Coverage Pointers - Volume XII, No. 22

Dear Coverage Pointers Subscribers:

Our thoughts, hearts and prayers go out to those who are suffering so from the winds which have devastated parts of Alabama, Georgia and Mississippi.

This issue is "light" with the Easter week keeping the number of insurance coverage decisions to a duller roar than usual.

Albany Office Operational

Don't forget that we have an attorney resident in Albany, Cassie Kazukenus, able to efficiently and effectively handle matters in the Capital District, up and down the Hudson and in all around that portion of the state.

Hurwitz & Fine's 24-Hour Response Team Activated

As exciting as coverage is, with lightning fast turn-around times and precision opinions on the fly, my partner Harry Mooney sees a different type of action as one of the members of the firm's 24 Hour Emergency Response Team. As I type, Harry is throwing on his coat and racing to the scene of accident where a tractor trailer was lifted up by some of the unbelievable winds we've been having and was slammed sideways on an international bridge to Canada where a spill ensued. When Harry got the call he was ready.

Our 24 Hour Emergency Response Team has given their home and cell phone numbers to clients who deal with environmental spills, trucking accidents, construction accidents and the like so we can respond with unequaled speed to get the right experts on the scene as quickly as possible to contain the situation. Harry maintains an accident protocol briefcase in his trunk at all times containing all the home and cell phone numbers of the photographers, adjusters, hazmat crews and forensics experts, our carefully selected and vetted panel of experts, to respond in serious accidents to preserve evidence, contain damages and help mount the best possible defense.

In fact, not just in New York State, Hurwitz & Fine, P.C. is networked nationally and situated locally to respond to accidents across the country and into Canada. We are very familiar with the processes necessary for assuring compliance with federal and state regulations. Drop me a line and let me know if you want a copy of our 24 Hour Emergency Response Team packet. This is one file you hope not to need, but would be oh-so-glad to have if you needed it.

Zone of Danger and Serious Injury

There is one decision that I want to highlight, and it's in Margo's column, Kranis v. Biederbeck, a Second Department decision. In that case, infant Ryan was in a motor vehicle accident in which his father was killed. A claim for emotional distress was brought on behalf of the infant.

Defense counsel established that the infant did not suffer a "Serious Injury" as defined in the No Fault law and the case was dismissed.

What constitutes a zone of danger claim in New York?

In order to recover for an alleged emotional injury based on the zone of danger theory of liability, a plaintiff must establish that he suffered serious emotional distress that was proximately caused by the observation of a family member's death or serious injury while in the zone of danger. The emotional injury must be not only serious and verifiable but as the Court of Appeals has described, in the Bovsun case cited below, must be "tied, as a matter of proximate causation, to the observation of the serious injury or death of the family member and such injury or death must have been caused by the conduct of the defendant."

So, while the infant in this case may have such a viable claim against, for example, the driver of the other car, having that claim does not give him the right to sue for bodily injuries in the absence of a "Serious Injury:"

"Although a causally-related emotional injury, alone or in combination with a physical injury, can constitute a serious injury'" within the meaning of Insurance Law § 5102(d) . such injury must be serious and verifiable, and must also be established by objective medical evidence (see Bissonette v Compo, 307 AD2d 673, 674; see also Bovsun v Sanperi, 61 NY2d 219, 231-232 .).

Surely a logical decision, it is surprising that the issue of the necessity of establishing a Serious Injury in emotional distress and zone of danger claims isn't litigated more often than it is.

So let me send kudos to Maurice J. Recchia, from the Suffern, New York firm of Kornfeld, Rew, Newman & Simeone, who successfully argued that case.

Hey, and while I'm thinking of that firm, I cannot help but taking a moment to salute and send my best wishes to Thomas J, Newman, Sr., of counsel to that fine law firm.

Tom Newman exemplifies all that is good and decent about the practice and profession of the law. Practicing since 1954, I consider him one of the Deans of coverage and defense work in New York State and the nation. A true gentlemen, a kind soul, a wonderful mentor and fabulous lawyer, I have been privileged to know him for many years. My affection for Tom and his late wife, Florence, is boundless. Tom has had some health challenges lately. Keep him in your thoughts, as we do here.

Notes from Audrey-ville:

The multitude of decisions reviewed this edition involve yet again scrutiny of a peer review report which is the basis for denying durable medical equipment or electro-diagnostic testing. I urge you to review these decisions to gain a feel for what the Upstate Arbitrators are looking at when reviewing not just the peer review report but also Applicant's evidence. In short, the decisions are indicating that the peer reviewer needs to cite an authoritative article that is on point to the current case, to set forth what the standard is using the equipment or conducting a particular test. Thereafter, the reviewer needs to apply that standard to the current case and explain why the standard has not been met. Further, if the medical records reveal positive objective tests then the reviewer needs to explain why there is no significance to those tests when determining the lack of medical necessity for the testing or equipment.

There are increasingly more arbitrations involving durable medical equipment and electro-diagnostic testing and both parties should be carefully reviewing their evidence and expert opinion supporting either medical necessity or lack thereof before filing for arbitration.

Importantly, this is an area that is ripe for training on compliance with the current legal standards being applied to durable medical equipment and electro-diagnostic testing. If we can be of any assistance please email me at [email protected].

Audrey Seeley

One Hundred Years Ago Today:

Syracuse Herald

April 30, 1911

Ten Dead or Missing - 50 Injured

Wrecked Excursion Train Burns

Seven of the Victims are Utica Teachers

Charred Bones Seen Beneath Flaming Wreckage

Conductor and Baggage Master Among the Dead

Train Carried 169 Passengers; Wreck at Martins Creek New Jersey

Eaton PA, April 29 - A Special Train Carrying 160 school teachers and their friends from Utica and Syracuse, bound for Washington, D.C. for a holiday was wrecked on the Belividere-Delaware Division of the Pennsylvania Railroad at Martins Creek, New Jersey, eight miles north of this city this afternoon. Seven persons are missing and are believed to be dead. Three others are known to be dead. Charred bones have been found in the burned ruins of the train. The injured number at least fifty, some of whom will, it is believed, will die.

The train was traveling at a rate of fifty miles an hour and the locomotive struck a sharp curve, where men had been repairing the track, it jumped and ran along a hillside, carrying four of the five cars with it. All the cars took fire and burned like tinder. Not a splinter is left .

Editor's Note: We contacted the Utica School Board to see if a memorial was planned. We did not get a response.

Earl's Pearls:

I cannot tell you how grateful I am that Earl Cantwell continues fraud series in this week's issue, with a discussion about Comprehensive, Collision and No Fault Fraud. These articles and checklists have been so well-received by so many. Training anybody?

