained injuries in 1999 but having returned to work full time with no limitations, the accident of 1999 would have been the cause of plaintiff’s present symptoms.  Plaintiff’s expert opined that, based on the fact that plaintiff alleged she never had prior pain, the injuries sustained were the result of the accident at issue and, as they persisted and did not respond to treatment even after five years, that they were permanent.

When the jury was unable to reach a verdict, defendant renewed her motion for judgment as a matter of law, contending that plaintiff’s expert’s opinion regarding causal connection was speculative because he was unaware of plaintiff’s prior accidents.  Defendant’s motion was denied, resulting in this appeal.  Quoting Pommels, the court stated that when “contributory factors interrupt the chain of causation between [a plaintiff’s] accident and claimed injury – such as . . . a preexisting condition – summary dismissal of the complaint may be appropriate.”  Here, however, the court found that there was a rational process by which the jury could have attributed plaintiff’s injuries to the accident at issue rather than the prior accidents, and that defendant’s assertion, that plaintiff’s expert must address all prior accidents and review all medical records, and the authority cited in support, was inapplicable as all the cases involved summary judgment where the plaintiff failed to rebut defendant’s showing.  The standard at trial is distinct.

03/08/11         Keenum v. Atlins
Appellate Division, Second Department
Defendants’ Neurologist Fails to Establish That Subject Accident Did Not Cause an Aggravation/Reactivation/Exacerbation of Prior Injuries

Plaintiff was involved in a work-related accident in May 2007, a car accident in October 2007, another car accident in April 2008, and then the subject car accident in September 2008. 

Defendant’s examining neurologist examined plaintiff in February 2009 and found significant range-of-motion limitations in the cervical and lumbar spine and in both shoulders.  He concluded that the neck restrictions were due to a prior surgery and that “most” of plaintiff’s symptoms could be explained by osteoarthritis of the spine, the progressive nature of the disease, and the accidents which cause temporary soft tissue sprains, all of which had resolved.  He did not address, however, the allegations in plaintiff’s bill of particulars that the subject accident aggravated, reactivated and exacerbated pre-existing injuries and degenerative conditions and therefore, he failed to establish that plaintiff did not sustain an aggravation, reactivation and/or exacerbation of his prior injuries.

03/08/11         McLoud v. Reyes
Appellate Division, Second Department
Certification of One Expert’s Report Is Insufficient to Affirm Contents of Annexed Report of Other Expert

Plaintiffs’ complaint is dismissed on appeal as none of the reports submitted in opposition raised a triable issue of fact.  Records were either uncertified, or indicated plaintiff had full ROM in his right knee, or did not explain inconsistencies in findings, or reported only a 12% limitation, which is insignificant, or merely noted a torn menisci, which is not evidence of a serious injury without objective evidence as to the extent of the limitations and its duration.  In addition, the certification of one physician was insufficient to affirm the contents of an annexed medical report of another physician.

03/01/11         Jun Suk Seo v. Walsh
Appellate Division, Second Department
Jury Verdict Set Aside as Contrary to the Weight of the Evidence and Plaintiff Wins New Trial

Plaintiff was involved in a car accident in 1999, and in the another one, the subject accident, in 2006.  Defendant presented testimony of a physical medicine and rehabilitation expert who examined plaintiff in 1999 and found neck stiffness, limited range-of-motion, a herniation at L5-S-1, protrusions at L4-L5, and an S-1 radiculopathy, and opined that plaintiff had a permanent partial disability.  Defendant also presented the testimony of a neurologist who similarly examined plaintiff in 1999 and found decreased range-of-motion in the cervical and lumbosacral areas of the spine, as well as in the right shoulder and arm.  In addition, the orthopedic surgeon who examined plaintiff in 2007, after the subject accident, found that the subject accident did not result in significant limitations and that the MRIs revealed mere bulges, not herniations.
Plaintiff presented his neurologist’s testimony that he sustained herniations at C4-5 and C5-6, and providing specific range-of-motion limitations as compared with the norm.  Plaintiff also underwent a discectomy and a year later was found to have significant cervical range-of-motion limitations.  The surgeon who performed the discectomy further testified that plaintiff’s injuries were permanent.
The jury found that plaintiff did not sustain a serious injury.  Plaintiff moved to set aside the verdict both as against the weight of the evidence and because defendant’s counsel allegedly made highly prejudicial and inflammatory remarks in summation.  The court concluded defendant’s counsel’s summation remarks were highly prejudicial and granted a new trial, but did not address whether the verdict was contrary to the evidence.

On appeal, the court affirmed but found that the summation remarks were not so inflammatory to warrant a new trial.  Rather, the court determined that a new trial was warranted because none of defendant’s witnesses rebutted plaintiff’s showing that he underwent a discectomy or that the surgery was unnecessary.  Therefore, the jury’s verdict “could not have been reached on any fair interpretation of the evidence.”


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


A MUST READ - SIGNIFICANT DEVELOPMENT IN NEW YORK NO-FAULT LITIGATION IN WESTERN NEW YORK!
3/9/11             Newfane Family Chiropractic a/a/o Trisha Livergood v. State Farm Gen. Ins. Co., County Court, Erie County, Judge Michael D’Amico
Plaintiff, To Survive Summary Judgment On Lack Of Medical Necessity, Must Present More Than Just Attorney Affidavit And Proof of Claim Submission To Refute Conclusions In IME Report
Our own Margo Lagueras, Esq. argued this appeal and to our knowledge it is the first decision from County Court on this issue.  Congratulations Margo!!  This is the first decision emanating from the Erie County, County Court, that we are aware of, regarding the burden of proof on each party when only the insurer seeks summary judgment.  Further, while we try to keep our eyes and ears open to decisions from other jurisdictions that fall within the Fourth Department on this exact issue, we have yet to read or hear of another decision on this issue. 

The insurer’s summary judgment motion on lack of medical necessity should have been granted.  The insurer satisfied its initial burden of establishing a prima facie case by setting forth sufficient evidence that all bill at issue were timely denied based upon lack of medical necessity.  Further, the insurer submitted evidence that the independent medical report (“IME”) established a prima facie showing of lack of medical necessity.  The burden then shifted to plaintiff to create an issue of fact regarding medical necessity.

The plaintiff on appeal urged the Court that it had established its prima facie case of medical necessity by proof that a claim was submitted to the insurer and an accompanying attorney affidavit.  This created an issue of fact precluding summary judgment.

The Court rejected plaintiff’s argument and held that proof of a submitted claim and an accompanying attorney affidavit are not sufficient to refute the conclusions based upon the facts in the insurer’s IME report.  Thus, the plaintiff failed to raise a triable issue of fact on medical necessity and the insurer’s summary judgment motion should have been granted.

Here is the Angle:   This is truly a major decision for those who practice No-Fault in not only Buffalo City Court but in Erie County as well as in other jurisdictions within the Fourth Department, where we have not seen case law yet on this issue.  The decision does not indicate what is a sufficient showing by plaintiff to rebut the conclusions set forth in the IME report.  However, we do know what is not sufficient to rebut the insurer’s prima facie case – evidence of submission of the claim to the insurer and an attorney affidavit in opposition to the motion.

We note that this decision can be appealed and we will keep you apprised of the developments.
ARBITRATION
3/14/11           Applicant v. Travelers Home and Marine Ins. Co.
Arbitrator Mary Anne Theiss, Onodaga County
Insurer Properly Invoked Intoxication Exclusion

On September 26, 2009, the Applicant, eligible injured person, was involved in a one car accident when his car left the road, went into the ditch, and struck a pole.  The responding New York State Trooper was the first on the scene and was focused on saving the Applicant’s life.  He placed a neck and head brace on the Applicant and contacted Mercy Flight.  The Trooper testified that he could smell alcohol in the vehicle.

After the Applicant was transported to the hospital the Trooper drove to the hospital and continued his investigation.  He performed a Breathalyzer test and while he could not recall the actual results knew that it provided a result that lead to the charge of DWI.  The hospital did perform a blood alcohol test which the Trooper testified was one and one half times above the legal limit.  Further, the Trooper testified that the alcohol was a contributing factor to the accident.

The Applicant testified that he was up the entire night with a friend constructing a drag car.  He consumed from 7:00pm to 2:00am six, 12 oz. beers.  The Applicant’s friend also testified and verified the Applicant’s story.

The insurer had a pathologist, Dr. Rakesh Abbi, review records and opined that the Applicant was legally intoxicated.

Based upon all of the evidence and the testimony presented the assigned arbitrator determined that the insurer properly denied the claim based upon the intoxication exclusion.

3/11/11           Applicant v. New York Cent. Mut. Fire Ins. Co.
Arbitrator Mary Anne Theiss, Onondaga County
Insurer Properly Denied Claim Based Upon Lack Of Accident And Exclusion For Intentional Act

On July 31, 2009, the Applicant was a passenger in a vehicle owned by her father-in-law and operated by her husband.  She testified that she was arguing with her husband after leaving K-mart and she fell out of the car resulting in injury.

Applicant’s husband testified that a few minutes after leaving K-mart the car door on his wife’s side of the vehicle opened while he was traveling 30 miles per hour.  He testified that the door opened after he made a left hand turn and that his wife fell out of the vehicle.

A paramedic testified that on the day of the accident he was flagged down by a motorist.  He stopped and saw the Applicant lying on Route 8 wherein she stated she could not breathe.  The paramedic questioned the man with the Applicant as to what occurred.  The man responded that his wife jumped out of the vehicle at 50 miles per hour.  The man further stated that the Applicant was his wife and they were arguing.  The man stated that he tried to grab his wife but she jumped out of the car. 

The medical records submitted also contained approximately 25 incidents where it was documented that the Applicant and/or her husband advised the hospital staff she jumped out of the vehicle.

Accordingly, the insurer’s denial was justified.

3/10/11           Buffalo Anesthesia Assoc. PC v. Granite State Ins. Co.
Arbitrator Thomas J. McCorry, Erie County
Reimbursement For Manipulation Under Anesthesia Properly Denied

On March 9, 2009, the Applicant’s assignor was involved in an accident and came under the care of John Ward, DC for chiropractic treatment.  By December 9, 2009, the Applicant assignor underwent three consecutive days of chiropractic manipulation under anesthesia.

The insurer denied the bill based upon an August 17, 2009, independent chiropractic examination conducted by Keith Hosmer, DC.  Mr. Hosmer opined that the Applicant’s assignor had a highly subjectively magnified evaluation and that the objective diagnostic tests revealed no level of pathology that would explain the subjective complaints.  Mr. Hosmer further recounted seeing the Applicant’s assignor enter her vehicle without signs of pain or hesitation.  The recommendation was discontinuance of chiropractic care.  The assigned arbitrator determined that the denial was proper based upon the IME report.

3/9/11             Richard Ferguson MD v. Geico Ins. Co.
Arbitrator Thomas J. McCorry, Erie County
IME Physician’s Alleged Misread Of Medical Record Leads To Finding Of Medically Necessary Diagnostic Tests

The Applicant sought reimbursement for lower extremity EMG studies performed on the assignor allegedly related to injuries from an October 9, 2009, accident.  The Applicant’s assignor had been involved in an April 2007, accident wherein she was diagnosed with an L5 pars defect.

Since the October 2009, accident, Applicant’s assignor complained of progressive lower back pain which was reportedly worse than ever experienced.  Due to shooting pain down the legs and into the knees a dynamic lumbar x-ray and lower EMG was conducted. 

The insurer denied the diagnostic testing based upon the peer review of Dr. Warren Cohen.  Dr. Cohen opined that the eligible injured person had a normal neurological examination and the clinical assessment should have been readily recognized as mild radiculopathy of a traumatic origin which is expected to improve over a few weeks.  Dr. Cohen further pointed out that there was no examination of the eligible injured person on the date of the testing.  Dr. Cohen further opined that because Applicant did not perform a neurological evaluation he could not have known that the eligible injury person needed diagnostic testing.  Thus, the testing was not medically necessary.

The Applicant submitted which was characterized as a rebuttal letter making is clear that he did perform a physical examination of his patient.  Thus, Dr. Cohen’s analysis was substantially flawed on lack of medical necessity.

The assigned arbitrator noted the Applicant’s impressive credentials and even though he found gaps in the rationale for the testing the Applicant did perform a neurological examination of his patient.  Thus, the testing was medically necessary.

3/7/11             Buffalo Neurosurgery Group v. Preferred Mut. Ins. Co.
Arbitrator Veronica K. O’Connor, Erie County
Failure To Elaborate On Lack Of Necessity Of Surgery Fatal But Apportionment Opinion Will Be Applied

The Applicant’s assignor was involved in a September 26, 2009, motor vehicle accident and came under the care of neurosurgeon, Dr. P. Jeffrey Lewis.  Dr. Lewis performed, in April 13, 2010, a lumbar surgery and sought reimbursement for same which the insurer denied.

The insurer denied the surgery based upon the independent medical examination conducted by Dr. Patrick Hughes.  Dr. Hughes opined that the eligible injured person had a pre-existing back injury that was exacerbated by this accident.  He opined that only 10% of the eligible injured person’s complaints were attributed to this accident.  Further, Dr. Hughes opined that lumbar spine surgery was not necessary.  Dr. Hughes stated that Dr. Lewis’ rationale for surgery was pseudoarthrosis which was not substantiated by the imaging studies. 

The assigned arbitrator determined that Dr. Hughes’ report regarding necessity for surgery was not persuasive as it was too conclusory.  Thus, the Applicant was entitled to reimbursement of the surgery.  However, the assigned arbitrator held that Dr. Hughes apportionment was reasonable and unrefutted.  Therefore, reimbursement was only at 10%.

LITIGATION

3/3/11 Quality Health Products a/a/o Darek Rudnik C v. Country Wide Ins. Co.
Appellate Term, Second Department
Plaintiff’s Failure To Establish Claim Not Denied Leads To Denial Of Summary Judgment Motion

While plaintiff established that the insurer did not pay the claim submitted it did not establish that the insurer did not timely deny the claim submitted.  The attachment of a portion of the insurer’s denial of claim did not establish that the insurer failed to deny the claim within 30 days.  Also, the attachment of an incomplete denial without the basis for denial did not establish, as claimed, that the denial was conclusory, vague, or lack merit as a matter of law.  Thus, plaintiff’s motion for summary judgment was properly denied.

3/3/11             Exoto, Inc. a/a/o Wilson Martinez v. Progressive Ins. Co.
Appellate Term, Second Department
Addition Verification Request Was Clear And Still Outstanding Therefore Action Premature

The insurer’s summary judgment motion was properly granted based upon a premature action due the plaintiff’s failure to provide outstanding verification.  The plaintiff claimed it provided the requested NF-3.  Yet, plaintiff did not respond to the insurer’s follow up request seeking the same verification as the plaintiff claimed that the insurer did not clearly state why the prior NF-3 was insufficient.  The insurer advised the plaintiff that another NF-3 was required because “ever box must be fully completed, blank boxes will not be accepted.”  The court held that this did clearly advise the plaintiff as to what was sought in verification. Thus, the action was premature.