One Hundred Years Ago Today:

Famed first baseman John Phalen "Stuffy" McInnis became the youngest member of Connie Mack's famed "$100,000 infield," joining "Home Run" Baker and other high-priced talent. On April 29, 1911, Stuffy went five-for-five, all singles, against the New York Highlanders' Hippo Vaughn and Jack Quinn while seeing only seven pitches. He hit the first pitch he saw for a single three times and the second pitch twice.

Now Hippo Vaughn is a great baseball character. Vaughn earned his nickname because of his girth, 6'4" and 215 pounds. He is best remembered for his participation in what the record books used to refer to as a "double no-hitter." On May 2, 1917, at the ballpark now known as Wrigley Field, Vaughn paired with Fred Toney of the Res for nine scoreless and hitless innings. In the top of the 10th, the Reds scored on a couple of hits after Vaughn had retired the first batter. This game is no longer considered as a no-hitter for Vaughn; but it is still the only occasion in major league history in which a regulation nine innings was played without either team logging a hit.

Hippo still holds the record for most errors by a National League pitcher in a career, with 64. Nolan Ryan had 90, but split between both leagues.

Falling on the Sword With Errata:

Hats off to Barry Reynolds from South Carolina Farm Bureau Insurance for being the first (of several) to point out the it's Fort Sumter, not Fort Sumpter, that was the focus of the first shot of the Civil War, named for General Thomas Sumter, a partisan fighter during the Revolutionary War. My weak defense to that spelling error is that I had "cut and paste" from the New York Times article on the battle and the Times was guilty of the spelling miscue (and I adopted it). Barry also reminded me that the first defensive shot fired by the Union Army was by baseball's Abner Doubleday, of Cooperstown fame, who was second-in-command for the US forces.

Speaking of baseball and errata, my partner Paul Suozzi was the first of several to correctly note that I had reversed the league affiliations of the New York Giants and Washington Senators in that issue as well.

Peiper's Perspectives on Property (and Potpourri):

Greetings from windy Buffalo. After a flood of decisions in our last issue, we have hit another dry spell. Our only reviewed case in this week's potpourri deals with how a decision of the Workers' Compensation Board may impact a related personal injury action.

With the 1996 amendments to the Workers' Compensation law, an employer is, essentially, protected from civil litigation (save grave injuries and contractual obligations). As such, generally speaking, having one as an employee often provides protection for an otherwise viable defendant. Moreover, in the case of grave injuries, it often provides an additional source of coverage through the Workers' Compensation Policy. However, where workers' compensation benefits are concerned, a company may well be best served by arguing that an injured party is not, in fact, an employee.

It is in this context that the question of whether or not the Workers' Compensation Board has a preclusive effect upon concurrently litigated personal injury actions often arises. For instance, is the Board's determination of employment binding upon the alleged "employer"? How about the injured party or a third-party for that matter?

Generally speaking, the determination of the Board may be binding upon those parties whom had a full and fair opportunity to litigate the issue. However, as the First Department reminds us in Auqui (which we review below), mixed issues of law and fact do not provide the basis for a collateral estoppel argument in a later case. The Court in Auqui reminds us that issues that require an interpretation of statute and/or regulation (such as employment status or, as the case in Auqui, the nature and extent of a disability) will not be provided preclusive effect in subsequent litigation. While these determinations will be fact driven in every case, it makes sense to remember the potential impact of collateral estoppel in a subsequent proceedings, as well as the arguments that can mounted against any such estoppel arguments.

Steve Peiper
[email protected]

One Hundred Years Ago -- Medical Marijuana Authorized -- The More Things Change, the More They Remain the Same

By Acts 1911, Chapter 372, adopted on April 29, 1911, Massachusetts made the free commerce of marijuana illegal, unless it was prescribed by a physician's prescription.

Rescission

Rescission of a policy for material misrepresentations is a tricky business and requires a number of important steps. In certain kinds of cases - where there is mandatory coverage in place - rescission of a policy may not be possible, only prospective cancellation. There's an interesting case in my column reminding insurers that once a decision has been made to rescind a policy, inconsistent action on the party of the carrier may lead to policy reinstatement. Careful

Civil War News - 150 Years Ago Today

Confederate President Jefferson Davis Announces Ratification of Confederate Constitution:

Montgomery, April 29, 1861.

Gentlemen of the Congress: It is my pleasing duty to announce to you that the Constitution framed for the establishment of a permanent Government for the Confederate States has been ratified by conventions in each of those States to which it was referred. To inaugurate the Government in its full proportions and upon its own substantial basis of the popular will, it only remains that elections should be held for the designation of the officers to administer it. There is every reason to believe that at no distant day other States, identified in political principle and community of interests with those which you represent, will join this Confederacy, giving to its typical constellation increased splendor, to its Government of free, equal, and sovereign States a wider sphere of usefulness, and to the friends of constitutional liberty a greater security for its harmonious and perpetual existence.

Headlines from This Week's Issue of Coverage Pointers:

KOHANE'S COVERAGE CORNER
Dan D. Kohane

[email protected]

  • Insured Knew of Illness Allegedly Caused by Bad Clams and Its Failure to Timely Notify Carrier Leads to a Loss in Coverage
  • Activities Inconsistent with Rescission May Preclude Rescission


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

  • MRI Taken Four Years After Accident Is Too Remote to Be Probative
  • Plaintiff's Affidavit, Deposition Testimony, and Orthopedic Surgeon's Affirmation Support Plaintiff's 90/180-Day Claim
  • Plaintiff's Bill of Particulars Defeats His 90/180-Day Claim
  • Plaintiff's "Zone of Danger" Claim Unsupported by Objective Medical Evidence
  • Issue of First Impression: Prescribed Bed Rest to Deal With Preterm Labor Causally Related to Accident Meets Threshold Under 90/180-Day Category
  • Plaintiff Raises Issue of Fact Sufficient to Rebut Opinion That Conditions Revealed on MRI Are Not Causally Related
  • Defendants Meet Burden But Plaintiff Raises Issue of Fact
  • Once Again, Defendant Fails to Meet Burden Where Experts Do Not Address 90/180-Day Claim Set Forth in Bill of Particulars

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

ARBITRATION

  • Peer Review Opinion Partially Persuasive Upon Review of Cited Journal
  • Peer Review Opinion Not Persuasive as Authoritative Source Not Cited to Support Contentions of Lack of Medical Necessity
  • Peer Review Opinion Upheld When Careful Review of Letter of Medical Necessity Conducted
  • Insurer Properly Invokes Intoxication Exclusion Without Any BAC Testing

LITIGATION

  • Insurer Demonstrates Policy Condition to Appear for IMEs Violated
  • Insurer Demonstrates Policy Condition to Appear for EUO Violated
  • Statute of Limitations Analysis When No Denial of Claim Issued
  • Insurer's Cross-Motion Denied on Failure to Appear for EUO Due to Lack of Description in Attorney Affidavit on Practice of Mailing EUO Notices

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

  • Ruling of Workers' Compensation Board Does Not Preclude Plaintiff From Litigating Issues of Disability in the Related Personal Injury Action

CASSIE'S CAPITAL CONNECTION
Cassandra A. Kazukenus
[email protected]

  • Draft Changes to Regulation 68 - No-Fault Regulation

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

  • What is the Appropriate Standard of Review?


JEN'S GEMS
Jennifer A. Ehman

[email protected]

  • · Although Insurer Waited Over Four Months To Deny Coverage Based on Late Notice, Court Finds a Question of Fact Precluding Summary Judgment
  • · City Court Has Jurisdiction to Determine Applicability of a Policy Exclusion in a First Party Claim Where the Amount at Issue Is Set

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

"RED FLAGS" OF COMP/COLLISION AND NO-FAULT FRAUD

Stay dry.

Dan

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

LinkedIn: www.linkedin.com/in/kohane

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

NEWSLETTER EDITOR
Dan D. Kohane

[email protected]


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

Fijal’s Federal Focus
Jen’s Gems
Earl’s Pearls
Across Borders


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

04/21/11         Tower Insurance Co. v. Babylon Fish & Clam, Inc.
Appellate Division, First Department
Insured Knew of Illness Allegedly Caused by Bad Clams and Its Failure to Timely Notify Carrier Leads to a Loss in Coverage
Menken commenced a wrongful death action arising out of an alleged food poisoning incident at Babylon’s restaurant on July 16, 2007. Tower contended that Babylon waited almost a year before reporting the incident to Tower, thereby breaching its insurance contract requiring notice “as soon as is practicable." It was not until June 26, 2008 when the insured send the complaint and a notice form to Tower and Tower disclaimed coverage by letter dated July 23, 2008, alleging that Babylon failed to give timely notice of the claim. Tower alleged that Babylon was aware of the occurrence within a month of the incident

The court agreed with Tower that notice of the occurrence was untimely as a matter of law. Tower established that its insured, Babylon, failed to report the incident for nearly one year. In response, Babylon failed to demonstrate that a reasonably prudent person, upon learning of the incident, would have a good faith, objective basis for believing that litigation would not be commenced. Having failed to do so, the insurer was entitled to summary judgment in its favor declaring that it had no duty to defend or indemnify Babylon.

Further, the record evidence shows that Babylon should have reasonably anticipated that a claim would be asserted. Mrs. Menken notified Babylon less than one month after the incident that her husband had become sick due to food he ate at the restaurant. This statement, whether or not true, should have reasonably alerted the insured that a claim was possible. On the following day, according to Melissa Laroque, Babylon's president, an inspector from the Suffolk County Department of Health Services came to inspect the restaurant based on a report that a patron had become ill as a result of eating clams. Laroque further admitted that the health inspector returned two days later, on August 15, 2007, at which time he informed her that the sick patron was the decedent, Michael Menken, and advised her of "some deficiencies" uncovered by his inspection.

The relevant legal standard is "not whether the insured believes he will ultimately be found liable for the injury, but whether he has a reasonable basis for a belief that no claim will be asserted against him."
Editor’s Note:  Another Tower victory.  Attaboy Max – wait, he didn’t handle it. Hard to imagine.

04/19/11         The United States Life Ins. Co. v. Grunhut
Appellate Division, First Department
Activities Inconsistent with Rescission May Preclude Rescission
Just an interesting little decision dealing with an application to rescind a policy.  This case likely involved a life policy but the concepts are no different.  Apparently, the insurer communicated to the policyholder that it was rescinding a policy based, we assume, on some material misrepresentation.  However, after so advising, the insurer continued to accept premiums on the policy for another three months, purportedly to “protect the insured” pending the determination of the action.  The court found that accepting the premium was inconsistent with a decision to rescind and therefore the carrier waived its right to do so.
Editor’s Note:  Rescission requires, generally, unequivocal and consistent conduct that disavows a policy.


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


04/28/11         Beatty v. Miah
Appellate Division, First Department
MRI Taken Four Years After Accident Is Too Remote to Be Probative
Defendants’ expert neurologist, orthopedist and radiologist all concluded the plaintiff did not sustain a serious injury.  Plaintiff’s MRI revealed a bulging disc but it was taken four years after the accident and therefore was too remote to be probative.  This is especially so because neither plaintiff’s radiologist nor treating doctor offered any non-speculative opinion as to whether the bulging disc was causally related to the accident.  In addition, plaintiff’s testimony that he missed only one day of work and was confined to bed only after work defeated his claim under the 90/180-day category.

04/26/11         Castillo v. Collado
Appellate Division, First Department
Plaintiff’s Affidavit, Deposition Testimony, and Orthopedic Surgeon’s Affirmation Support Plaintiff’s 90/180-Day Claim
Defendants’ expert orthopedic surgeon found plaintiff had normal range of motion in his left knee and that an MRI taken just three weeks after the accident did not show any recent trauma to the knee.  In addition, defendants’ radiologist concluded that the tear in the medial meniscus was degenerative because there were no signs of inflammation or recent trauma. 

In opposition, plaintiff’s orthopedic surgeon, who performed arthroscopic surgery on the left knee, set forth the objective testing methods used to reach the conclusion that the injury was causally related to the accident, and also stated that the injury resulted in a significant and permanent loss of use of the left leg.  Plaintiff’s radiologist affirmed that he did not find any degenerative changes in the left knee. 

As regards plaintiff’s claim under the 90/180-day category, plaintiff submitted his deposition testimony and affidavit in which he set forth the extent of his restrictions.  His orthopedic surgeon’s affirmation served to provide the necessary objective medical support.  The trial court’s denial of defendants’ motion was, therefore, affirmed on appeal.

04/21/11         Torres v. Triboro Services, Inc.
Appellate Division, First Department
Plaintiff’s Bill of Particulars Defeats His 90/180-Day Claim
Plaintiff claimed under the permanent consequential and/or significant limitation of use categories.  Defendant moved for summary judgment and submitted affirmed reports of a radiologist who reviewed MRIs and found degenerative changes in plaintiff’ cervical and lumbar spines and left knee, and an orthopedist who concluded the degenerative changes were consistent with plaintiff’s obesity, occupation and age.  Upon testing, he also found plaintiff had full range of motion.

In opposition, plaintiff submitted his treating physician’s affirmation in which the doctor stated that he found range of motion restrictions on the day of the accident and also 2½ years later.  Although he concluded that the injuries were permanent, the affirmation failed to raise an issue of fact with regard to causation because it did not address the opinions of defendant’s experts that the new conditions revealed in an MRI from 2007 were degenerative. 

Plaintiff’s 90/180-day claim was also dismissed because in his bill of particulars he stated that he was not confined to bed or home and that he continued working from the date of the accident.  As plaintiff’s physician’s statement that plaintiff was not able to perform most of his normal daily activities was based on plaintiff’s unsubstantiated claim that he was unable to do the “heavy physical labor” required for his job, the physician’s affirmation failed to raise an issue of fact. 