3/2/11             Tri-Mount Acupuncture, PC a/a/o Jerry Savage v. New York Cent. Mut. Fire Ins. Co.
Appellate Term, Second Department
Insurer Demonstrated Failure To Appear For IME

The insurer’s cross-motion for summary judgment should have been granted as the evidence submitted established that the assignor failed to appear for scheduled IMEs.  The insurer presented a sufficient affidavit establishing the IME scheduling company’s letter scheduling the IME were mailed in accordance with its practices.  Also, the insurer submitted a sufficient affidavit from its adjuster establishing that the denials based upon failure to appear for a scheduled IME were timely issued.  Further, the insurer submitted sufficient physician affirmations scheduled to conduct the IME that the assignor

3/2/11             Gateway Med., PC a/a/o Shauntee Ballard v. Progressive Ins. Co.
Appellate Term, Second Department
Plaintiff’s Failure To Obtain Acknowledge of Service From Insurer Was Defective Service

The insurer’s motion to dismiss the complaint for lack of personal jurisdiction should have been granted.  The plaintiff served the summons and complaint pursuant to CPLR §312-a but did not complete service by having insurer sign and return an acknowledgement of service.  The court held that if the acknowledge of service is not returned to the sender then the sender must effect personal service in another manner.  In this case, plaintiff did not effect service in another manner and the service upon the insurer was defective.


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


03/10/11         Toro v. Plaza Construction Corp.
Appellate Division, First Department
Driver of Garbage Truck’s Labor Law 241(6) Dismissed Where He Was Not Engaged in a Protected Activity at the Time of the Injury
Plaintiff was employed by Rite-Way International Removal, Inc.  While in the course of his employment with Rite-Way, plaintiff was struck in the face and eye with debris that was being compacted by the garbage truck plaintiff was operating.  At the time of the injury, plaintiff was picking up and removing debris that had been collected due to an ongoing demolition project on-site.  Although Rite-Way’s contract with the general contractor required certain demolition, the Court noted that plaintiff was not performing demolition tasks at the time of the injury.  In fact, all demolition activities were concluded approximately three weeks earlier.

On balance, the First Department held that because plaintiff was performing an activity that was not a protected activity, and that said actions were not undertaken with contemporaneous activities that are protected under the Labor Law (namely, demolition), Labor Law 241(6) did not apply.  Accordingly, plaintiff’s claim was dismissed as a matter of law.

03/08/11         Rodriguez v. Gany
Appellate Division, Second Department
Single Family Home Exception Not Helpful Where there was a Question of Fact as to the Homeowner’s Direction and Control of the Work

Defendant Gany endeavored to undertake a substantial renovation of his single family home.  This included hiring a general contractor for the project.  However, Mr. Gany, himself, hired the roofing and HVAC subcontractors, respectively, because of his preexisting contacts within those industries.  Plaintiff was employed as a laborer for the HVAC subcontractor, and was injured when he fell from a ladder while in the course of moving duct work to a second floor landing.  As a result of the fall, plaintiff commenced this action under Labor Law 240(1). 

Upon receipt, defendant Gany moved for summary judgment on the single family home exception to Labor Law 240(1).  Mr. Gany’s motion was denied, however, where discovery revealed that Mr. Gany had previously directed HVAC workers to move duct work to different locations within the home.  As such, the Second Department held that at a question of fact existed relative to whether Mr. Gany directed or controlled the manner in which plaintiff was performing his work.

03/10/11         Mendoza v Hightpoint Assocs., IX, LLC
Appellate Division, First Department
A Preclusion Order for Discovery Abuses Does Not Preclude a Party From Moving for Summary Judgment
This is another Labor Law issue, but it is not the reason we bring it to your attention.  Plaintiff moved for an order of preclusion under CPLR 3126 after defendant refused to produce a certain witness for a deposition.  The preclusion order was drafted to provide that defendant would not be able to introduce evidence at trial with respect to liability.  Notably, prior to the preclusion order the defendant had conducted paper discovery and conducted the deposition of plaintiff. 

Armed with plaintiff’s testimony only, defendant moved for summary judgment (which was ultimately denied on other grounds) on the basis that plaintiff’s testimony failed to establish a prima facie case of Labor Law 240(1).  In opposition, plaintiff argued that the preclusion order barred defendant mounting any argument on liability. 

In finding for the defendant, the First Department noted that defendant was only precluded from offering its own evidence on liability.  The preclusion order did not prohibit the defendant from using the deposition testimony of the plaintiff in establishing that plaintiff could not meet its burden under the Labor Law.  In so holding, the court noted that whatever disadvantage the plaintiff may have sustained due to the defendant’s refusal to submit to a deposition was remedied by simply precluding all affirmative evidence from being submitted to the Court for review.

The Court also noted that a preclusion order was not the same sanction as the striking of the defendant’s Answer.  If the defendant were prohibited from contesting liability, the striking of defendant’s pleading would have been the appropriate sanction.

In dissent, Justice Acosta (joined by Justice Tom in a separated dissent) offered a well-reasoned critique of the majority’s decision.  Justice Acosta noted that permitting the defendant to contest liability “undermined” the point of the discovery sanction in the first place.  Under his view, evidence submitted on behalf of a summary judgment (from any source) is, by its nature, affirmative. 

In addition, Justice Acosta noted that the burden on summary judgment requires that the movant (here the defendant) must affirmatively prove that it is entitled to dispositive relief.  Armed only with an attorney affirmation and a notice of motion, Justice Acosta wonders how one could ever meet their burden.  Absent any evidence in evidentiary form, it would appear that the Judge’s point is worth noting. 

In any event, with two dissents lodged in favor of the plaintiff’s position, we would not be surprised to see this makes its way to the Court of Appeals.  If so, we’ll be there to keep you posted. 


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


03/10/11  Secor Holdings Inc. v. Commonwealth Insurance Co.
United States Court of Appeals for the Fifth Circuit
Named Windstorm or Multi-Peril Occurrence? – Louisiana
Commonwealth Insurance issued an all-risk policy to Seacor Holdings, Inc. [“Seacor”].  The policy includes a provision denoting various deductibles contingent on the source of the damage. Each occurrence resulting in a claim for loss shall be adjusted separately and liability shall be limited to that amount by which the loss exceeds the deductible amounts up to the applicable Limit of Liability.  Relevant to the facts of this case there are three deductible clauses which are significant: (1) in respect of loss caused directly by the peril of Windstorm, as defined  $25,000, except;  (2) in respect of loss caused directly by the peril of a “Named Windstorm”, as defined, 3% of the total insurable values . . . subject to a minimum of $50,000 per occurrence; (3) in respect of loss caused directly by the peril of Flood, as defined: $25,000; except Flood Zones A and V, excess maximum National Flood Insurance Program (NFIP) limits available.

Seacor and Commonwealth disagree as to whether damages from Hurricanes Katrina and Rita should be covered using only the Named Windstorm deductible or using both the Named Windstorm and Flood deductible.  The parties further dispute the application of the policy’s limit of liability provision, which reads:  “The Company’s liability for the cumulative total of adjusted net claims resulting from any one loss, casualty, disaster or occurrence (including all costs, fees, charges and expenses) shall not exceed $10,000,000.”  Further the policy provides, “without increasing the policy limit, it is agreed that:  (a) loss caused by the peril of Flood, as defined, is subject to an Annual Aggregate Limit of Five Million Dollars ($5,000,000);.”

Seacor took the position that its losses resulted from a Named Windstorm.  Commonwealth on the other hand, argued Hurricane Katrina was a “multi-peril occurrence” that required the use of deductibles and liability limits for both Flood and Named Windstorm.

The policy defined Named Windstorm as “any Windstorm . . . or any atmospheric disturbance which have been declared to be a tropical storm and/or hurricane by the National Weather Service or the National Hurricane Center.”  With respect to a Windstorm the policy stated that a windstorm shall constitute a single claim hereunder provided, if more than one windstorm shall occur within any period of seventy-two (72) hours during the term of the Policy, such windstorm shall be deemed a single windstorm.  Finally, Flood was defined in the policy to mean waves, tide or tidal water, inundation, rainfall and/or resultant run off, and the rising (including overflowing or breakage of boundaries) of lakes, ponds, reservoirs, rivers, harbors, streams, or similar bodies of water whether wind-driven or not.  There was no separate provision in the policy denoting whether multiple deductibles could apply.

The district court concluded that only the Named Windstorm deductible applied; also finding that the Flood liability limit did not apply because the Named Windstorm’s percentage-based deductible structure already included the possibility of greater damages – and a correspondingly higher deductible – when compared to the Flood’s flat-rate deductible.

In deciding whether the absence of a specific provision allowing multiple deductibles the policy requires Seacor to pay both the Flood and Named Windstorm deductibles or whether a single Named Windstorm deductible encompasses Katrina’s wind and water damage the Court turned to the definition of Named Windstorm and determined that the policy’s Named Windstorm definition does not rely on the Windstorm definition alone.  Instead, a Named Windstorm also includes “any atmospheric disturbance” that the National Weather Service declares to be a hurricane or tropical storm.  Since both hurricanes Rita and Katrina were declared hurricanes by the National Weather Service the court determined that these events and the damage they caused fell within the Named Windstorm definition and required use of the Named Windstorm deductible.

The Court did not find Commonwealth’s argument that water damages could not be covered under the Named Windstorm deductible because the definition of Named Windstorm does not include flooding persuasive. The court held that because the policy does not define “loss caused directly by”, the court would rely on Louisiana law which equates “direct loss” to “proximate or efficient cause.” The Court referred to decisions of the Louisiana Supreme Court has held that “it is sufficient, in order to recover upon a windstorm insurance policy not otherwise limited or defined, that the wind was the proximate or efficient cause of the loss or damage, notwithstanding other factors contributing thereto.  The state appellate courts have found that policies may cover damage from affiliated heavy rains, if the wind was the proximate cause of the damages.  Here, the Court concluded that it follows that Katrina’s winds were the proximate cause of Seacor’s water-related damages.

Commonwealth also argued that Katrina included multiple perils so multiple deductibles should apply.  The Court held that this argument was contradicted by the policy. Under the policy “each occurrence resulting in a claim for loss shall be adjusted separately.”  An occurrence is defined as “any one loss, disaster or casualty or series of losses, disaster or casualties arising out of one event.” The Court concluded that each series of losses, even those stemming from different perils, arising from one event is adjusted separately – Seacor may have experienced different casualties from Katrina’s two perils, wind and rain, but under the policy, those losses arose out of one event and warrant only one deductible.

Commonwealth also argued that the Flood Limit of Liability should apply. The Court disagreed stating that since it had concluded under the deductible provision that all of Seacor’s damages were proximately caused by the Named Windstorm, those damages could not trigger the Flood liability limit because such losses were not caused by the peril of flood.

03/19/11  Miles v. Great Northern Insurance Company
United States Court of Appeals for the First Circuit
Can Husband’s Failure to Cooperate be Imputed to Wife? – Massachusetts
This suit arises out of a fire which occurred at the home of James and Theresa Miles on October 17, 2004.  The subsequent police investigation indicated that the fire had been intentionally set because accelerants were found in the house and there was no sign of forced entry. James Miles was named as a “person of interest” in the investigation.

The Mileses reported the fire to Great Northern the next day and the insurer initiated an investigation.  From the start, the Mileses were uncooperative. Both James and Theresa refused to answer Great Northern’s interrogatories about the loss and their financial affairs or to otherwise cooperate during the examinations under oath.

According to the terms of the Great Northern policy, the Mileses were obligated to submit to an examination under oath and to deliver to Great Northern within sixty (60) days of request, proof of loss, along with any supporting documentation. The policy also included a “concealment or fraud” clause, which stated, “this policy is void if you or any covered person has intentionally concealed or misrepresented any material fact relating to this policy before or after a loss.”  The policy also contained a clause which stated that “Coverage applies separately to each covered person.”  Although Great Northern had advanced living expense to the Mileses during the investigation, it ultimately decided to deny coverage under the policy because of the Mileses failure to cooperate.

The Mileses filed suit against Great Northern in the state court for breach of contract and unfair insurance practices.  The action was removed to federal court and Great Northern filed counterclaims for breach of contract and unjust enrichment. The district court granted summary judgment in favor of Great Northern on the unfair insurance practices claims but denied summary judgment on the breach of contract claims.  The district court also considered whether James Miles’ conduct during the claims adjustment process could be imputed to his wife.  The court ruled that “the express language of the policy unambiguously bars coverage for an innocent co-insured spouse through the inclusion of the term “any covered person””.

On appeal Theresa Miles argued that the district court erred by concluding that James Miles’ conduct could be imputed to her under Massachusetts law.

In analyzing Massachusetts law the Court noted that Massachusetts courts have held that “a willful, unexcused refusal to submit to an examination under oath . . . constitutes a material breach of the insured contract discharging the insurer’s liability under the contract.”  Lorenzo-Martinez v. Safety Ins. Co., 790 N.E.2d 692 (Mass. App. Ct. 2003). In analyzing the district court’s findings the Court found it clear that Theresa Miles independently refused to cooperate with Great Northern.  Theresa Miles argued; however, that because there was no finding by the district court that her conduct prejudiced Great Northern in its investigation, she should not be barred from recovery.  The Court found two problems with this argument.  First, it was the Court’s opinion that Theresa Miles’ interpretation of the district court’s findings was not a fair one and that her complicity in the couple’s pattern of non-cooperation was an integral part of the activity that thwarted Great Northern’s investigation.  Second, although the general rule is that an insurer may not disclaim coverage by virtue of an insured’s breach of its duty to cooperate absent a showing of prejudice, the Massachusetts courts recognize a “limited exception to the prejudice requirement in those cases where there is a willful and unexcused refusal of the insured to comply with an insurer’s timely request for an examination under oath.”  Boffoli v. Premier Ins. Co., 880 N.E.2d 826 (Mass. App. Ct. 2008).

The Massachusetts standard for determining whether an insured’s failure to comply with an examination under oath was willful and unexcused is whether the insured “had an excuse that relieved her from submitting to an examination under oath.  Lorenzo-Martinez, supra.  The Court determined that in refusing to answer questions and provide the requested documentation to Great Northern, Theresa Miles failed to comply with the insurer’s reasonable request for an examination under oath and most certainly exhibited the obstructionism under Massachusetts law that constitutes a willful and unexcused failure to comply with her obligations.  Further, that given the facts on the record the court concluded that Theresa Miles’ own conduct constituted a material breach of the insurance contract as a matter of law.

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

03/14/11         Rodriguez v. Allstate Ins. Co.
Civil Court, Queens County
Question of Fact as to Whether Plaintiff Had an Insurable Interest in Vehicle
Mr. Jiminez alleged that his insurance broker told him that he would save money if he could insure his vehicle under someone with a better driving history.  Accordingly, a friend took out an auto policy issued by defendant under his named on Mr. Jiminez’s vehicle.   The vehicle owned by Mr. Jiminez was eventually stolen, and he placed a claim with defendant.  Defendant disclaimed coverage.     

In this motion for summary judgment, defendant argued that Mr. Jiminez had no contractual relationship with it to bring a lawsuit and that his friend had no insurable interest.  The court agreed that there was an absence of privity between defendant and Mr. Jiminez.  With regard to the friend, the court found a question of fact based on defendant’s submission of the friend’s unsworn deposition testimony.  According to the court, the unsworn testimony did not constitute admissible evidence.  Although finding a question of fact, the court did note that case law prohibiting an insurer’s retroactive cancellation of a policy was designed to protect innocent third-parties.  Herein, according to the court, though defendant failed to meet its summary judgment burden, if it was determined at trial that the friend was a participant to misrepresentations made to procure the policy in question, denying his right to recover would not impinge in any way upon the protection the policy affords to innocent victims or subvert the statutory prescription against retroactive cancellation. 