04/19/11         Kranis v. Biederbeck
Appellate Division, Second Department
Plaintiff’s “Zone of Danger” Claim Unsupported by Objective Medical Evidence
A “zone of danger” claim, generally a claim for causally-related emotional injury, does not necessarily require a physical injury, but it does require that the injury be serious, verifiable, and established by objective medical evidence, as must any claim of serious injury. 

Here, the infant plaintiff, Ryan, was apparently in the vehicle, thus in the “zone of danger,” at the time of the accident which resulted in the death of his father.  However, defendant submitted evidence that there was no objective medical evidence to support that Ryan suffered severe emotional distress or post-traumatic stress symptom as a result.  In opposition, the experts’ affidavits and evaluations were conclusory and speculative and failed to raise an issue of fact as to whether Ryan was suffering from a severe emotional injury.  Therefore, the trial court was affirmed and the complaint dismissed.

04/12/11         Damas v. Valdes
Appellate Division, Second Department
Issue of First Impression:  Prescribed Bed Rest to Deal With Preterm Labor Causally Related to Accident Meets Threshold Under 90/180-Day Category
Plaintiff was three months pregnant with twins when she was involved in the motor vehicle accident.  In her bills of particulars, she claimed she was confined to bed for approximately 15 weeks, to home for about 20 weeks, and unable to work for approximately four months.  At her deposition, she testified that she was treated for abdominal pain and contractions immediately after the accident by Dr. Ford.  On several other occasions, she was admitted to the hospital with contractions and other problems.  The twins were born prematurely at seven months.

Plaintiff moved for summary judgment and proffered a one-page affirmation from Dr. Ford in which Dr. Ford affirmed that plaintiff experienced pregnancy complications due to the accident and that she prescribed bed rest for the remainder of the pregnancy.  Several disability claim forms were attached to the affirmation.  Plaintiff also submitted her own affidavit in which she averred she was at home or in bed and unable to work upon advice of her physician for a period in excess of the required 90 days.

Defendants submitted separate opposing papers and cross-moved.  Valdez submitted an obstetrician’s affirmation stating that plaintiff’s “premature labor” was due to increased distention attributable to her multifetal pregnancy, not to the accident.  Defendants Exide and Gray submitted an unsworn, unaffirmed report which noted plaintiff’s medical history included two prior preterm labors, as well as a surgical procedure which can result in the shortened cervix seen on examination, also causing preterm labor.  The expert concluded that the preterm delivery was not causally related to the accident.

The court first determined, as a matter of first impression, that prescribed prolonged bed rest to deal with preterm labor causally related to a motor vehicle accident may qualify under the 90/180-day category.  The “loss of fetus” and the 90/180-day categories as distinct and the failure of an injury to qualify under one does not disqualify it under the other. 

However, in this case, the court found that plaintiff did not satisfy her burden because, “based on a side-by-side comparison,” Dr. Ford’s affirmation and the disability records attached were inconsistent as the records revealed plaintiff had first consulted six weeks prior, as well as several other times, prior to the accident for “this condition.”  However, plaintiff’s submission did not include any hospital records for the prior consultations, nor did Dr. Ford’s affirmation address the preterm labor condition for which plaintiff treated before the accident.  Therefore, Dr. Ford’s opinion as to causation was speculative.

With regard to defendants’ cross-motions, the court found that the affirmation of defendant Valdez’ expert failed because it did not specifically address plaintiff’s initial period of bed rest or the recommendation that she remain in bed for the duration of the pregnancy.  As for Exide’s and Gray’s expert’s report, it was unsworn and affirmed, and therefore inadmissible.  An affirmed copy submitted with their reply papers cannot cure the initial defect.  Therefore, the trial court properly denied both cross-motions.

However, the result on appeal was to also deny plaintiff’s motion.

04/12/11         Jilani v. Palmer
Appellate Division, Second Department
Plaintiff Raises Issue of Fact Sufficient to Rebut Opinion That Conditions Revealed on MRI Are Not Causally Related
Defendant met his burden because his expert reviewed plaintiff’s MRI films and opined that they revealed preexisting degenerative changes but no causally related abnormalities.  In opposition, however, plaintiff submitted the affidavit of his chiropractor who, based on examinations, review of the MRI films, electro-diagnostic studies and plaintiff’s medical history, opined that plaintiff suffered both a permanent consequential and significant limitation of use of the neck and lower back as a result of the accident.  This sufficiently rebutted defendant’s showing.

04/12/11         Han v. Tabet
Appellate Division, Second Department
Defendants Meet Burden But Plaintiff Raises Issue of Fact

Plaintiff claimed under the permanent loss of use, permanent consequential and significant limitation of use categories.  Although defendants met their prima facie burden, plaintiff raised a triable issue of fact sufficient to defeat the motion.

04/12/11         Aslam v. Hossain
Appellate Division, Second Department
Once Again, Defendant Fails to Meet Burden Where Experts Do Not Address 90/180-Day Claim Set Forth in Bill of Particulars
Defendant’s experts did not address the plaintiff’s 90/180-day claim which was set forth in his bill of particulars.  Therefore, defendant did not meet his burden and the court did not need to consider plaintiff’s opposing papers.


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


ARBITRATION
04/26/11         Buffalo Diagnostic Imaging v. Geico Ins. Co.
Arbitrator Kent Benziger, Erie County
Peer Review Opinion Partially Persuasive Upon Review of Cited Journal

The Applicant sought reimbursement for a March 9, 2010, cervical and lumbar spine MRI.  The insurer denied the diagnostic testing based upon the peer review of Jeffrey Perry, DO.  Dr. Perry concluded that the cervical spine MRI was not medically necessary as there was no evidence of muscle weakness or dermatomal sensory disturbances justifying the studies.  Dr. Perry cited to an article to support his conclusion (Health Plan Guidelines Related to the Clinical Use of Diagnostic Imaging Examinations, April 2003) which indicated that the MRI was not a screening study but was used for specific evaluation of a known disease.

The assigned arbitrator did not find Dr. Perry’s peer review persuasive with regard to the cervical spine.  The evidence did reveal motor loss since the accident with intermittent numbness in the arms.  Further, the MRI was positive and was ordered to determine the presence of a disc herniation.

Dr. Perry, with regard to the lumbar spine MRI, opined that the testing was not medically necessary and relied upon the same article.  The assigned arbitrator found Dr. Perry’s review persuasive with regard to this testing.  Importantly, the cited article was determined to be an authoritative source finding that generally the accepted practices require a progressive neurological deficit.  The evidence demonstrated that the assignor’s chief complaint was in the cervical area without radiculopathy or objective findings of neurological deficits.

04/26/11         Buffalo Diagnostic Imaging v. GEICO Ins. Co.
Arbitrator Kent Benziger, Erie County
Peer Review Opinion Not Persuasive as Authoritative Source Not Cited to Support Contentions of Lack of Medical Necessity

The Applicant sought reimbursement for a thoracic MRI conducted on February 25, 2010, after a little over a month of chiropractic care.

The insurer denied the diagnostic testing based upon the peer review of Kevin Portnoy, DC.  Mr. Portnoy found no positive orthopedic or neurological findings in the assignor’s medical records.  Also, there was no differential diagnosis provided to warrant referral or how this study would alter the course of treatment.  Further, Mr. Portnoy opined that the assignor sustained soft tissue injuries from the accident which would resolve itself.  Also, Mr. Portnoy, relying upon the FRCPC Vol. 47 No. 7 Sept. 2005 BC Medical Journal, opined that the use of MRIs should be guided by specific clinical signs and symptoms from an injury and not the fact an injury occurred.

The assigned arbitrator did not uphold the denial as the peer review referred to certain “standards” on when a study should be performed but did not support this statement with an authoritative source. 

04/22/11         Elite Medical Supply v. The Standard Fire Ins. Co.
Arbitrator Veronica K. O’Connor, Erie County
Peer Review Opinion Upheld When Careful Review of Letter of Medical Necessity Conducted

The Applicant sought reimbursement for an LSO brace prescribed to the assignor arising out of a July 24, 2010, accident.  The insurer denied the durable medical equipment based upon the peer review of Kevin Portnoy, DC.  Mr. Portnoy opined that to substantiate the necessity for such equipment there needs to be at least documentation of evaluation for the equipment, instructions for safe and effective use, and follow-up related to the response of the treatment.  The treating chiropractor’s notes were devoid of any indication as to why an LSO brace, which restricts movement, is needed when chiropractic care, which increases movement, is being provided.  In short, Mr. Portnoy opined that the LSO brace was contradictory to the therapy.

The assigned arbitrator upheld the denial determining that the Applicant did not establish that the LSO brace was medically necessary.  The letter of medical necessity for the equipment indicated it was prescribed to decrease pain and increase stability and function.

04/15/11         Applicant v. Progressive Cas. Ins. Co.
Arbitrator Veronica K. O’Connor, Erie County
Insurer Properly Invokes Intoxication Exclusion Without Any BAC Testing

The Applicant, eligible injured person, was involved in a May 19, 2010, accident and sought lost wages, rent, household expenses, and car payments.  The insurer denied the entire claim based upon the intoxication or impaired condition exclusion under the policy.

The Applicant did not appear for the arbitration.  The assigned arbitrator found that the evidence indicated the Applicant was operating the vehicle on the date of the accident.  The police report documented the Applicant’s vehicle was involved in a collision with a motorcycle.  The Applicant fled the scene on foot and was arrested later by the police.

The responding police officers appeared at the hearing and presented testimony.  The first responding officer indicated that while the Applicant’s vehicle was at the scene the Applicant had fled on foot.  The second officer arrived and was instructed to find the Applicant.  The second officer spotted the Applicant and when he approached her the officer could immediately smell alcohol on her person and breath.  He also observed that she could not walk a straight line; had bloodshot glassy eyes; and thick slurred speech.  The Applicant’s first words to the officer were “you are looking for me.”  The Applicant’s vehicle contained a bottle of vodka and she refused a breathalyzer. 

The Applicant was taken to the emergency room where the records note that she smelled of alcohol and recent ETOH use.

The Applicant was arrested and ticketed for failure to yield the right away to oncoming traffic when turning left, leaving the scene of an accident, and driving while intoxicated.

The assigned arbitrator determined that the insurer met it burden in demonstrating the exclusion applied as a driver’s refusal to submit to a breath test may be used as evidence of the driver’s consciousness of guilt.  The assigned arbitrator found sufficient evidence to establish that the Applicant was intoxicated and her intoxication was a contributing cause of the accident.

LITIGATION

04/06/11         All County, LLC a/a/o Christopher Amodeo v. Unitrin Advantage Ins. Co. 
Appellate Term, Second Department
Insurer Demonstrates Policy Condition to Appear for IMEs Violated

The insurer’s summary judgment motion based upon violation of a policy condition to appear for scheduled IMEs was properly granted.  The insurer submitted an affidavit from ACE, the scheduling company to conduct IMEs.  The affidavit sufficiently demonstrated that the IME notices were sent to plaintiff’s assignor in compliance with ACE’s standard office practices and procedures.  A second affidavit from the IME physician was submitted and established that the assignor failed to appear for scheduled IMEs.  Finally, the insurer established that the denials were timely issued in accordance with the insurer’s standard office practices and procedures.

The Court noted that 11 NYCRR §65-3.5(e) does not apply to an IME requiring a request to be based upon the application of objective standard so that there is specific objective justification supporting the use of the examination.

04/06/11         Crescent Radiology, PLLC a/a/o Spiros Arbiros v. American Transit Ins. Co.
Appellate Term, Second Department
Insurer Demonstrates Policy Condition to Appear for EUO Violated

The insurer’s cross-motion for summary judgment should have been granted as the insurer demonstrated violated of a policy condition through failure to appear for a scheduled EUO.  The insurer’s cross-motion was initially denied because it did not demonstrate the EUO was based upon the application of objective standards so that there is a specific objective justification for the use of the EUO in accordance with 11 NYCRR §65-3.5(e).  The court held that the insurer established that the EUO notices were properly issued and that the assignor failed to appear as well as issuance of a timely denial.  The papers submitted substantiated the basis for the EUO request and plaintiff never claimed to have responded in any way to the insurer’s request.  Thus the court would not hear of plaintiffs’ assertion of lack of a reasonable basis for the EUO request.

04/05/11         Flatlands Acupuncture, PC a/a/o Pedro Ramierz v. Fireman’s Fund Ins. Co.
Appellate Term, Second Department
Statute of Limitations Analysis When No Denial of Claim Issued

The insurer moved to dismiss the complaint based upon the statute of limitations.  The court held that some of the early claims were partially barred by the statute of limitations as the six year limitation applies to the claim.  The court’s reasoning began with the issue of when the claim accrued.  Here, the plaintiff claimed that no denial was ever issued for the service dates at issue in the complaint.  The court reasoned that the accrual date then would be the latest that a claim form was required to be submitted under the regulations, which in this case under the old regs was 180 days, plus the latest date that the insurer had to pay or deny the submitted claim, which is 30 days.  Thus, the accrual date was 210 days from the date of each service rendered. 

04/05/11         Urban Radiology PC a/a/o Madanna Ash v. Clarendon Nat’l Ins. Co.
Appellate Term, Second Department
Insurer’s Cross-Motion Denied on Failure to Appear for EUO Due to Lack of Description in Attorney Affidavit on Practice of Mailing EUO Notices

The insurer’s cross-motion for summary judgment was properly denied as the insurer did not demonstrate that the policy condition was violated for the assignor’s failure to appear for an EUO.  The motion papers contained an attorney affidavit from the firm retained by the insurer to conduct the EUO.  The affidavit did not indicate what the law firm’s standard office practices were to ensure that the verification request was properly addressed and mailed.