03/14/11         Dr Pension Services v. North Am. Professional Liab. Ins. Agency
Supreme Court, Albany County
Court Dismisses Claims Against Insurance Broker Finding No Specific Misrepresentation
Plaintiff commenced an action against its insurance broker alleging negligent and wrongful procurement of insurance.   While insurance agents have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so, an insured is conclusively presumed to know the contents of an insurance policy concededly received, even if the insured did not actually read or review them.  Courts have recognized exceptions only in limited circumstances, such as where an agent failed to correct a clear misrepresentation created by the binder or policy, or where he made an affirmative misrepresentation regarding coverage in response to questioning by the client after reviewing the policy. 

The court granted summary judgment in favor of defendant.  It found that the evidence established that plaintiff received the policies in question and, thus, was presumed to know the contents.  Further, no triable issue of fact was raised to dispute this presumption.  Plaintiff’s allegations did not particularize a specific misrepresentation.  Any allegation that the policies negligently excluded “trading errors” from firm coverage could not be viewed as an affirmative misrepresentation that occurred in response to specific coverage limitation questions.  Rather, this claim was premised on what was not advised.  Further, plaintiff did not establish a failure to correct a misrepresentation.  The fact that the binder provided that plaintiff would be insured, “subject to the terms & conditions of the policy, for services they provide as…Record-Keepers” did not create a misimpression.  This determination was made irrespective of plaintiff’s assertion that the term “Record-Keeper” is a term of art within the retirement planning industry and would encompass mutual fund trades.  According to the court, such a misimpression was anything but clear. 

03/08/11                     American Transit Ins. Co. v. Orumen
Supreme Court, New York County
Court Denies Permanent Stay of Arbitration Where Petitioner Fails to Establish that the Other Vehicle Involved in the Accident was Uninsured
Respondent sought arbitration for injuries allegedly suffered in a February 8, 2010 motor vehicle accident, in which she was struck from behind by a truck that left the scene.  According to the police report, the truck that hit respondent listed a license plate number registered to Kenneth Lopez and insured by Truck Insurance Exchange; however, they took the position that the report was essentially inaccurate and their vehicle was not involved in the accident.     

In this Article 75 proceeding, petitioner sought to permanently stay arbitration of respondent’s uninsured motorist claim on the ground that respondent failed to submit proof that the other vehicle involved in the accident was uninsured.  In the alternative, it sought to join Mr. Lopez and Truck Insurance Exchange in the action, obtain a temporary stay of arbitration and seek a framed hearing on the issue of insurance coverage.

In response, the respondent opposed a permanent stay of arbitration but consented to a temporary stay to allow the joining of necessary parties and a framed hearing on coverage. 

The Court denied the request for a permanent stay holding that petitioner did not meet its burden of providing sufficient evidence that the “offending vehicle” was insured to justify a permanent stay of arbitration.  Accordingly, the court ordered a temporary stay and a framed hearing on Mr. Lopez’s involvement in the accident.    

03/01/11                     1515 Broadway Fee Owner LLC v. Seneca Ins. Co.
Supreme Court, New York County
Court Determines that Insurance Policy Contemplated Coverage for Use of Stairwells as an Activity that was Necessary or Incidental to Insured’s Use of the Premises
1515 Broadway Fee Owner LLC (“1515 Broadway”) leased its building’s ground floor to non-party SRJ Broadway.  SRJ Broadway opened a restaurant called “Juniors” in the space.  Thereafter, an employee of the restaurant was injured while descending a staircase from the building’s main floor to a lower floor.  The employee brought suit against 1515 Broadway and SL Green Realty Corp., the building’s management company (“SLG”). 

In the lease agreement, between 1515 Broadway and SRJ Broadway, SRJ Broadway agreed to obtain a comprehensive policy of liability insurance naming 1515 Broadway and its designees as additional insureds.  SRJ Broadway complied with this provision by obtaining a policy with defendant.  The policy named 1515 Broadway as an additional insured.  It also contained an endorsement entitled “Additional Insured – Managers or Leases of Premises,” which provided that SLG was an additional insured “with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to [SRJ Broadway] and shown in the Schedule.”  The Schedule listed “1515 Broadway” as “all premises you own, rent or occupy,” and classified “restaurants” as the location at those premises to which the insurance applies. 

Upon being placed on notice of this claim and suit, defendant disclaimed coverage asserting that the employee was not injured in an area of the building that was part of the premises leased to SRJ Broadway.  For purposes of determining defendant’s defense obligation, the court disagreed.  It held that the policy clearly contemplated coverage for activities that were necessary or incidental to SRJ Broadway’s use of the premises.  Accordingly, defendant was required to defend 1515 Broadway and SLG in the employee’s lawsuit.  However, the court held that any determination with regard to indemnification was premature as there had been no adjudication of liability in the underlying lawsuit.  

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

First Party Property Claims Require Direct
Physical Loss to Insured Property

            A recent case arising in California provides information and analysis with respect to the measure of damages and meaning of accidental direct physical loss to insured property which may fall within coverage under an insurance policy’s first party coverage.  The name of the case is MRI Healthcare Center of Glendale, Inc. v. State Farm General Insurance Co., 187 Cal. App. 4th 766, 2010 Cal. App. LEXIS 1447 (Cal. Ct. App. August 4, 2010).

            MRI Healthcare Center (naturally) provides MRI scanning services.  State Farm issued MRI Healthcare a business insurance policy that provided coverage for business liability, business personal property and loss of income.  As a result of some storms, MRI Healthcare’s landlord had to repair the roof over the room housing the MRI machine.  In order to make repairs, the MRI machine had to be demagnetized or “ramped down”.  As these things go, the MRI machine subsequently failed to “ramp back up”. 

            MRI Healthcare alleged that the equipment failure constituted damage to the MRI machine and resulted in a loss of business income.  MRI Healthcare alleged that the storms were the proximate cause of its loss, and that the storms were covered events under the policy issued by State Farm.  MRI Healthcare sought to recover costs to repair the MRI machine, and its income loss while the machine was inoperable. 

            The Trial Court granted State Farm’s motion for summary judgment.  MRI Healthcare appealed but the Appellate Court agreed and affirmed the Trial Court decision.  MRI Healthcare’s claim was “ramped down” at both the trial court and appeal levels.

            The court went back to fundamental insurance principles and stated that an accidental direct physical loss to insured property is a fundamental precondition to first party coverage.  MRI Healthcare had to sustain either (or both) an accidental direct physical loss to its property or the MRI machine, or a loss of business income due to the necessary suspension of business caused by such an accidental direct physical loss to property.  Under the facts of the event, MRI Healthcare conceded that the MRI machine was damaged by the ramp down/ramp up procedure – there was no other “physical damage” to the machine.

            In an interesting twist, the policy did not define “direct physical loss” and such a failure or ambiguity at times can be construed against the insurance carrier.  The court however noted that property insurance is a type of insurance with historical development and context, and that coverage under first party property insurance is triggered by the threshold concept of injury to insured property.  The threshold, for example, is met when property is physically altered by perils such as fire or water.  Therefore, “direct physical loss” involves a change in insured property caused by accident or other event directly upon the property causing it to become unsatisfactory for use or requiring repairs.

            Legally, and within this definition, with respect to the MRI machine, there was no physical alteration.  The failure of the MRI machine to ramp up was due to the inherent nature of the machine itself rather than physical damage.  The machine was turned off and could not be turned back on.  Therefore, this loss was not within the policy definition and concept of “direct physical loss” to insured property.  This case also indicates that, even if a policy does not specifically define a term, the insurer can still win the linguistic battle by reference to common sense, legal definitions and historical precedent.

            On a couple of side notes, the court also stated that the concept of property insurance of course rests on fortuity and accidental occurrence.  However, the undisputed evidence here showed that the ramping down of the MRI machine was not “accidental” but was a deliberate act on the part of MRI Healthcare to prepare the machine and room for the roof repairs.  In short, property insurance is triggered by injury to insured property caused by accidental not deliberate events. 

            The court also rejected MRI Healthcare’s assertion that the storms were the proximate cause of the loss.  The efficient proximate cause must be the predominating cause.  Even if the storms may have set in motion a course of events requiring repair to the roof and hence to ramp down the MRI machine, it was the ramping down of the machine itself that was the “sole and predominating cause” of the event and MRI Healthcare’s loss.  Of some importance was the fact that it was deemed MRI Healthcare’s burden to prove and show applicability of the policy and coverage. 

            Therefore, the Trial Court’s decision granting summary judgment and finding no liability to State Farm under the policy was affirmed.  This case reminds and emphasizes some basic insurance pointers with respect to first party property insurance:

First, policies are intended to pay for direct physical loss to personal or residential property and here, while the property in the form of the MRI machine may have been “affected” by the ramp down/ramp up procedure, there was no actual direct physical loss or injury to the MRI machine. 

            As further noted by the court, insurance is intended to protect against accidental and fortuitous occurrences, and here the ramp down of the MRI machine was done on purpose to facilitate the roof repairs. 

            Third, with respect to causation, it was the ramp down/ramp up procedure which caused the problem with the machine and that was the direct and proximate cause of the problem not the weather storms that may have triggered the need for the roof repairs.  The diagnosis for MRI Healthcare, therefore, was that this event and business problem was simply not compensable under the State Farm insurance policy.        

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


03/09/11         Total Signs v. Barrios
Third District Court of Appeal, Florida
Workers Comp Immunity Revisited -- Successfully

Plaintiff/Appellee Gary Barrios brought the underlying action to recover for injuries he claimed to have sustained when he was shocked during the erection of a large sign after electricity entered the extended crane of the construction vehicle being used at the site and traveled down to the ground below where Barrios was working.  After a three-day trial the jury returned a verdict in favor of Barrios, ruling he was not an employee and awarded $482K in damages.

Defendant Total Signs/Appellant appealed the decision asserting the clear evidence was that Total Signs was entitled to workers compensation immunity and that workers compensation was Barrios exclusive remedy. A motion for summary judgment and a motion for a directed verdict on that issue were denied by the trial court. Barrios asserted at trial he was a “day laborer” and an independent contractor. The evidence he produced at trial was Social Security taxes were not withheld from his paycheck, that he was paid hourly and not given a salary, and that he was free to work for other employers if Total Signs did not have a job for him on any given day. While Total Signs had a workers’ compensation policy in full force and effect at the time of the accident, the policy did not specifically list Barrios as an employee because Barrios never provided sufficient documentation to prove he was a legal United States citizen.

Total Signs asserted it was entitled to workers’ compensation immunity regardless of whether Barrios was an employee or an independent contractor. Because while the workers’ compensation statute typically excludes independent contractors from the definition of a covered “employee,” it makes an exception by covering all independent contractors “working or performing services in the construction industry” § 440.02(15) (c) 3, Fla. Stat. (2006).  Plaintiff’s counsel did not dispute that Barrios was working in the “construction industry” or deny that independent contractors in the construction industry are considered covered “employees” under the statute.  Instead, Plaintiff’s counsel pointed to a statutory exception to exclusivity, located at section 440.11(1) (a), Fla. Stat. (2003), for situations where the employer “fails to secure a payment of compensation” and argued that this standard was met when Total Signs failed to list Barrios on his workers’ compensation policy or file a claim on Barrios’ behalf. Total Signs asserted that this exception applied only where the employer fails to obtain any workers’ compensation policy at all, and that Barrios would have been covered under Total Signs’ policy had he asserted a claim.

The trial court disagreed, and determined that Mr. Bonilla’s decision not to specifically add Barrios’ name to Total Signs’ workers’ compensation policy for lack of citizenship documentation meant that Total Signs “failed to secure payment of compensation” under the statute and thereby lost the benefit of workers’ compensation immunity. The appellate court reversed the judgment and remanded the matter back to the trial court to enter judgment in favor of Total Signs based on workers compensation being Barrios’ exclusive remedy.
Editor’s Note:  Special thanks to Mike McMyne, Sr. VP and Chief Claims officer at Burlington who crafted this summary.  Additional acknowledgments to Don Gryzbowski, in-house counsel at Burlington Insurance who managed the matter, and David Grossman of Vernis & Bowling and Mark Hicks and Erik Bartenhagen of Hicks, Porter, Ebenfeld and Stein, who submitted the briefs on behalf of Total Signs.

 

02/28/11         Sapp v. Canal Insurance Company
Georgia Supreme Court
Motor Carrier Act Applies to Policy not Issued as Motor Carrier Policy
Canal insured a dump truck owned by EDB Trucking through a basic automobile liability policy, which contained certain exclusions and exceptions, such as a radius-of-use limitation. When the dump truck struck Sapp, she filed suit against EDB in state court, and Canal in federal court. Canal filed a declaratory judgment action in state court, and won summary judgment in its favor holding the accident was not covered by the policy. The court of appeals affirmed, finding the policy was not a motor carrier policy subject to the Georgia Motor Carrier Act, because EDB had never obtained a motor carrier permit, and the policy did not contain the appropriate endorsement. The Supreme Court reversed, finding that EDB was a motor carrier by virtue of being a dump truck operator hauling material on the roads of Georgia. Accordingly, the protections of the Motor Carrier Act—including the provision allowing Sapp to maintain a direct action against Canal—applied to the policy, and the terms of the policy that were inconsistent with the Act were void.
Submitted by: Jennifer Johnsen, Paul Greene, Nick Farr, Gallivan, White & Boyd, PA
REPORTED DECISIONS
Gladstein & Isaac, et al v. Philadelphia Indemnity Insurance Co.