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


04/05/11         Auqui v. Seven Thirty Ltd. Partnership
Appellate Division, First Department
Ruling of Workers’ Compensation Board Does Not Preclude Plaintiff From Litigating Issues of Disability in the Related Personal Injury Action
Plaintiff sustained injury in 2003 when a sheet of plywood fell on him while in the course of his employment.  At a hearing before an Administrative Law Judge, it was determined that plaintiff’s work related disability ended as of January 24, 2006.  Upon appeal, a full panel of the Workers’ Compensation Board affirmed the ALJ’s ruling that plaintiff no longer suffered from a work-related disability. 

Defendants in the instant personal injury moved to preclude plaintiff, on collateral estoppel principles, from re-litigating the extent of his alleged disability.  The trial court ruled that having a full and fair opportunity to litigate the extent of his disability, plaintiff was estopped from revisiting the issue in the personal injury action. 

On appeal, however, the First Department reversed.  In refusing to preclude plaintiff from litigating his disability, the Court noted that while an administrative agency’s ruling can have preclusive effect upon an “issue of fact” there is no such protection for mixed issues of law and fact.  Here, the Court held that the Workers’ Compensation Board was not entitled to “preclusive effect because it involved ultimate issues of disability and proximate cause, which were committed to the Board’s discretion.” 

Justice Catterson, joined by Justice Sweeny, authored a lengthy dissent therein arguing that the presiding ALJ, and the Workers’ Compensation Board, both possessed the authority to make findings as the plaintiff’s disability status.  These considerations were based upon the ALJ’s review of competent medical evidence submitted by both sides, and the ALJ’s own observations of the plaintiff’s condition on the date of the hearing.  As the ALJ was only interpreting the plaintiff’s medical condition on the date of the hearing, the dissent noted that the decision was not imbued with a review of complex statutes and/or regulations which would have made it a mixed issue of law and fact.  Accordingly, the dissent argues that, having had a full and fair opportunity to litigate the extent of his disability, plaintiff is estopped from rearguing the issue in a subsequent proceeding.


CASSIE’S CAPITAL CONNECTION
Cassandra A. Kazukenus
[email protected]     


Draft Changes to Regulation 68 – No-Fault Regulation
The New York State Insurance Department has once again proposed some changes to Regulation 68 – No-Fault Regulations.  As some of you may recall Audrey provided a detailed analysis of the first proposed changes in the December 09 issues of coverage pointers.  On February 15, 2011, the Insurance Department amended the first proposed changes.  Many of the changes are not substantive but are intended to clarify the first proposed change.  I have broken this into three parts as there is so much information.  Today’s edition details the  proposed changes to the policies themselves.  Here is a link to the entire proposal if you would like to view the regulation changes in its entirety http://www.ins.state.ny.us/r68_link.htm
Mandatory PIP Endorsement
Scope of Coverage:

  • In the first proposal all-terrain vehicles (ATV) were included within the scope of this endorsement and tracked the scope of coverage afforded if the accident arises out of the use of a motorcycle.
    • This is still true except the ATV coverage does not track the coverage afforded to motorcycle use in the following provisions
      • An applicant no longer includes a person injured by an ATV while not occupying an ATV – this provision only applies to motorcycles now.  This reinstates the provision in effect today.
      • Exclusion (e) no longer excludes coverage for people occupying an ATV but still applies to motorcycles.  This reinstates the provision in effect today.
      • Exclusion (i) no longer excludes coverage the insured or their relatives when not occupying an ATV and struck by such.  Again, this change reinstates the provision in effect today.
      • Exclusion (g) intoxication/drug use exclusion now includes the exception to the exclusion for emergency services rendered while intoxicated or drug impaired.  The right to pursue for the benefits paid under the provision is also included.

A definitions section was added to the beginning of the statute.  The definition changes are essentially the same as what was drafted in the first proposal. 

  • The definition of calendar days was clarified in that holidays are those days set forth in the General Construction Law.
  • The definition of no-show is the same except the drafters added “except when adjourned by the insurer.”


Conditions to Coverage:

  • There is still a provision requiring compliance with the conditions of the policy before an action can be taken against the insurer.  However, the new sentence added in the first proposal (assignees failure to comply does not vitiate coverage to applicant) has been amended.  It now says an assignees failure will be deemed a breach of the policy conditions but will only implicate coverage for claims by the assignee.
  • Under Proof of Claim, the applicant or assignee must also provide documentary proof of necessity.  This provision also requires the insurer to make a second request within 10 calendar days of the applicant or assignee’s failure to comply with the proof of claim or IME requests.

Endorsements for Motorcycle and ATV

  • The motorcycle endorsement has the same changes as the Mandatory PIP endorsement except lost wages are not provided if the accident arose out of the use of an ATV.
  • The ATV endorsement has the same changes as the Mandatory PIP endorsement changes.

APIP

  • ATVs are removed once again from the APIP endorsement.

Reg. 68-B Rights and Liabilities of Self-Insurers
This provision has added two paragraphs under self-insurer obligations requiring first-party benefits for losses arising out of the use of motorcycles and ATVs.
There is also now coverage for lost wages for accidents arising out of the use of a motorcycle or ATV.
All of the other provisions mirror the Mandatory PIP Endorsement.


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


04/14/11         O’Hara v. National Union Fire Ins. Co. of Pittsburg PA
United States Court of Appeals for the Second Circuit – New York
What is the Appropriate Standard of Review?
Patricia O’Hara was an office administrator at ITT Flygt Corporation [“ITT”].  During her employment O’Hara participated in a voluntary disability insurance plan held by ITT and issued by National Union [“the Plan”].  Under the Plan, O’Hara was eligible to recover insurance proceeds if, as a result of an accidental injury, she was totally and permanently disabled and prevented from engaging in “each and every occupation or employment, for which reasonably qualify by reason of education, training or experience” [“qualified work”] within one year of the accident, and such disability continued for a year.

On March 15, 2001, in the course of her employment with ITT, O’Hara tripped and fell striking her head on the floor.  She was taken to the emergency where she complained of headaches.

O’Hara continued to work at ITT but shortly thereafter, by July, 2001, several complaints were alleged against O’Hara.  Coworkers complained that she was behaving unprofessionally and had difficulty maintaining satisfactory working relationships with colleagues.  O’Hara was warned by her supervisor that if she did not act in a professional manner she would be terminated.  O’Hara’s employment at ITT was terminated on June 6, 2002, because of her performance and dealings and interactions with employees. 

It was not until January 29, 2004, that O’Hara submitted a claim for disability benefits under the Plan.  At that point AIG Domestic Claims, Inc. [“AIG”] reviewed O’Hara’s medical records and workers’ compensation medical reports.  AIG also had a neurologist, Dr. Marzulo, examine O’Hara on September 12, 2005.  It was Dr. Marzulo’s opinion that O’Hara could not perform her pre-injury occupation and that her disability was present from the date of the accident.  Dr. Marzulo felt this was a “partial disability” and that “ a low emotional stress job duty which would not necessitate a multitude of recall actions or marked responsibility on the part of the claimant” could be initiated on a part time basis, up to 20 hours per week.

On January 6, 2006, AIG denied O’Hara’s claim for benefits, stating that “while there is proof that O’Hara was disabled from her own job, here is a lack of objective medical evidence showing disability from any employment.  AIG concluded that “there is neither proof of a generalized inability to work nor have any of O’Hara’s doctors actually opined that her disability is permanent, as required by the policy”.

O’Hara appealed the denial and again the claim was denied.  On March 18, 2008, O’Hara filed suit against National Union in the Western District of New York. In reviewing a summary judgment action filed by National Union the district court determined that because the Plan does not give the plan administrator discretionary authority to determine benefits it could review “all aspects of the administrator’s eligibility determination, including fact issues, de novo.”  The district court stated that it “possessed the authority to weigh competing physicians’ opinions itself, and to make findings of fact based on its own consideration of the evidence.”   In applying this standard of review the district court found that the denial of O’Hara’s application for disability benefits was based on sufficient evidence, because there was no credible proof that O’Hara suffered from a permanent and total disability which “commenced within one year of the date of the accident.”

In its analysis of the facts on appeal the Second Circuit determined that the threshold question was whether the district court correctly applied the well settled standard of review for summary judgment.  The Court concluded that it did not.

Although the district court correctly determined that because the Plan failed to explicitly vest the plan administrator with “discretionary authority to determine eligibility for benefits,” the administrator’s denial of benefits is not entitled to deference.  Therefore, the administrator’s determination could be reviewed de novo.  However, the Second Circuit determined that by applying a “sufficient  evidence” standard the district court was essentially applying a deferential rather than a de novo review. A conclusion that the administrator’s decision was based on “sufficient evidence” does not entitle National Union to summary judgment if there are issues of material fact in dispute.  The Court determined that the district court erred when it observed that its “authority to weigh competing physician opinions, and to make findings of fact based on its own consideration of evidence entitled it to set aside any evidence that would otherwise create a genuine issue of fact.

National Union argued that O’Hara could not be totally and permanently disabled from qualified work if she continued to work after the accident.  O’Hara reported to work until she was fired on June 2, 2002 – almost 15 months after her accident, but argues that she was disabled within 12 months of her accident. O’Hara presented medical evidence from her treating physicians that she was totally disabled from qualified work within one year of her March 15, 2001 fall.  The Court determined that a reasonable factfinder could weigh the physician’s opinion with other evidence of O’Hara’s condition, and could find that the opinion was credible and correct.  Consequently, the Court determined that there is a genuine dispute regarding whether O’Hara was totally and permanently disabled from qualified work within one year of her accident.  For essentially, the same reasons the court found that genuine issues of fact exist regarding whether O’Hara remained totally and permanently disabled from qualified work for at least one year starting at some time within the first year after her accident.

The district court’s decision was reversed and remanded for further proceedings.


JEN’S GEMS
Jennifer A. Ehman

[email protected]

04/15/11         City of New York v. Greenwich Ins. Co.
Supreme Court, New York County
Although Insurer Waited Over Four Months To Deny Coverage Based on Late Notice, Court Finds a Question of Fact Precluding Summary Judgment
On June 19, 2006, Maria Cabrera was at a premises owned by the City of New York when she tripped and fell as a result of an uneven raised surface between the elevator and the floor.  She alleged that the unevenness was caused by the elevator jerking up and down after the doors had opened.  Pursuant to a contract between the City and Temco Services Industries, Inc. (“Temco”), Temco was responsible for inspecting and maintaining the elevators at the premises.  Temco in turn subcontracted with Transel Elevator Inc. (“Transel”) to “regularly and systematically examine, adjust, clean and lubricate the elevators.”  In the Temco/Transel contract, Transel agreed to obtain a comprehensive general liability policy that named the City and Temco as additional insureds.  Transel complied with this requirement by obtaining CGL policy issued by defendant. 

On or about August 22, 2007, Ms. Cabrera commenced an action against the City and Temco.  Thereafter, the City and Temco tendered their defense and indemnity to defendant who denied coverage based on late notice.  This lawsuit resulted and defendant moved for summary judgment.

As support for its motion, defendant contended that the City was provided notice of claim on September 13, 2006, which was forwarded on to Temco in November 2006.  Defendant further asserted that Temco did not provide any notice of Ms. Cabrera’s claim until May 17, 2007, approximately six months later, via a tender letter.  While the letter made reference to the Temco/Transel contract, the contract, certificate of insurance and notice of claim were not enclosed.  Accordingly, defendant wrote back on or about June 21, 2007 asking for these documents as well as information regarding how and when Temco first learned of Ms. Cabrera’s claim.  On August 1, 2007, Temco’s counsel responded by providing a copy of the contract and certificate of insurance only.  On September 19, 2007, Temco’s counsel informed defendant that a lawsuit had been commenced, although defendants asserted that the suit papers were not included.  Suit papers were allegedly not received by defendant until October 1, 2007.  Finally, twenty-eight days later, on October 29, 2007, defendant disclaimed coverage to both the City and Temco based on late notice of claim. 

In reply, the City and Temco argued that defendant could not rely on its disclaimer as it was untimely.  In considering defendant’s motion and the cross-motion, the court held that, based on the record, there were issues of fact as to when defendant was first informed of the date in which the City and Temco first received notice of claim.  Accordingly, it denied both motions. 

03/31/11         Royal Housing, LLC v. Allegany Co-op Ins. Co.
City Court of Jamestown
City Court Has Jurisdiction to Determine Applicability of a Policy Exclusion in a First Party Claim Where the Amount at Issue Is Set
Plaintiff, Royal Housing, owned property that it rented out to tenants.  After discovering water damage at one of its properties, due to freezing and bursting of water pipes, it placed a claim under a landlord insurance policy issued by defendant.  The claim was denied pursuant to a policy exclusion pertaining to “vacant or unoccupied” residences.  Thereafter, plaintiff brought this action.

Plaintiff’s complaint alleged that it collected rent from tenants of this property from August 31, 2006 through November 2008.  In the months that followed, plaintiff attempted to collect rent on two separate dates.  Each time plaintiff when to the property the tenants did not answer the door.  Nevertheless, according to plaintiff’s complaint, there were “telltale” signs of occupancy.  It was only on January 2, 2009 that plaintiff allegedly learned that the tenants intended to voluntarily terminate their lease.  When plaintiff retook possession of the property, it discovered the water damage. 