Babchik & Young, LLP, White Plains (James E. Musurca of
counsel), for appellant.
Harvey Gladstein & Partners, LLC, New York (Ronald P.
Berman of counsel), for respondents.
Order and judgment (one paper), Supreme Court, New York County (Doris Ling-Cohan, J.), entered December 3, 2009, which denied defendant's motion for summary judgment dismissing the complaint and granted plaintiffs' cross motion for summary judgment declaring that defendant had a duty to defend and indemnify plaintiff in an underlying action, unanimously affirmed, without costs.
The court properly determined that the allegations in the underlying complaint that plaintiffs' law firm negligently hired and supervised an attorney who purportedly made sexual advances to a client, fall within the type of errors and omissions coverage provided by defendant's professional liability insurance policy (see Watkins Glen Cent. School Dist. v National Union Fire Ins. Co. of Pittsburgh, Pa., 286 AD2d 48 [2001]).
While the allegations may not fall under the policy definition of "Personal Injury," the court properly determined that they fall within the policy's definition of "Wrongful Act."
Tower Insurance of New York v. Amsterdam Apartments, LLC


Maidman and Mittelman, LLP, New York (Stuart A. Jackson of
counsel), for appellants.
Mound Cotton Wollan & Greengrass, New York (Labe C.
Feldman of counsel), for respondent.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered December 18, 2009, which, in a declaratory judgment action, granted plaintiff Tower Insurance of New York's motion for summary judgment and declared that plaintiff had no duty to indemnify and defend appellants in an underlying personal injury action, unanimously affirmed, without costs.
Where an insurance policy mandates that notice of an occurrence be given to the insurer "as soon as practicable," the insured's failure to do so vitiates the insurance contract (see Great Canal Realty Co. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]; Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339 [2005]).
The insureds' building superintendent's knowledge of the accident and injuries is imputable to the appellant building owners (see Anglero v George Units, LLC, 61 AD3d 564, 565 [2009]). Appellants' reference to the subject building manager's statement in his affidavit that Ana Hernandez was not the building's superintendent is insufficient to raise a triable issue of fact, as it is directly contradicted by the manager's earlier statement at his deposition that Hernandez was, in fact, the superintendent (see Roimeshner v Colgate Scaffolding & Equip. Corp., 77 AD3d 425, 426 [2010]; Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320 [2000]).
Accordingly, Supreme Court correctly found that appellants had knowledge of the occurrence about 76 days before notifying the insurer. As such, the notice was untimely as a matter of law (see Juvenex Ltd. v Burlington Ins. Co., 63 AD3d 554 [2009] [two month delay untimely]; Young Israel Co-Op City v Guideone Mut. Ins. Co., 52 AD3d 245 [2008] [40 day delay untimely]; Pandora Indus. v St. Paul Surplus Lines Ins. Co., 188 AD2d 277 [1992] [31 day delay untimely]).
Failure to give timely notice may be excused if the insured has a good faith belief of non-liability, but only if such belief is reasonable (see Great Canal Realty Corp., 5 NY3d at 743-744). In the case at bar, even assuming the appellants' property manager believed that the injured party would not assert a claim against the building owner, such belief was not reasonable. First, notwithstanding the fact that the property manager may have understood, based on his conversation with the building's superintendent, that Marin's injury was not serious, he still had the duty to report the possibility of a claim as soon as practicable (see Republic N.Y. Corp. v American Home Assur. Co., 125 AD2d 247, 248 [1986]). Second, it is undisputed that the appellants did not undertake any investigation of the incident, or make inquiry regarding the property manager's alleged belief that the injury was slight. Thus, the appellants could not have formed a reasonable belief of non-liability (see Great Canal Realty Corp., 5 NY3d at 744; Tower Ins. Co. of N.Y. v Jaison John Realty Corp., 60 AD3d 418, 419 [2009]). Moreover, where, as here, the building superintendent observed Marin bleeding from the head and being removed from the accident scene by ambulance, it was not reasonable for the appellants to fail to notify plaintiff of the occurrence at that time (see Tower Ins. Co. of N.Y. v Lin Hsin Long Co., 50 AD3d 305, 307-08 [2008]; Anglero, 61 AD3d at 565).
Supreme Court also properly held that one of the appellants, FY 1661 Park LLC d/b/a Townhouse Management Company, which was not named as an insured in relation to the building at which the accident occurred, was not entitled to coverage in any event. A party not named as an insured or additional insured on the face of the policy is not entitled to coverage (see Sixty Sutton Corp. v Illinois Union Ins. Co., 34 AD3d 386, 388 [2006]; Moleon v Kreisler Borg Florman Gen. Constr., 304 AD2d 337, 339 [2003]). That such appellant, an affiliate of the other appellants, was allegedly insured in relation to a different property included in the policy, is irrelevant (see Mary Lou Pendill v Furry Paws, Inc., 29 AD3d 453, 454 [2006]).
In light of our determination, we do not reach the parties' remaining contentions concerning the policy's exclusion for "Designated Ongoing Operations."
New York City Housing Authority v. Tower Insurance Co.


Law Office of Max W. Gershweir, New York (Joshua L. Seltzer
of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York
(Patrick J. Lawless of counsel), for respondent.
Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered April 13, 2010, which granted plaintiff's motion for summary judgment declaring that defendant has a duty to defend and indemnify it in an underlying personal injury action and denied defendant's cross motion for summary judgment declaring that it has no such duty, unanimously reversed, on the law, without costs, plaintiff's motion denied, the cross motion granted, and it is declared that defendant has no duty to defend or indemnify plaintiff in the underlying action.
The record demonstrates that upon receiving an untimely notice of the claim from plaintiff, defendant issued a formal disclaimer that was timely under the circumstances. Defendant's delay in issuing the disclaimer was justified, as the timeliness of the disclaimer is measured from the time that the insurer first learns of the grounds for disclaimer (see A.J. McNulty & Co. v Lloyds of London, 306 AD2d 211, 212 [2003]). "An insurer is not required to disclaim on timeliness grounds before conducting a prompt, reasonable investigation into other possible grounds for disclaimer; in fact, a reasonable investigation is preferable to piecemeal disclaimers'" (DiGuglielmo v Travelers Prop. Cas., 6 AD3d 344, 346 [2004], lv denied 3 NY3d 608 [2004], quoting 2540 Assoc. v Assicurazioni Generali, 271 AD2d 282, 284 [2000]). Accordingly, before issuing its disclaimer, it was reasonable for defendant to investigate whether plaintiff had contemporaneous knowledge of the incident, and whether plaintiff was actually insured via a written contract with its contractors, which was not apparent from the face of the notice of claim or the letter transmitted by plaintiff.
Jun Suk Seo v. Walsh


Martyn, Toher & Martyn, Mineola, N.Y. (Lisa Mammone Rossi
of counsel), for appellant.
Sim & Park, LLP, New York, N.Y. (Sang J. Sim of counsel),
for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant Edward A. Walsh appeals from an order of the Supreme Court, Queens County (Nelson, J.), entered October 7, 2009, which granted the plaintiff's motion pursuant to CPLR 4404(a) to set aside a jury verdict in favor of him and granted a new trial on the issue of serious injury.
ORDERED that the order is affirmed, with costs.
Following a trial, a jury found that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The plaintiff moved, pursuant to CPLR 4404(a), to set aside the verdict as contrary to the weight of the evidence, and based on allegedly inflammatory and highly prejudicial remarks made by the defense counsel in summation. The defendant Edward A. Walsh (hereinafter the defendant) opposed both grounds for setting aside the verdict. The Supreme Court concluded that defense counsel's summation remarks improperly influenced the jury, granted the plaintiff's motion to set aside the verdict on the ground that the inflammatory and highly prejudicial remarks warranted a new trial on the issue of serious injury in the interest of justice, and granted a new trial on the issue of serious injury. Consequently, the Supreme Court did not address the plaintiff's contention that the jury verdict was contrary to the weight of the evidence.
Contrary to the plaintiff's contention and the conclusion of the Supreme Court, defense counsel's summation comments were not so inflammatory or prejudicial as to deprive the plaintiff of a fair trial (cf. McArdle v Hurley, 51 AD3d 741; Vassura v Taylor, 117 AD2d 798).
On appeal, however, the plaintiff urges us to consider, as an alternative ground for affirmance, his contention that the jury verdict on the issue of serious injury was contrary to the weight of the evidence, and that a new trial should be held on that issue (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539). Since that issue was argued before the Supreme Court, and has been briefed by the parties before us, we address the plaintiff's alternative contention that the jury verdict on the issue of serious injury was contrary to the weight of the evidence, and affirm the order on this alternative ground.
"To set aside a jury verdict as against the weight of the evidence, it must be concluded that the evidence so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence" (Scudera v Mahbubur, 39 AD3d 620, 620; see Lolik v Big V Supermarkets, 86 NY2d 744, 746; Nicastro v Park, 113 AD2d 129, 134).
At trial, the plaintiff's treating neurologist, Dr. Hal Gutstein, testified that, as a result of the subject car accident, the plaintiff sustained a cervical radiculopathy due to herniated disks at the C4-C5 and C5-C6 levels, which impinged upon the plaintiff's spinal cord. Dr. Gutstein opined that, as a result of the accident, the plaintiff sustained a flexion/extension injury to the cervical region of his spine of a magnitude sufficient to cause disk herniations at two levels. The plaintiff underwent a discectomy, a procedure in which his herniated disks were cut out and a biomechanical device was inserted into his spine to stabilize it. Furthermore, Dr. Gutstein examined the plaintiff approximately one year after the discectomy, and found that the plaintiff had significant limitations in the range of motion of the cervical region of his spine. Specifically, Dr. Gutstein concluded that the flexion of the cervical region of the plaintiff's spine was 45 degrees, with 75 degrees being the normal range of motion; his extension was 10 degrees, with 30 degrees being normal; and his rotation was 25 degrees, with 45 degrees being normal.
Moreover, Dr. Gutstein opined that the plaintiff would have chronic symptoms, which would never resolve, and that the restrictions in the movement of the plaintiff's neck were permanent. In addition, Dr. Ksushik Das, who performed the discectomy on the plaintiff, testified that the plaintiff's injuries were permanent.
The defendant presented the testimony of Dr. Sang Lee, a specialist in physical medicine and rehabilitation, who examined the plaintiff in May and December of 1999, in connection with a 1999 car accident in which the plaintiff was involved. Dr. Lee determined that the plaintiff's neck was stiff, with limited range of motion. In addition, Dr. Lee testified that the plaintiff had post-traumatic cervical sprain and strain, a disk herniation at L5-S1, disk protrusions at L4-L5, and S1 radiculopathy. Further, Dr. Lee stated that the plaintiff's prognosis was guarded and that the plaintiff had a permanent partial disability.
Dr. Renan Macias, a neurologist, examined the plaintiff in June and July of 1999. Dr. Macias found decreased range of motion of the cervical and lumbosacral regions of the plaintiff's spine, right shoulder, and arm. In addition, Dr. Macias noted a decreased sensation in the plaintiff's arm, which, according to Dr. Macias, indicated herniation or bulging of the cervical nerve root.
Dr. Leon Sultan, a board-certified orthopedic surgeon, also testified on behalf of the defendant. Dr. Sultan examined the plaintiff in October 2007 in connection with the subject car accident, which occurred in August 2006, and found that the subject car accident did not result in a significant limitation of the use of a body function or system, or a permanent consequential limitation of the use of a body organ or member. Dr. Sultan did not believe that the plaintiff had herniated disks; rather, according to Dr. Sultan, MRI films revealed the presence of mere bulges
.
Significantly, none of the defendant's witnesses rebutted the plaintiff's showing that he underwent a discectomy, or provided any testimony that the discectomy was unnecessary.
Under these circumstances, we conclude that the jury's verdict—that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d)—could not have been reached on any fair interpretation of the evidence (see Scudera v Mahbubur, 39 AD3d at 621; Nicastro v Park, 113 AD2d at 134).
Accordingly, the Supreme Court properly granted the plaintiff's motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of serious injury, but should have done so on the ground that the verdict was contrary to the weight of the evidence, and should have granted a new trial on that basis.
Reyes v. Diaz

Feinman & Grossbard, P.C., White Plains (Steven N. Feinman
of counsel), for appellants.
Budin, Reisman, Kupferberg & Bernstein, LLP, New York
(Adam S. Bernstein of counsel), for respondent.
Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered June 17, 2010, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants failed to make a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Defendants' orthopedic surgeon failed to indicate the objective tests used to determine the range of motion in plaintiff's hip. Defendant failed to offer any expert opinion addressed to plaintiff's claimed psychological injuries (see Offman v Singh, 27 AD3d 284 [2006]). In addition, the opinion of defendants' radiologist that plaintiff's herniation was degenerative was "too equivocal to satisfy defendant[s'] prima facie burden to show that such herniation was not caused by a traumatic event" (Glynn v Hopkins, 55 AD3d 498, 498 [2008]).
In view of the foregoing, we need not consider the sufficiency of plaintiff's opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Porter v. Bajana

Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for appellant-respondent.
Hoberman & Trepp, P.C., Bronx (Adam F. Raclaw of counsel),
for respondent-appellant.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about July 27, 2010, which granted defendant's motion for summary judgment on the threshold issue of serious injury as to plaintiff's claims of injury of a permanent nature and denied the motion as to her claim of injury of a non-permanent nature, unanimously modified, on the law, to grant the motion as to the claim of non-permanent serious injury, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.
The reports of defendant's expert neurologist and radiologist established prima facie that plaintiff's injuries were not permanent or significant because the injuries had resolved and plaintiff had full range of motion in her cervical and lumbar spine (see Insurance Law § 5102[d]; Thompson v Ramnarine, 40 AD3d 360 [2007]). Moreover, the radiologist affirmed that plaintiff suffered from a preexisting degenerative condition and that the motor vehicle accident did not proximately cause her injuries. In opposition, plaintiff's medical expert failed to address or rebut defendant's evidence that plaintiff suffered from a preexisting degenerative condition (see Pommells v Perez, 4 NY3d 566, 580 [2005]; Valentin v Pomilla, 59 AD3d 184, 184-185 [2009]).
Plaintiff also failed to raise an issue of fact as to her 90/180-day claim, because her subjective statements indicating the length of time she was unable to work and was substantially disabled from performing her customary and daily activities were not supported by objective medical evidence (see Becerril v Sol Cab Corp., 50 AD3d 261, 262 [2008]).
Jackson v. Delossantos-Diaz


The Sullivan Law Firm, New York (Timothy M. Sullivan of
counsel), for appellant.
Law Offices of Morton J. Sealove, New York (Morton J.
Sealove of counsel), for respondent.
Order, Supreme Court, New York County (George J. Silver, J.), entered July 6, 2010, which denied defendant's motion for summary judgment dismissing the complaint, unanimously modified, on the law, the motion granted as to the 90/180-day category of Insurance Law § 5102(d) and the fracture, and otherwise affirmed, without costs.
Defendant failed to meet his initial burden to show that no triable issue of fact exists as to whether plaintiff sustained a significant limitation within the meaning of Insurance Law
§ 5102(d). The report by defendant's orthopedic expert, based on a recent examination, found limitations in range of motion in plaintiff's left shoulder but failed to set forth objective findings as to whether the limitations were significant or caused by the subject accident (see Shaw v Looking Glass Assoc., LP, 8 AD3d 100, 103 [2004]).
However, defendant met his initial burden to show that no triable issue of fact exists as to whether the accident caused plaintiff's alleged fracture. Defendant's radiology expert affirmed that any bone abnormality was caused by a pre-existing degenerative condition (see Bray v Rosas, 29 AD3d 422, 424 [2006]). Plaintiff failed to meet her burden to present any evidence raising a triable issue of fact as to the cause of the fracture. Although she presented a report by the radiologist who conducted the MRI and who concluded that plaintiff had a fracture in her left shoulder, this report was silent as to the cause of the fracture (see id.).
Finally, defendant met his initial burden to show that plaintiff submitted no objective evidence establishing that she was unable to engage in any of her usual activities at any point during the 180 days immediately following the accident. Plaintiff submitted only self-serving testimony, which does not suffice to raise a triable issue of fact concerning whether she met the threshold requirement for the 90/180-day category (see Nelson v Distant, 308 AD3d 338, 339 [2003]).
MacMillan v. Cleveland

Calendar Date: October 22, 2010
Before: Mercure, J.P., Malone Jr., Kavanagh, Garry and Egan Jr., JJ.

Roemer, Wallens, Gold & Mineaux, Albany
(Matthew J. Kelly of counsel), for appellants.
Kaplan, Hanson, McCarthy, Adams, Finder &
Fishbein, Albany (Gerald D. D'Amelia Jr. of counsel), for respondent.
MEMORANDUM AND ORDER

Garry, J.
Appeal from an order of the Supreme Court (Devine, J.), entered November 6, 2009 in Schoharie County, which granted defendant's motion for summary judgment dismissing the complaint.
In October 2005, plaintiff Elizabeth MacMillan (hereinafter plaintiff) was operating a motor vehicle when it was struck by defendant's vehicle. Plaintiffs subsequently commenced this action, claiming serious injury to plaintiff's back and neck within the meaning of Insurance Law § 5102 (d). Following joinder of issue, defendant moved for summary judgment dismissing the complaint. Supreme Court granted the motion, prompting this appeal. Finding plaintiffs' evidence sufficient to present a factual dispute relative to the significant limitation of use and the 90/180-day categories, we modify the order accordingly.[FN1]
Defendant bore the initial burden to establish on a prima facie basis that plaintiff did not suffer a causally-related serious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002]; Wolff v Schweitzer, 56 AD3d 859, 860 [2008]). To that end, defendant proffered plaintiff's medical records, which reflect a long history of back pain, including prior injuries in February, April and July 2005. This evidence of a preexisting condition shifted the burden to plaintiffs to "'set forth competent medical evidence based upon objective medical findings and tests to support [the] claim of serious injury and to connect the condition to the accident'" (Tracy v Tracy, 69 AD3d 1218, 1219 [2010], quoting Blanchard v Wilcox, 283 AD2d 821, 822 [2001]; see Coston v McGray, 49 AD3d 934, 935 [2008]). Plaintiffs were thus required to provide objective medical proof and quantitative or qualitative evidence establishing plaintiff's claimed condition and distinguishing her preexisting conditions from the claimed injury (see Pommells v Perez, 4 NY3d 566, 571-572, 577-578 [2005]; Falkner v Hand, 61 AD3d 1153, 1154-1155 [2009]).
Plaintiff testified that, at the time of the subject collision, she was employed at an after-school program and volunteered as an emergency medical technician, despite her prior injuries and preexisting physical conditions. She was being treated for these preexisting conditions and injuries by her physician, Ze'ev Weitz. By affidavit, Weitz testified that in the course of his treatment rendered following the collision, he found plaintiff disabled from her work and customary activities for stated periods that ultimately exceeded four months, at which time he released her to return to light duty work. Weitz described specific limitations of use and motion in plaintiff's arm and averred that she "was restricted in all phases of motion in her neck and back." He further compared diagnostic MRI testing obtained before and after the subject collision and opined that this comparison revealed "a marked difference in deterioration and degree of injury of her lower back from L1 to L5." In sum, he concluded that the automobile accident was the cause of plaintiff's disabling condition and that she suffered a significant limitation of use and motion of her neck and lower back, as established by clinical examination and the objective proof of aggravation revealed by the MRI testing.
Notably, Weitz's opinion was based on his treatment and clinical observations made both before and after the subject collision. Nonetheless, his affidavit is insufficient, standing alone, to meet the applicable legal standards, as he failed to specify the percentage of the restrictions in motion or to set forth the underlying clinical tests supporting his stated observations (see Toure v Avis Rent A Car Sys., 98 NY2d at 350; Tuna v Babendererde, 32 AD3d 574, 577 [2006]). Plaintiffs made further submissions, however, which we find adequate to cure these deficiencies. A chiropractor who treated plaintiff for her preexisting condition prior to the collision and continuing thereafter stated by affidavit that plaintiff's symptoms "were substantially aggravated by the motor vehicle accident," and provided a recent assessment of plaintiff's cervical and lumbar limitations by specified degree, opining that the limitations were significant. Further, plaintiff's no-fault carrier had a medical evaluation performed by orthopedic surgeon Lawrence Schulman. Schulman performed a detailed analysis of plaintiff's prior history and opined that the subject collision "aggravated and contributed to her condition." An additional orthopedic evaluation was performed by Shashi Patel, upon request of the workers' compensation carrier relative to one of plaintiff's prior injuries. Among other stated findings, Patel noted that his examination revealed "moderate muscle spasm" in plaintiff's paravertebral musculature (see Weaver v Howard, 206 AD2d 793, 793 [1994])[FN2] . Patel opined that plaintiff's preexisting degenerative condition was aggravated by a prior work-related injury, and then re-aggravated by the subject collision. He apportioned 50% of her continuing "moderate to marked disability referable to the lumbar spine" to each of these two occurrences.
Schulman and Patel each prepared detailed reports setting forth the findings of their respective evaluations, and each attributed disability to the collision after specifically considering the effects of plaintiff's preexisting condition. Notably, these physicians were retained for this very purpose by their respective insurance carriers, as the carriers would not be responsible for payment without a finding of causal relationship following analysis of the various relevant factors affecting plaintiff's physical condition. Further, defendant did not present any medical expert opinion refuting the evaluators' conclusions, but established her prima facie case solely by introducing the records of plaintiff's prior injuries and conditions. While evidence of this nature is sufficient to meet a party's initial burden of proof (see Franchini v Palmieri, 1 NY3d 536, 537 [2003]; Tuna v Babendererde, 32 AD3d at 575), the opinions of Schulman and Patel regarding causation thus stand unrefuted by medical testimony in this record. Viewing this evidence in the light most favorable to plaintiffs (see Hildenbrand v Chin, 52 AD3d 1164, 1166 [2008]), we find the proof sufficient to meet their burden to demonstrate the existence of triable issues of fact as to the significant limitation of use category of serious injury.
As to the 90/180-day category, plaintiffs were required to submit objective evidence of a "medically determined injury or impairment of a non-permanent nature which prevent[ed] [plaintiff] from performing substantially all of the material acts which constitute [her] usual and customary daily activities" during at least 90 of the 180 days immediately after the accident (Insurance Law § 5102 [d]; see Nowak v Breen, 55 AD3d 1186, 1188 [2008]). Triable issues of fact as to this category are established by the previously-discussed medical evidence, as well as Weitz's affidavit testimony that plaintiff was not capable of performing her normal and customary activities for four months after the October 2005 accident, and plaintiff's affidavit describing her ongoing inability to drive and engage in her previous household activities (see Secore v Allen, 27 AD3d 825, 828 [2006]; Monk v Dupuis, 287 AD2d 187, 191-192 [2001]).
Kavanagh and Egan Jr., JJ., concur.

Mercure, J.P. (dissenting).
We respectfully dissent. The majority properly acknowledges that to satisfy the statutory serious injury threshold — under either the significant limitation of use or 90/180-day category — a plaintiff must submit objective medical evidence of injury (see e.g. Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). The majority fails to recognize, however, that "an expert's opinion unsupported by an objective basis [is] wholly speculative" and, thus, "frustrat[es] the legislative intent of the No-Fault Law to eliminate statutorily-insignificant injuries or frivolous claims" (id. at 351; see Pommells v Perez, 4 NY3d 566, 571-572 [2005]). The undated affidavit of plaintiff Elizabeth MacMillan's (hereinafter plaintiff) treating physician, Ze'ev Weitz, does not meet the required standard.
Weitz did not identify any diagnostic techniques that he used in making his determination regarding plaintiff's arm that were not dependent on her subjective complaints of pain (see Tuna v Babendererde, 32 AD3d 574, 577 [2006]; Burford v Fabrizio, 8 AD3d 784, 785 [2004]). Nor did Weitz's affidavit specify the nature of the soft-tissue injury — a herniated disc — that plaintiffs now claim to have been shown by objective evidence, i.e., a post-accident MRI upon which Weitz relied in diagnosing her with an injury. "Proof of a herniated disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not alone sufficient to establish a serious injury" (Pommells v Perez, 4 NY3d at 574 [emphasis added]). While we have held that "'an expert's designation of a numeric percentage of a plaintiff's loss of range of motion'" that is corroborated by an MRI showing a soft tissue injury may constitute objective medical evidence (Durham v New York E. Travel, 2 AD3d 1113, 1114-1115 [2003], quoting Toure v Avis Rent A Car Sys., 98 NY2d at 350), the expert must explain how the soft tissue injury shown on the MRI "relate[s] to [the] plaintiff's particular physical complaints" (June v Gonet, 298 AD2d 811, 812 [2002]; see Howard v Espinosa, 70 AD3d 1091, 1093-1094 [2010]; Burford v Fabrizio, 8 AD3d at 786).
Weitz's affidavit is patently deficient not only because he failed to specify percentages of limitation and underlying clinical tests or explain the degree to which the October 2005 accident aggravated plaintiff's numerous preexisting conditions, as the majority concludes. The additional critical defects in Weitz's affidavit are the failure to relate the MRI to plaintiff's physical complaints, or to specify any contemporaneous degree of limitation — quantitative or qualitative — related to her neck or back (see Howard v Espinosa, 70 AD3d at 1093-1094; Pianka v Pereira, 24 AD3d 1084, 1085-1086 [2005]; June v Gonet, 298 AD2d at 812-813). Contrary to the majority's view, the medical reports of two other physicians and the affidavit of plaintiff's chiropractor do not cure these deficiencies in Weitz's affidavit. Neither the physicians nor the chiropractor reviewed the results of the November 2005 MRI — the objective evidence upon which plaintiffs purport to rely. The physician's reports and chiropractor's affidavit cannot, therefore, relate the results of the MRI to plaintiff's symptoms and, for that reason alone, these additional submissions cannot be said to cure the deficiency in Weitz's affidavit (see Burford v Fabrizio, 8 AD3d at 786; June v Gonet, 298 AD2d at 812-813).[FN1]
In any event, the limitations in plaintiff's range of motion detailed by her chiropractor and the two physicians are not sufficiently contemporaneous with the accident. Rather, those limitations reflect plaintiff's condition nearly four years, two years, and a year and half after the accident, respectively, and following another motor vehicle accident affecting her neck and back. Finally, while one physician, Shashi Patel, indicated that he detected a back spasm, Supreme Court properly rejected this evidence as lacking in probative value. The majority's conclusion that this finding of a spasm constitutes objective medical evidence despite the absence of any indication of the manner in which the spasm was ascertained is contrary to Court of Appeals precedent. That Court has held that a spasm is not considered objective evidence of an injury absent further evidence that the spasm was "objectively ascertained," such as evidence of the test performed to induce the spasm (Toure v Avis Rent A Car Sys., 98 NY2d at 357).
In short, plaintiffs failed to raise a triable issue of fact regarding the existence of a causally related serious injury. Accordingly, we would hold that Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint.
Malone Jr., J., concurs.
ORDERED that the order is modified, on the law, with costs to plaintiffs, by reversing so much thereof as granted defendant's motion for summary judgment dismissing that part of the complaint as alleged that plaintiff Elizabeth MacMillan suffered a serious injury in the significant limitation of use and 90/180-day categories; motion denied to that extent; and, as so modified, affirmed.
Footnotes

Footnote 1: Plaintiffs' evidence did not reveal a total loss of use, as required to establish a claim under the permanent loss of use category (see Oberly v Bangs Ambulance, 96 NY2d 295, 297 [2001]; Tracy v Tracy, 69 AD3d 1218, 1219 [2010]), and the claim of permanent consequential loss of use was not presented in the complaint or bill of particulars (see Hall v Barth, 36 AD3d 1050, 1051 n [2007]).

Footnote 2: This finding was stated in the portion of the report describing the particulars of the clinical physical examination. In contrast to the dissent, we perceive no basis for a negative inference arising from the failure of this physician to present greater detail describing his precise clinical methodology; whether this finding was made upon palpation or visual observation, it was within the realm of his expertise, and does not require further development at the summary judgment stage (see Hall v Barth, 36 AD3d 1050, 1051 [2007]).

Footnote 1: Although one physician, Lawrence Schulman, mentioned the existence of the November 2005 MRI, he did not relate its results to plaintiff's particular physical complaints, as required, or even indicate that he reviewed the MRI results; rather, Schulman noted that the MRIs that he reviewed related to a subsequent September 2006 accident.

Brite v. Miller


Helen F. Dalton & Associates, P.C., Forest Hills, N.Y. (Natia
Shalolashvili of counsel), for appellant.
Mendolia & Stenz (Montfort, Healy, McGuire & Salley,
Garden City, N.Y. [Donald S.
Neumann, Jr.], of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Rosengarten, J.), dated March 1, 2010, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
The defendant moved 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). The defendant met her prima facie burden of demonstrating her entitlement to judgment as a matter of law by showing, through the affirmed reports of her medical experts, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The admissible evidence which the plaintiff presented in opposition to the defendant's motion did not raise a triable issue of fact (see CPLR 3212[b]; Grasso v Angerami, 79 NY2d 813, 814-815; Vilomar v Castillo, 73 AD3d 758, 759; Pagano v Kingsbury, 182 AD2d 268, 270). The plaintiff presented no competent, objective medical evidence of any limitations of motion associated with any of the plaintiff's pleaded injuries contemporaneous with the accident (see Srebnick v Quinn, 75 AD3d 637). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.
Foley v. Liloia


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Colin F. Morrissey of counsel), for appellants.
Mitchell J. Winn, Garden City, N.Y., for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Anatoli Tentechikov and Atkadiy Kaner appeal from an order of the Supreme Court, Kings County (Schack, J.), dated June 4, 2010, which 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 reversed, on the law, with costs, and the motion of the defendants Anatoli Tentechikov and Atkadiy Kaner for summary judgment dismissing the complaint insofar as asserted against them is granted.
The appellants 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, 351-352; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact. The only medical report submitted by the plaintiff that was in admissible form was from her orthopedic surgeon, Dr. Jerry A. Lubliner (see Grasso v Angerami, 79 NY2d 813, 814; Bernier v Torres, 79 AD3d 776, 777). However, that medical report was based upon Dr. Lubliner's examination of the plaintiff on April 28, 2010, which was more than four years after the occurrence of the subject accident. Thus, the plaintiff failed to submit any competent medical evidence that was contemporaneous with the subject accident showing initial range-of-motion limitations that were significant in nature (see Husbands v Levine, 79 AD3d 1098; Posa v Guerrero, 77 AD3d 898, 899; Srebnick v Quinn, 75 AD3d 637). Accordingly, the Supreme Court should have granted the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.
Germain v. Irizarry


DeSena & Sweeney, LLP, Hauppauge, N.Y. (Shawn P.
O'Shaughnessy and Christopher J. Lanigan of counsel), for appellant.
Pierre Pierre & Associates, LLP, New York, N.Y. (Eddy Pierre
Pierre of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Mayersohn, J.), dated September 30, 2009, which, after a jury verdict on the issue of liability finding the defendant 100% at fault in the happening of the accident, denied her renewed motion pursuant to CPLR 4401, made at the close of the plaintiff's case on the issue of damages, for judgment as a matter of law dismissing the complaint.
ORDERED that the order is affirmed, with costs.
This action arises from a two-car collision which occurred in Queens County on July 16, 2004. As a result of the accident, the plaintiff allegedly sustained disc bulges and/or herniations to the cervical and lumbar regions of her spine. Thereafter, the plaintiff commenced this action, alleging, inter alia, that the accident caused her to sustain serious personal injuries within the meaning of Insurance Law § 5102(d).
A bifurcated jury trial on the issue of liability was held, resulting in a verdict of 100% fault in favor of the plaintiff and against the defendant. Thereafter, the matter proceeded to a jury trial on the issue of damages, at which it was disclosed that the plaintiff had been involved in two prior accidents involving injuries to her spine: one in 1998, and one in 1999. In the 1998 accident, the plaintiff injured the lumbosacral region of her spine while lifting a patient at work. In the 1999 accident, the plaintiff injured both the cervical and lumbosacral regions of her spine when her car was struck in the rear by another motor vehicle.
Dr. Eric Roth, a board-certified physician in the area of physical medicine and rehabilitation, testified as the sole medical witness on the plaintiff's behalf. Dr. Roth reviewed the plaintiff's magnetic resonance imaging (hereinafter MRI) films relating to the current accident and testified extensively as to the plaintiff's treatment, including restricted ranges of motion. On cross-examination, Dr. Roth testified that the plaintiff did not inform him about either of her two prior accidents and that he never saw the MRI results obtained after the plaintiff's prior accidents. However, during his direct testimony, Dr. Roth was asked to assume that the plaintiff had been involved in a prior accident in May 1999 and sustained certain injuries, but had returned to work full time with no limitations. Dr. Roth was then asked whether, under those circumstances, that prior accident was the cause of the pain presently complained of by the plaintiff. Dr. Roth testified that, based upon the plaintiff's return to work with no pain, that prior accident was not the cause of the plaintiff's current pain. Dr. Roth was further asked to assume that certain MRI studies taken prior to the subject accident demonstrated bulges and herniations to the cervical region of the plaintiff's spine, and to state whether those conditions were the cause of the plaintiff's present pain. Dr. Roth opined that those prior conditions were not the cause of the plaintiff's present pain based upon the fact that the plaintiff alleged that she never had pain until the subject accident. Moreover, Dr. Roth opined, with a reasonable degree of medical certainty, that the injuries which the plaintiff sustained in the subject accident were permanent, since they had persisted for five years and had not responded to any of the treatment which she received.
At the conclusion of the plaintiff's case, the defendant moved pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint, contending that the plaintiff failed to meet her burden of establishing that she sustained a serious injury as a result of the subject accident. Counsel argued, inter alia, that Dr. Roth admitted that he was unaware of the plaintiff's prior two accidents, rendering his testimony speculative. The Supreme Court reserved decision on the defendant's motion.
During the defendant's case, a neurologist testified, based upon his examination of the plaintiff in May 2006, that the plaintiff exhibited no evidence of any neurological problem or disability.
After the Supreme Court disbanded the jury because it was unable to reach a verdict, the defendant renewed her motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint. Once again, the defendant contended that Dr. Roth's opinion as to the causal connection between the claimed injuries and the subject accident was speculative because Dr. Roth was unaware of the plaintiff's prior accidents. In the order appealed from, the Supreme Court denied the defendant's motion, and the defendant appeals. On appeal, the defendant, inter alia, reiterates her contention that Dr. Roth failed to adequately address the plaintiff's two prior accidents, thus rendering his opinion on proximate cause speculative. We affirm.
A party's motion pursuant to CPLR 4401 for judgment as a matter of law should be granted only when, accepting the opposing party's evidence as true, and according that evidence the benefit of every favorable inference that can reasonably be drawn therefrom, there is no rational process by which the fact finder could base a finding in favor of the nonmoving party (see Szczerbiak v Pilat, 90 NY2d 553, 556; Nestro v Harrison, 78 AD3d 1032, 1033; Dockery v Sprecher, 68 AD3d 1043, 1045; Wehr v Long Is. R.R. Co., 38 AD3d 880, 880-881).
When "contributory factors interrupt the chain of causation between [a plaintiff's] accident and claimed injury—such as . . . a preexisting condition—summary dismissal of the complaint may be appropriate" (Pommells v Perez, 4 NY3d 566, 572). Here, contrary to the defendant's contention, the Supreme Court properly denied her motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint. This is because, affording the plaintiff every favorable inference from the evidence submitted, there was a rational process by which the jury could have found that the plaintiff's injuries were caused by the subject accident rather than the prior accidents. To the extent that the defendant asserts that this Court has held that a plaintiff's expert in an action to recover damages for serious injuries within the meaning of Insurance Law § 5102(d) must always address all of the plaintiff's prior accidents and review all of a plaintiff's prior medical records relating to those accidents, that contention is without merit. The cases cited by the defendant are largely inapplicable because, in those cases, we determined that the moving defendants had met their prima facie burdens in establishing their entitlement to judgment as a matter of law pursuant to CPLR 3212 and, in opposition, the plaintiffs had failed to rebut the defendants' prima facie showings by raising a triable issue of fact. By contrast, here, the plaintiff's burden at trial was to establish that she sustained a serious injury within the meaning of Insurance Law § 5102(d).
The defendant's remaining contentions are without merit.
Keenum v. Atkins


Pamela Gabiger, Poughkeepsie, N.Y., for appellant.
Kaplan, Hanson, McCarthy, Adams, Finder & Fishbein, Albany,
N.Y. (Gerald D. D'Amelia, Jr., of
counsel), for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Sproat, J.), dated March 5, 2010, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
The plaintiff has been involved in numerous accidents causing injuries to, among other things, his back and neck. He was injured in a work-related accident in May 2007, a motor vehicle accident in October 2007, a motor vehicle accident in April 2008, and the instant motor vehicle accident on September 21, 2008, in which he was struck by the motor vehicle owned by the defendant Dolores Patterson and operated by the defendant Darren Atkins while he crossed a street as a pedestrian.
The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants relied on, among other things, the affirmed medical report of Dr. Naunihal Sachdev Singh, their examining neurologist. During his examination of the plaintiff on February 16, 2009, Dr. Singh noted significant limitations of ranges of motion in the cervical and lumbar regions of the plaintiff's spine, as well as in both of the plaintiff's shoulders. Dr. Singh concluded that the plaintiff suffered from pre-existing osteoarthritis of the spine. He opined that the plaintiff's limitations of movement of his neck were caused by the plaintiff's surgery prior to the subject accident, in which he had a bilateral cervical laminectomy by anterior approach with fusion and hardware placement. Dr. Singh further opined that "most" of the plaintiff's symptoms could be "explained by osteoarthritis of the spine complicated by the progressive nature of the disease and the [plaintiff's] accidents causing temporary soft tissue sprains and strains with full resolution each time." However, he did not address the plaintiff's allegations in his bill of particulars that the subject accident aggravated, reactivated, and exacerbated pre-existing injuries to, and degenerative conditions in, among other things, the cervical and lumbar regions of his spine. Indeed, Dr. Singh opined that the plaintiff's symptoms had been "complicated," in part, by his accidents. Thus, the findings of Dr. Singh failed to establish that the plaintiff did not sustain an aggravation and/or reactivation and/or exacerbation of his prior injuries as a result of the subject accident (see Rabinowitz v Kahl, 78 AD3d 678; Pfeiffer v New York Cent. Mut. Fire Ins. Co., 71 AD3d 971; Washington v Asdotel Enters., Inc., 66 AD3d 880; McKenzie v Redl, 47 AD3d 775, 776).
Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Rabinowitz v Kahl, 78 AD3d 678; Pfeiffer v New York Cent. Mut. Fire Ins. Co., 71 AD3d 971; Washington v Asdotel Enters., Inc., 66 AD3d 880; McKenzie v Redl, 47 AD3d 775, 776).
McLoud v. Reyes


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellant.
Lozner & Mastropietro (Pollack, Pollack, Isaac & De Cicco,
New York, N.Y. [Brian J. Isaac], of
counsel), for respondents.


DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated October 19, 2009, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff Supreme K. McLoud did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and denied his separate motion for summary judgment dismissing the complaint on the ground that he was not negligent in causing the subject accident.
ORDERED that the order is reversed, on the law, with costs, the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff Supreme K. McLoud did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is granted, and the defendant's separate motion for summary judgment dismissing the complaint on the ground that he was not negligent in causing the subject accident is denied as academic.
The defendant met his prima facie burden of showing that the plaintiff Supreme K. McLoud 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 failed to raise a triable issue of fact. The medical records submitted by the plaintiffs from Medical Care 4 You, P.C., were not in admissible form since they were uncertified (see Rush v Kwan Chiu, 79 AD3d 1004; Lozusko v Miller, 72 AD3d 908; Mejia v DeRose, 35 AD3d 407, 408). The certification of Dr. Jadwiga H. Pawlowski was insufficient to affirm the contents of the medical report of Dr. Robert F. Dickerson, which was annexed to it (see CPLR 2106; see also Buntin v Rene, 71 AD3d 938; Washington v Mendoza, 57 AD3d 972, 973; Matter of Bronstein-Becher v Becher, 25 AD3d 796, 797).
The affirmed medical reports of Dr. Dale Alexander and Dr. Lester Nadel submitted by the plaintiffs revealed that on September 17, 2007, and January 10, 2008, respectively, McLoud had full range of motion in his right knee.
The affirmed medical reports submitted by the plaintiffs of Dr. Benjamin Cortijo, one of McLoud's treating physicians, failed to raise a triable issue of fact because he failed to explain or reconcile the apparent inconsistencies in his own findings (see Vasquez v John Doe #1, 73 AD3d 1033; Carrillo v DiPaola, 56 AD3d 712; Felix v Wildred, 54 AD3d 891; O'Shea v Johnson, 49 AD3d 614; Magarin v Kropf, 24 AD3d 733), or those findings of McLoud's other treating physicians (see Resek v Morreale, 74 AD3d 1043). In any event, the approximate 12% limitation in range of motion noted by Dr. Cortijo on his July 13, 2009, examination of McLoud was insignificant within the meaning of the no-fault statute (see Licari v Elliot, 57 NY2d 230, 236; Trotter v Hart, 285 AD2d 772, 773; Decker v Stang, 243 AD2d 1033, 1037; Waldman v Dong Kook Chang, 175 AD2d 204; cf. Mazo v Wolofsky, 9 AD3d 452).
The affirmation of Dr. Steven Brownstein submitted by the plaintiffs with his annexed magnetic resonance imaging report concerning McLoud's right knee, also failed to raise a triable issue of fact. Those submissions merely revealed a tear of the posterior horn of both menisci in the right knee. The mere existence of torn menisci is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration (see Resek v Morreale, 74 AD3d 1043; Larson v Delgado, 71 AD3d 739, 740; Ciancio v Nolan, 65 AD3d 1273, 1274; Niles v Lam Pakie Ho, 61 AD3d 657, 659; Cornelius v Cintas Corp., 50 AD3d 1085, 1087). Such evidence was clearly lacking in this case.
The plaintiffs failed to submit any competent medical evidence that McLoud was unable to perform substantially all of his daily activities for not less than 90 of the first 180 days following the subject accident (see Sainte-Aime v Ho, 274 AD2d 569, 570).
Since the plaintiffs failed to raise a triable issue of fact on the threshold issue of serious injury, the Supreme Court should have denied, as academic, the defendant's separate motion for summary judgment dismissing the complaint on the ground that he was not negligent in causing the subject accident (see Zawaski v Salzano, 77 AD3d 823, 824).
Decided on March 10, 2011
Saxe, J.P., Friedman, Acosta, DeGrasse, Richter, JJ.

4485 101189/08
Toro v Plaza Construction Corp.


Mauro Goldberg & Lilling LLP, Great Neck (Matthew M.
Naparty of counsel), for appellants.
Davidson & Cohen, P.C., Rockville Centre (Robin Mary
Heaney of counsel), respondent.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered August 5, 2010, which, to the extent appealed from, denied defendants' and third-party defendant's motions for summary judgment dismissing the Labor Law § 241(6) cause of action to the extent said cause of action is based on a violation of Industrial Code 12 NYCRR 23-1.8(a), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint in its entirety.
Plaintiff, a truck driver employed by third-party defendant Rite-Way Internal Removal, Inc. (Rite Way), suffered injuries to his face and right eye when, while performing construction debris removal at a building under renovation, a piece of debris shattered as it was being compacted in the garbage truck and struck him in the face.
Dismissal of the Labor Law § 241(6) claim was warranted since defendants and Rite Way established that plaintiff was not a worker protected under the Labor Law. Liability under Labor Law § 241(6) is limited to accidents where the work performed involves "construction, excavation or demolition" (see Nagel v D & R Realty Corp., 99 NY2d 98 [2002]; Maes v 408 W. 39 LLC, 24 AD3d 298, 300-301 [2005], lv denied 7 NY3d 716 [2006]). Here, there is no evidence that plaintiff was performing such work as his activities did not include anything other than driving a garbage truck and picking up debris. He had never been inside the building under renovation, and his contact with the site was limited to pulling up to the loading dock. The debris pick-up was but one of a number of pick-ups plaintiff needed to perform that day.
While the contract between the general contractor defendant Plaza Construction Corp. and Rite-Way called for demolition, as well as rubbish removal, plaintiff was not a member of the demolition team (cf. Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 882 [2003]; Rivera v Squibb Corp., 184 AD2d 239 [1992]). Furthermore, Rite-Way was not at the site that day to perform demolition, and it had not been there in the nearly three weeks since the phase-one demolition had concluded. Since plaintiff was not performing tasks ongoing and contemporaneous with the greater project, and the work he was performing was a separate activity easily distinguishable from the construction project, he was not intended to be protected by the statute (see Martinez v City of New York, 93 NY2d 322 [1999]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
Rodriguez v Gany


Hoey, King, Toker & Epstein (Mischel & Horn, P.C., New York,
N.Y. [Scott T. Horn and Naomi M. Taub], of counsel), for appellants.
Gess Gess & Scanlon, P.C., New York, N.Y. (David Owens of
counsel), for respondent.
Bruce Somerstein & Associates. P.C., New York, N.Y. (Donald
J. Kavanagh of counsel), for defendant
Woodstar Contracting Corp.


DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Hope Margulies Gany and Victor Gany appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Saitta, J.), dated February 2, 2010, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them. Justice Balkin has been substituted for the late Justice Fisher (see 22 NYCRR 270.1[c]).
ORDERED that the order is affirmed insofar as appealed from, with costs to the respondent.
The defendants Hope Margulies Gany and Victor Gany (hereinafter the Ganys) own a home in Great Neck, Nassau County, where they live with their two children. Victor Gany is the president of a company that does work in sheet metal and duct installation. He has also served on the boards of directors of two trade employers associations. In 2000, the Ganys decided to renovate their house by adding a great room and a room over the garage. The Ganys hired the defendant Woodstar Contracting Corp. (hereinafter Woodstar) as a contractor for the project. Woodstar hired the subcontractors for the project, except for the roofing subcontractor and the heating, ventilation, and air-conditioning (hereinafter HVAC) subcontractor. Victor Gany chose to hire those subcontractors himself because he knew people in the business. Victor hired the third-party defendant Martin Associates, Inc., which subcontracted the HVAC work to nonparty Dynamic Air Conditioning (hereinafter Dynamic). Dynamic employed the plaintiff, Julio Rodriguez.
The complaint alleged that the Ganys directed and supervised the work. In this regard, the plaintiff testified at his deposition that he had helped his coworker several times to move some duct work because Victor Gany had told the coworker to move it. The plaintiff was installing duct work in the great [*2]room on February 20, 2002, using a 20-foot ladder to move the duct material from the ground to a second-floor landing. He had just placed the material on the landing and had begun to descend the ladder, when the ladder collapsed, causing him to fall and allegedly sustain injuries to his leg. This action ensued.
The Ganys moved for summary judgment dismissing the complaint insofar as asserted against them, on the grounds that they did not supervise or control the plaintiff's work, and that they were entitled to the homeowner's exemption to the Labor Law. In the order appealed from, the Supreme Court, inter alia, denied the Ganys' motion, holding that there was a triable issue of fact regarding whether the Ganys supervised or controlled the plaintiff's work. We affirm the order insofar as appealed from.
The Supreme Court properly denied those branches of the Ganys' motion which were for summary judgment dismissing the causes of action based upon Labor Law § 240(1) and § 241(6) insofar as asserted against them. Both Labor Law § 240(1) and § 241(6) contain language exempting "owners of one and two-family dwellings who contract for but do not direct or control the work" (Labor Law § 240[1], 241[6]; Chowdhury v Rodriguez, 57 AD3d 121, 126 [internal quotation marks omitted]). In order to receive the benefit of this homeowner's exemption, a defendant must demonstrate: (1) that the work was performed at a one- or two-family dwelling, and (2) that they did not direct or control the work (see Chowdhury v Rodriguez, 57 AD3d at 126). "The exception was enacted to protect those who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against absolute liability" (Acosta v Hadjigavriel, 18 AD3d 406, 406). While the Ganys demonstrated their prima facie entitlement to judgment as a matter of law dismissing the causes of action based upon Labor Law § 240(1) and § 241(6) insofar as asserted against them, in opposition the plaintiff raised a triable issue of fact regarding whether the Ganys directed or controlled the plaintiff's work (see Acosta v Hadjigavriel, 18 AD3d at 406-07; see also Zamora v Frantellizzi, 45 AD3d 580, 581; Rothman v Shaljian, 278 AD2d 297, 297-298; Holocek v Nowak Constn. Co., 259 AD2d 466; see generally Zuckerman v City of New York, 49 NY2d 557, 562).
Further, for an owner to be held liable pursuant to Labor Law § 200 in a case such as this where the claim arises out of the methods or means of the work, a plaintiff must show that the owner supervised or controlled the work (see Ortega v Puccia, 57 AD3d 54). Since there is a triable issue of fact as to whether the Ganys supervised or controlled the plaintiff's work, the Supreme Court properly denied that branch of their motion which was for summary judgment dismissing the cause of action alleging the violation of Labor Law § 200 insofar as asserted against them (see Acosta v Hadjigavriel, 18 AD3d at 407). For the same reasons, the Supreme Court properly denied that branch of the Ganys' motion which was for summary judgment dismissing the cause of action alleging common-law negligence insofar as asserted against them (see Ortega v Puccia, 57 AD3d 54).
The Ganys' remaining contentions are without merit.
MASTRO, J.P., BALKIN, LEVENTHAL and BELEN, JJ., concur.
Mendoza v Highpoint Associates, IX, LLC

Defendant appeals from an order of the Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about April 12, 2010, which, insofar as appealed from as limited by the briefs, denied its motion for summary judgment dismissing the complaint.


Havkins Rosenfeld Ritzert & Varriale, LLP, New
York (Jonathan A. Judd and
Shanna R. Torgerson of
counsel), for appellant.
Davidson & Cohen, P.C., Rockville Centre (Robin
Mary Heaney of counsel), for
respondent.




RENWICK, J.
Plaintiff Jose Mendoza brought this action for injuries sustained during a fall while he was on a roof to inspect damage and determine the extent of necessary repairs. Plaintiff asserts claims under Labor Law §§ 240(1), 241(6) and 200, and common-law negligence. During the discovery process, defendant refused to produce an employee of the subject property for a deposition. As a result, Supreme Court ultimately precluded defendant from introducing evidence at trial with respect to liability.
Defendant does not dispute that Supreme Court appropriately exercised its discretion to fashion a remedy for its failure to comply with discovery demands. What defendant disputes is Supreme Court's subsequent determination that the preclusion order ipso facto prevented it from making a motion for summary judgment on the ground that plaintiff would not be able to make a prima facie case on liability. For the reasons explained below, we find the preclusion order did not prevent defendant from making such a motion. Accordingly, we entertain the motion on the merits.
Factual and Procedural Background
The alleged roof accident occurred in April 2006, at the premises known as 81-11A Broadway Avenue, Elmhurst, New York, a vacant one-story commercial building. This action was commenced in March 2007 against defendant Highpoint Associates IX, LLC (Highpoint), the owner of the premises. Plaintiff's deposition took place on November 5, 2008, at which time he testified that on the date of the accident, he was employed by Keystone Management (Keystone) as a property manager. Keystone's headquarters were located in California, but the entity also managed numerous properties in New York City. Plaintiff supervised nine Keystone employees at various properties in the City, including the instant premises. Plaintiff's supervisor in California was Raha Arna who was no longer employed by Keystone at the time this action was commenced.
At the time of the accident, plaintiff was "assessing" a damaged roof. The previous day, Arna had told plaintiff that there was a leak in the roof, and directed him to assess the damage and fix it. Plaintiff testified that the leaking started during the summer of 2005, at which time debris covered a large part of the roof, further straining it. Arna had instructed plaintiff to have the debris removed by Keystone employees. The employees, however, complained that the roof did not feel right, and plaintiff informed Arna that the roof was "flimsy" and "not too safe." Plaintiff, at Arna's direction, took photos and e-mailed them to Arna. Plaintiff was aware that prior tenants had complained, at least since 2005, to Keystone and the building owner about leaks in the roof; plaintiff heard about the complaints from Arna, but he did not know to whom the complaints were made.
Prior to the accident, plaintiff was "doing a walk-through" on the roof, assessing what repairs were necessary and what materials would be required, and taking down notes. At one point, after about one half hour, he stopped near the middle of the roof. The roof then "started to buckle" causing him to fall to his right side and land on his knee. As plaintiff explained, prior to his fall, the roof under his right foot started to "sink, to give way . . . about maybe an inch and a half, two inches," which "threw [plaintiff] off to the side," and caused him to fall onto his right knee, coming into contact with a piece of metal, "like a conduit pipe," on a conduit platform.
Daniel Shalom, the president of Keystone, was deposed on March 13, 2009. Shalom, a resident of California, testified that he was the sole shareholder of Keystone, which managed about 30 buildings, about half in the City and the other half in California. Shalom denied having any ownership interest in Highpoint but admitted he had such interest in several similarly named entities, which owned properties in the City. He claimed that his sister, Amy Shalom, was the sole owner of Highpoint.
Shalom remembered discussing the roof leaks with plaintiff and directing him to inspect the roof. Although Shalom kept records of tenants' complaints for the various properties he managed, he did not bring any of them to the deposition; they remained in California. However, he remembered reviewing records revealing that the entire roof of the Elmhurst property had to be replaced in May 2006 because of leaks.
Because of the repeated failures to comply with discovery demands, by order dated May 5, 2009, Supreme Court precluded Highpoint from introducing evidence at trial unless, within 45 days of the order, defendant produced employees who had personal knowledge of facts related to the instant accident. Defendant was also directed to produce copies of all violations on the building for the year preceding plaintiff's accident. By its terms, the order was self-executing, specifically directing that defendant's failure to comply would result in preclusion of evidence at trial as to liability.
Defendant failed to produce any witness for a deposition. Nor did defendant appeal from the preclusion order. Instead, defendant moved for summary judgment on the ground, inter alia, that plaintiff would not be able to make out a prima facie case on liability for any of the claims asserted against it. Plaintiff opposed and cross-moved for summary judgment. Supreme Court refused to hear defendant's motion on the ground that the preclusion order prevented defendant from presenting any evidence at trial on liability. Likewise, Supreme Court denied plaintiff's cross motion as untimely. Defendant appeals from the refusal to entertain its motion and seeks a dismissal of the action.
Discussion

A.
As a threshold procedural issue, we find no legal impediment to examining the merits of defendant's motion for summary judgment. Contrary to Supreme Court's determination, the fact that defendant was precluded from presenting evidence at trial on liability did not affect its right to move for summary judgment. Generally, a defendant's preclusion from introducing evidence at trial does not automatically entitle a plaintiff to summary judgment (see Northway Eng'g v Felix Indus., 77 NY2d 332 [1991]; Rosario v Humphreys & Harding, 301 AD2d 406 [2003]). Indeed, a preclusion order does not relieve the plaintiff of the burden of proving its case (see Northway, 77 NY2d at 337; Murphy v Herbert Constr., Co., 297 AD2d 503 [2002]; Israel v Drei Corp., 5 AD2d 987 [1958]); nor does it preclude affirmative defenses (see e.g., Ramos v Shendell Realty Group, Inc., 8 AD3d 41 [2004] [affirmative defense of comparative negligence still a viable defense despite the preclusion order]; Mendez v Queens Plumbing Supply, Inc., 12 Misc 3d 1064 [Sup Ct, Bronx County 2006] [same]; see also Moskowitz v Garlock, 23 AD2d 943 [1965]). Therefore, a preclusion order preventing evidence at trial on liability is unlike the striking of an answer, which effectively resolves a claim against the nondisclosing defendant (see Rokina Opt. Co. v Camera King, 63 NY2d 728 [1984]).
Accordingly, summary judgment should be granted where the non-disclosing defendant can establish entitlement to such relief despite the preclusion order barring it from offering its own affirmative evidence as to liability. This Court's determination in Murphy v Herbert Constr. Co. (297 AD2d 503 [2002]) aptly illustrates the point. In Murphy, the plaintiff moved for summary judgment on liability pursuant to Labor Law § 241(6), and the defendant subcontractor cross-moved for summary judgment dismissal of the claims under Labor Law §§ 240(1) and 241(6). Supreme Court granted plaintiff summary judgment and denied defendant's cross motion in its entirety. This Court reversed and granted the non-disclosing defendant summary judgment despite the fact that the motion court had precluded it from presenting evidence at trial on liability. Specifically, this Court dismissed the Labor Law §§ 240(1) and 241(6) claims asserted against the subcontractor because the plaintiff's evidence failed to allege a key element of such claims (id. at 504).
Plaintiff's reasoning for distinguishing Murphy — adopted by the dissenters — is not persuasive. Plaintiff argues that Murphy is inapplicable, in that the plaintiff there was the movant, but failed to produce any evidence establishing a prima facie case, a fundamentally different procedural posture from that at issue here. Plaintiff contends that, since defendant has the burden of establishing a prima facie case on its motion for summary judgment through the tendering of evidence and it is barred from tendering such evidence because of the preclusion order, it cannot meet its burden.
The divergent posture of this case vis-à-vis Murphy changes nothing. What is significant is that in both cases the preclusion order did not bar the defendant from challenging the sufficiency of the plaintiff's evidence; the answer was not stricken and the preclusion did not extend beyond limiting the defendant's affirmative evidence at trial on liability. The application of the remedy of preclusion to a specific category of evidence, as applied against a defendant, should not be a device for precluding a defendant from challenging the sufficiency of the plaintiff's evidence. In fact, courts have consistently held that a defendant may establish its prima facie entitlement to judgment as a matter of law by relying upon the plaintiff's evidence, including the plaintiff's own deposition, which may negate liability (see e.g. Acheson v Shepard, 27 AD3d 596 [2006]; Wellington v Manmall, LLC, 70 AD3d 401 [2010]).
For example, in DeSantis v Lessing's, Inc. (46 AD3d 742 [2007]), the defendant established its prima facie entitlement to judgment as a matter of law by submitting the plaintiff's deposition testimony, in which she was unable to explain what caused her to trip and fall. Similarly, in Frank v Time Equities (292 AD2d 186 [2002]), this Court held that "[w]hile a defendant moving for summary judgment [in a slip-and-fall case] has the burden of demonstrating entitlement to dismissal as a matter of law, there is no need for a defendant to submit evidentiary materials . . . where the plaintiff failed to claim the existence of notice of the condition" (id. at 186). Thus, while Murphy arose in a different procedural context, its ruling underscores the basic rule applicable here: that a defendant can prevail at the summary judgment stage by challenging the sufficiency of the plaintiff's evidence.
Indeed, it cannot be seriously disputed that a preclusion order does not prevent a defendant from challenging a plaintiff's evidence at trial by moving for a directed verdict at the end of the plaintiff's case on the ground that the latter has failed to make a prima facie case. It is also beyond cavil that a motion for summary judgment is the procedural equivalent of a trial (see Crowley's Milk Co. v Klein, 24 AD2d 920 [1965]). In fact, CPLR 3212(b) implicitly draws an analogy between the motion for summary judgment and the motion for a directed verdict made at trial [FN1]. In each instance, the court is taking the case away from the fact finder by determining that there is nothing to try. Of course, the main difference is that on a summary judgment motion the judge is asked to decide the issue on papers alone while in a motion for a directed verdict, the judge has the advantage of hearing live testimony.
Significantly, we perceive no imperative policy consideration that militates against allowing by summary judgment motion what a defendant can do at trial. Contrary to the dissenters' assertions, such determination does not "perversely undermine the point of the order." On the contrary, while the purpose of a preclusion order is to make the demanding party whole (see Northway, 77 NY2d at 337), whatever disadvantage plaintiff sustained as a result of defendant's failure to provide the required discovery was overcome when Supreme Court effectively prohibited defendant from offering its own affirmative evidence at trial on liability. To further preclude defendant from making a motion for summary judgment to challenge plaintiff's evidence — as a defendant can do at trial — would give plaintiff more relief than is warranted (id.).
For the foregoing reasons, we are satisfied that the preclusion order does not constitute a procedural bar to this Court's proper disposition of defendant's motion for summary judgment on the merits. To be sure, as plaintiff correctly points out, we are mindful of the fact that defendant, by its own failure to comply with the conditional preclusion order, should be barred from offering its own affirmative evidence as to liability, either at trial or on the motion, regardless of the order's reference to "at trial." The result, otherwise, would perversely undermine the point of the order by allowing defendant to benefit from the short cut of summary judgment by use of the same evidence that otherwise would have been barred at trial. Hence, for present purposes, all of defendant's affirmative evidence is precluded.[FN2]
B.
With this evidentiary constraint in mind, we now examine defendant's motion for summary judgment on the merits. We first turn to the claims under common-law negligence and Labor Law § 200. Labor Law § 200 codifies the common law duty of an owner or an employer to provide a safe work place; it is tantamount to a common-law negligence claim in a workplace context (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]). Where, as here, the accident arises not from the methods or manner of the work, but from a dangerous premises condition, "a property owner is liable under Labor Law § 200 when the owner created the dangerous condition causing an injury or when the owner failed to remedy a dangerous or defective condition of which he or she had actual or constructive notice" (Chowdhury v Rodriguez, 57 AD3d 121, 128 [2008]; see also 261 Schultz v Hi-Tech Constr. & Mgt. Servs. Inc., 69 AD3d 701 [2010]; Artoglou v Gene Scappy Realty Corp., 57 AD3d 460 [2008]).
Here, from plaintiff's testimony, it is apparent that the roof started to leak at least in or before 2005, a year prior to the incident, and Keystone and defendant were aware of that. That the surface of the roof was in some degree compromised, was thus known to the managing agent and, at least by reasonable imputation, to the owner, defendant. At that time, plaintiff reported that the roof seemed unstable and was "flimsy." This lays the factual basis for plaintiff arguing at trial that the long-term, chronically uncorrected, water seepage through the roof placed it in a state of disrepair destabilizing its surface, providing constructive notice that the roof as a whole posed a dangerous condition to any worker sent to walk around on it. Under the circumstances, it cannot be said that plaintiff's testimony negates any common-law negligence or Labor Law § 200 claim.
The same factual allegations that support a claim under common law/Labor Law § 200 — defendant commanded plaintiff to inspect the roof despite its apparent knowledge that the roof was in a "flimsy" condition and that plaintiff was not adequately protected against the dangers of the job — also support a Labor Law § 240(1) claim.
We reject defendant's argument that plaintiff was involved only in routine maintenance, which is not a covered activity under section 240(1). Although the extent of plaintiff's responsibilities for repair of the roof is uncertain, especially since his injuries obviously prevented him from performing any subsequent roofing work, he indicated that he and his workers would perform the work. Thus, a fair reading of plaintiff's testimony indicates that at a minimum he was an integral part of the repair work, which, under ordinary circumstances, would proceed under his supervision, and that it was an imminent event and not merely a possible future task (Caraciolo v 800 Second Ave. Condominium, 294 AD2d 200 [2002] [building engineer's inspection of a rooftop water tank was a covered activity under Labor Law § 240(1), rather than routine maintenance since it was done in furtherance of the repair of an apparent malfunction]). Nor do we find any merit to defendant's argument that plaintiff's testimony does not raise an issue of fact as to whether his injuries resulted from a gravity-related hazard that brought about the need for a safety device. Consistent with the principle that "the determination of the type of protective device required for a particular job [and thus whether section 240(1) is implicated] turns on the foreseeable risks of harm presented by the nature of the work being performed" (Buckley v Columbia Grammar & Preparatory, 44 AD3d 263, 268 [2007], lv denied 10 NY3d 710 [2008]), this Court recently held in Jones v 414 Equities LLC (57 AD3d 65 [2008]), and reiterated in Espinosa v Azure Holdings II, LP (58 AD3d 287 [[2008]), that to prevail on a Labor Law § 240(1) claim based on an injury resulting from the failure of a completed and permanent building structure, "the plaintiff must show that the failure of the structure in question was a foreseeable risk of the task he was performing'" (Espinosa, at 291-292, quoting Jones, at 80), creating a need for protective devices of the kind enumerated in the statute (Espinosa at 291-292).[FN3]
In Espinosa, the plaintiff, a worker on a gut rehabilitation project, was injured when the sidewalk on which he was standing collapsed due to the failure of the cellar vault below it (58 AD3d 287, supra). This Court reversed the trial court's dismissal of the Labor Law § 240(1) claim because the evidence of the building's deteriorated condition raised a triable issue of fact as to whether the collapse of the sidewalk due to the failure of a corroded steel support beam in the cellar vault ceiling was a foreseeable risk that gave rise to the need for the kind of safety devices enumerated in the statute (id. at 289).
Prior to Jones and Espinosa, the Second Department had also held that where the building's structure in which the plaintiff was performing work was in a state of disrepair, that condition is sufficient to raise a triable issue as to whether the plaintiff's work "exposed him to a foreseeable risk of injury from an elevation-related hazard" (Shipkoski v Watch Case Factory Assoc., 292 AD2d 588 [2002]). In Shipkoski, the plaintiff's employer had contracted to board up broken windows in a vacant building. The plaintiff "allegedly was injured when, as he was walking on the deteriorated third floor measuring windows for the installation of plywood, the floor gave way and he fell through" (id. at 588). The Court affirmed the denial of the plaintiff's motion for summary judgment on his Labor Law § 240(1) claim because there were
"issues of fact as to whether the building was in such an advanced state of disrepair and decay from neglect, vandalism, and the elements that the plaintiff's work on the third floor exposed him to a foreseeable risk of injury from an elevation-related hazard, and whether the absence of a type of protective device enumerated under Labor Law § 240(1) was a proximate cause of his injuries" (292 AD2d at 588- 589).
Here, as in Espinosa and Shipkoski, there is evidence, as fully detailed above, suggesting that the roof was in a state of disrepair due to the long-term, chronically uncorrected, water seepage through the roof that had destabilized its surface. Such evidence clearly raises an issue of fact as to whether it was foreseeable that the roof would buckle. It is immaterial that the roof did not collapse since a plaintiff need not completely fall from the roof in order to recover under Labor Law § 240(1) as long as the injury resulted from an elevation-related hazard (see Dominguez v Lafayette-Boynton Hous. Corp., 240 AD2d 310 [1997]; Gramigna v Morse Diesel, 210 AD2d 115 [1994]). Plaintiff's accident was certainly caused by the effects of gravity as he lost his balance and landed on his knee when the "flimsy, unstable" roof started to "buckle" and "sink" underneath his feet. Defendants are therefore not entitled to summary judgment since plaintiff's evidence raises a triable issue of fact as to whether the flimsy, unstable condition of the roof exposed plaintiff to a foreseeable risk of injury from an elevation-related hazard, and whether the absence of a protective device enumerated under Labor Law § 240(1) was a proximate cause of his injuries.
We reach a different result with regard to plaintiff's Labor Law § 241(6) claim. To prevail on a cause of action pursuant to Labor Law § 241(6), a plaintiff must prove a violation of a provision of the Industrial Code that sets forth a specific safety standard (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]). Here, plaintiff's claim under that section is based on an alleged violation of 12 NYCRR 23-1.7(e)(2), which provides that floors, platforms and similar working areas "shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed." That regulation, however, does not apply here because the metal pipe that plaintiff allegedly collided with, when he was on the roof inspecting the damages and determining the extent of necessary repairs, is not a tripping hazard that falls within 12 NYCRR 23-1.7(e)(2). That is, since the pipe was on the roof prior to commencement of the work in connection to the roof repair, it was not left there as a result of the "work performed" (see Dalanna v City of New York, 308 AD2d 400 [2003] [plaintiff, who tripped over a protruding bolt while carrying a pipe across an outdoor 50-foot-long concrete slab, could not recover under section 241(6) since the bolt, which was embedded in the ground, was not "dirt," "debris," "scattered tools and materials," or a "sharp projection[]," as required by 12 NYCRR 23-1.7(e)(2)]). Plaintiff's version of the accident, therefore, negates any 12 NYCRR 23 - 1.7(e)(2) violation.
Conclusion

Accordingly, the order of the Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about April 12, 2010, which, insofar as appealed from as limited by the briefs, denied defendant's motion for summary judgment dismissing the complaint, should be modified, on the law, to the extent of granting defendant summary judgment on plaintiff's Labor Law § 241(6) claim, and otherwise affirmed, without costs.
All concur except Acosta, J. who concurs in part and dissents in part in a separate Opinion, and Tom, J.P. who dissents in part in a separate Opinion.

ACOSTA, J. (concurring in part and dissenting in part)
I disagree with the majority's assessment of the "threshold procedural issue," namely, whether the preclusion order prevented defendant from submitting evidence in support of its summary judgment motion. Instead, I agree with plaintiff that defendant, by its own failure to comply with the conditional preclusion order, should be barred from offering affirmative evidence as to liability, either at trial or on the motion, regardless of the order's reference to "at trial." Indeed, the majority acknowledges that allowing defendant to submit its own affirmative evidence on liability in support of its summary judgment motion would "undermine the point of the order by allowing defendant to benefit from the short cut of summary judgment by use of the same evidence that otherwise would have been barred at trial." Apparently categorizing evidence as for either plaintiff or the defense, the majority condones defendant's use of plaintiff's deposition testimony to support its motion because it was given by plaintiff and it is therefore not defendant's affirmative evidence. I disagree. The fact that defendant used plaintiff's deposition testimony makes it defendant's evidence.
The majority grounds its holding on various legal precepts, none of which are dispositive of the issue. Initially, it posits that "a preclusion order does not relieve the plaintiff of the burden of proving its case." While this precept is true, the majority simply ignores the different burdens of defendant at trial, where it can simply wait for evidence to be introduced by plaintiff, and on summary judgment, where it has the burden, as movant, to come forward with evidence in admissible form (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). In the context of a summary judgment motion, assuming a defendant establishes its prima facie entitlement to relief, the burden shifts to the plaintiff, not to prove its case, but merely to raise triable issues of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Significantly, the burden shifts only if the defendant first establishes its prima facie entitlement. To do so, it must submit papers, including supporting evidence (id.). Here, inasmuch as defendant was precluded from submitting any evidence on liability, in essence, defendant merely submitted a notice of motion and counsel's affirmation, which are insufficient for summary judgment (see Zuckerman at 563; Di Sabato v Soffes, 9 AD2d 297, 300-301 [1959]). That the preclusion order did not preclude defendant from raising affirmative defenses, such as comparative negligence as the majority notes, is of no moment.
The majority also posits that if the case had gone to trial, the order would not have prevented defendant from moving for a directed verdict based on the evidence presented by plaintiff. However, that is not the posture of this case. In a trial, a preclusion order would not prevent defendant from using any evidence properly introduced by plaintiff. Thus, a trial judge can rule on a directed verdict motion based on the body of evidence before it. Here, however, as noted above, there was no evidence properly put forth in defendant's moving papers. And, unlike a trial where the plaintiff has the ultimate burden, in the context of a summary judgment motion, plaintiff can simply stay quiet unless defendant has established its prima facie right to summary judgment.
For this reason, the cases relied on by the majority are not on point. In Murphy v Herbert Constr. Co. (297 AD2d 503 [2002]), it was the plaintiff who initially moved for summary judgment. Thus, although the defendant was precluded from presenting any evidence, the court properly ruled on the defendant's cross motion for dismissal based on the body of evidence that had been properly presented by the plaintiff. Other cases cited by the majority are equally inapposite. In DeSantis v Lessing's Inc. (46 AD3d 742 [2007]), the defendant, unlike in the present case, was not precluded from submitting evidence, which it did in the form of the plaintiff's deposition testimony. In Frank v Time Equities (292 AD2d 186 [2002]), a slip and fall case, not only was the defendant permitted to submit evidence, but the plaintiff failed to claim notice of condition (see also Acheson v Shepard, 27 AD3d 596 [2006]; Wellington v Manmall, LLC, 70 AD3d 401 [2010]).
Accordingly, in my opinion, the motion court properly declined to entertain defendant's motion.[FN1]
Assuming for the sake of argument that the majority is correct on the "threshold procedural issue," I agree with its analysis with respect to the Labor Law §§ 200 and 241(6) claims. With respect to the 240(1) claim, however, I concur with the result only inasmuch as there is no statutory requirement that a plaintiff establish that an injury was foreseeable to prevail on a 240(1) claim. Rather, as I stated recently in Vasquez v Urbahn (__ AD3d __, 2010 NY Slip Op 09076, *5 [2010] [dissenting opinion]), the plain language of Labor Law § 240(1) mandates that in covered activity, "contractors and owners shall furnish safety devices to workers" (emphasis added). "Nowhere is there a requirement that owners and contractors have to supply safety devices only when they divine there is a foreseeable risk of injury in a particular task because of the employee's relative elevation. Nor . . . is there a distinction in the statute between a permanent structure and a temporary structure" (id.), or, as the majority seems to be implying in the present case, between a structure and the "surface" of the structure.
The concept of foreseeability in the context of a 240(1) case was addressed by the Court of Appeals in Gordon v Eastern Ry. Supply (82 NY2d 555 [1993]), where it explicitly held that a "plaintiff need not demonstrate that the precise manner in which the accident happened or the injuries occurred was foreseeable; it is sufficient that he demonstrate that the risk of some injury from defendant's conduct was foreseeable" (id. at 562) (emphasis added). In other words, "[i]t is enough that given the inherently dangerous conditions of work sites, it is foreseeable that an owner or contractor's failure to provide safety devices to workers, as here, may create an injury" (Vasquez at *4)[FN2] . The majority, without any statutory support, turns this concept on its head and places the burden on plaintiff instead. For this reason, cases such as Jones v 414 Equities LLC (57 AD3d 65 [2008]) and Espinosa v Azure Holdings II, LP (58 AD3d 287 [2008]), relied on heavily by the majority, are legally unsound.
Otherwise, I agree with the majority. Contrary to the defendant's assertion, the facts indicate that plaintiff's activity was not routine maintenance. Specifically, his testimony set forth that defendant and/or its managing agent Keystone was aware there was a chronic leaking problem which had to be repaired, that it was going to be repaired and that plaintiff was directed to go to the roof for the purpose of commencing the repair operation, where he and his workers would perform the work.
Thus, I agree with the majority that a fair reading of plaintiff's testimony indicates that plaintiff's inspection of the rooftop was a covered activity under Labor Law § 240(1), rather than routine maintenance, since it was done in furtherance of the repair (Caraciolo v 800 Second Ave. Condominium, 294 AD2d 200, 201-202 [2002] [building engineer's inspection of a rooftop water tank was a covered activity under Labor Law § 240(1) rather than routine maintenance, since it was done in furtherance of the repair of an apparent malfunction]). Moreover, as the majority correctly found, plaintiff's injury resulted from an elevation-related hazard even though the roof did not completely cave in (see Dominguez v Lafayette-Boynton Hous. Corp., 240 AD2d 310 [1997]; Gramigna v Morse Diesel, 210 AD2d 115 [1994]), and he was not provided with adequate protection devices. Indeed, under the circumstances, it is not improbable that had plaintiff been provided with roof brackets, toe boards, safety lines, belts or other safety devices, his body would not have collapsed in the manner in which it did, after the roof buckled underneath him. Since it appears that plaintiff was placed at an elevation-related risk (dilapidated roof) and that he was not adequately protected against the dangers of the job, defendant has not established that plaintiff cannot maintain a Labor Law § 240(1) claim at trial. Accordingly, defendant was not entitled to summary dismissal of the Labor Law § 240(1) claim.
TOM, J.P. (dissenting in part)
I concur with Justice Acosta to the extent that the preclusion order requires denial of defendant's motion. Because defendant is barred from offering evidence on the issue of liability, it is unable to demonstrate its prima facie entitlement to summary judgment. Accordingly, it is unnecessary to consider the merits.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about April 12, 2010, modified, on the law, to the extent of granting defendant summary judgment on plaintiff's Labor Law § 241(6) claim, and otherwise affirmed, without costs.
Opinion by Renwick, J. All concur except Acosta, J. who concurs in part and dissents in part in a separate Opinion and Tom, J.P. who dissents in part in a separate Opinion.
Tom, J.P., McGuire, Acosta, Renwick, Freedman, JJ.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 8, 2011
CLERK
Footnotes


Footnote 1: The motion for a directed verdict, although still called that in practice, is officially known today as a motion for judgment during trial (see CPLR 4401).

Footnote 2: The dissent incorrectly points out that "[i]n essence, defendant merely submitted a notice of motion and counsel's affirmation ... ," when in fact defendant supported its motion with the deposition testimony of plaintiff, among others.

Footnote 3: Justice Acosta's writing takes exception to our reliance on Jones and its progeny, which it finds "legally unsound" for improperly injecting a forseeability requirement into a Labor Law 240(1) analysis. We, however, find Jones consistent with Court of Appeals precedent (see e.g. Gordon v Eastern Ry. Supply, 82 NY2d 555, 562 [1993] ["(t)o establish a prima facie case (of a violation of Labor Law § 240[1]) plaintiff need not demonstrate that the precise manner in which the accident happened or the injuries occurred was foreseeable; it is sufficient that he demonstrate that the risk of some injury from defendants' conduct was foreseeable" [emphasis added]). As this Court recently pointed out in Vasquez v Urbahn Assoc. Inc. (__ AD3d __, 2010 N.Y. Slip Op. 09076 [December 09, 2010]), "While it is true that Labor Law § 240(1) fails to mention any foreseeability requirement as a predicate to its violation, a foreseeability requirement must necessarily be imputed as to every claim pursuant thereto, when as here, the claim is premised on a collapsing permanent structure."

Footnote 1: Although plaintiff cross-moved for summary judgment, the court declined to entertain that motion as well, finding that it was untimely filed. That portion of the order has not been appealed.

Footnote 2: Accordingly, the plaintiff's 240(1) claim in Gordon was not dismissed by the Court notwithstanding that the injury was the result of an unforeseeable accident, that is the malfunctioning sandblaster trigger (Gordon at 562).

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