The issue put before this court was whether it had subject matter jurisdiction over this claim.  CPLR 3001 confers jurisdiction over declaratory judgment actions exclusively on the Supreme Court since City Courts cannot grant equitable relief.  Nevertheless, plaintiff contended that as it was seeking a fixed amount of money, not declaratory judgment, City Court had jurisdiction.   

The court agreed with plaintiff determining that it had jurisdiction.  It explained that the contract of insurance was no different from any other contract.  While the City Court may have to review the contract of insurance as an incident to determining whether or not to award damages, according to the court, this does not compel the conclusion that the relief sought is essentially equitable. 

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

“RED FLAGS” OF COMP/COLLISION AND NO-FAULT FRAUD

Auto Comprehensive/Collision

  • Ignition or steering column lock was not defeated or broken.
  • Vehicle has been ‘clinically’ stripped.
  • Late model vehicle has no lien.
  • Title holder and insured are not the same.
  • Signs of VIN tag or Federal sticker tampering, removal or discrepancies.
  • The vehicle was used in another crime, fraud or theft, and then destroyed to cover up the crime or remove evidence.
  • Were tow trucks called to the scene by the police, or did they just “appear” at the scene?
  • Vehicle is stolen despite audible alarm systems, steering column lock and other anti-theft devices.
  • Does the claimant have a history of minor collected claims ($1,000-$2,500)?
  • Does claimant show no interest in actually recovering or restoring the vehicle?

 

No-Fault/PIP

  • Fraudulent incorporation and shell/false medical offices.
  • Dubious and inflated self-employment income claims
  • Tests allegedly performed by traveling/mobile diagnostic facilities.
  • Inflated and false requests for reimbursement for transportation, household services and the like.  Were services necessary or medically ordered?  Who is payment sought for?
  • Claim filed on last (or nearly last) day of a deadline or reporting period.
  • Delayed treatment and reporting.
  • Does the insured have other primary or available health insurance coverage?
  • “Bundling” a multitude of prior injuries and ailments into no-fault treatments.
  • Multiple days and time periods for wage or medical claims are

submitted all together (i.e., a “rush job”).

  • Claimant’s employer is a small or unknown business, or a personal d/b/a.
  • Claimant’s employer’s address is a post office box, mail drop or residence.
  • Wage documentation is provided by or through the claimant’s attorney.

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


4/21/11           Phoenix Insurance Company v. Rosen
Illinois Supreme Court
Whether a Provision Allowing Either Party to an Insurance Contract to Demand a Trial de novo Following Arbitration is Unenforceable When It Appears in an Underinsured-Motorists Policy
The Illinois Supreme Court held that such provisions are enforceable. The Illinois Supreme Court did not agree with the appellate court’s result stating that in the context of uninsured (as opposed to underinsured) motorist coverage, the legislature has required arbitration clauses, allowing smaller awards to be binding while allowing higher awards to be rejected. The statutes do not speak to arbitration in the context of underinsured-motorist coverage. The Court refused to find that the bargained-for “trial de novo” provision in this underinsured motorist coverage should be declared either unenforceable as unconscionable or invalid as contrary to public policy.
Submitted by: Submitted by: Meloney Perry (Meckler Bulger Tilson Marick & Pearson LLP)
4/20/11           Westfield Insurance Company v. Hunter
Ohio Supreme Court
Court Reviews Homeowner Policy Exclusion for Claims 'Arising Out Of' Non-Insured Property Owned by Insured
The Supreme Court of Ohio held that when an exclusion in a homeowners’ insurance policy bars coverage for claims “arising out of” premises that are owned by an insured person but are not identified in the policy as an insured location, the exclusion precludes coverage for premises-based liability claims such as claims that arise from the quality or condition of a non-listed premises, and also bars coverage for claims predicated upon an insured’s ownership of an unlisted premises on which an injury occurs.
Submitted by: Meloney Perry (Meckler Bulger Tilson Marick & Pearson LLP)
REPORTED DECISIONS
The United States Life Ins. Co. v. Grunhut

Schindel, Framan, Lipsius, Gardner & Rabinovich LLP, New
York (Ira S. Lipsius of counsel), for appellants.
Edison, McDowell & Hetherington LLP, Houston, TX (David
T. McDowell, of the Texas Bar, admitted pro hac vice, of
counsel), for respondent.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered September 29, 2009, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, with costs, and the motion granted. The Clerk is directed to enter judgment in defendants' favor dismissing the complaint.
By accepting premium payments for three months after commencing this action to rescind the insurance policies, and doing so apparently intentionally (to "protect" the insured pending a determination of the action), plaintiff waived its right to rescind the policies (Security Mut. Life Ins. Co. of N.Y. v Rodriguez, 65 AD3d 1, 7-11 [2009]).
Aslam v. Hossain


O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Ira
E. Goldstein of counsel), for appellant.
Anna Feldman, P.C., Astoria, N.Y., for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Sampson, J.), dated February 8, 2010, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
The Supreme Court correctly determined that the defendant failed to meet his 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 reports of the defendant's physicians submitted in support of the motion for summary judgment failed to address the plaintiff's claim, as set forth in his bill of particulars, that he sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary activities for not less than 90 of the 180 days immediately following the accident (see Reynolds v Wai Sang Leung, 78 AD3d 919; Udochi v H & S Car Rental Inc., 76 AD3d 1011; Strilcic v Paroly, 75 AD3d 542).
Since the defendant failed to establish his prima facie entitlement to judgment as a matter of law, it is unnecessary to determine whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Sainnoval v Sallick, 78 AD3d 922; Mondert v Iglesia De Dios Pentecostal Cristo Viene, Inc., 69 AD3d 590, 590; Coscia v 938 Trading Corp., 283 AD2d 538).
Han v. Tabet


Baker, McEvoy, Morrissey & Moskovits, P.C., New York,
N.Y. (Stacy R. Seldin of counsel), for appellants.
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 defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Nelson, J.), entered July 20, 2010, as denied those branches of their motion which were for summary judgment dismissing the complaint insofar as asserted by the plaintiff Young H. Ma to the extent that it alleged that he sustained a serious injury within the meaning of Insurance Law § 5102(d) under the categories of permanent loss of use of a body organ, member, function, or system, a permanent consequential limitation of use of a body organ or member, and a significant limitation of use of a body function or system.
ORDERED that the order is affirmed insofar as appealed from, with costs.
Contrary to the Supreme Court's holding, the defendants met their prima facie burden of establishing that the plaintiff Young H. Ma did not sustain a serious injury within the meaning of Insurance Law § 5102(d) by virtue of his having sustained a permanent loss of use of a body organ, member, function, or system, a permanent consequential limitation of use of a body organ or member, or a significant limitation of use of a body function or system (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). Nevertheless, the order must be affirmed insofar as appealed from because, in opposition, Ma raised a triable issue of fact (see Toure v Avis Rent A Car Sys., 98 NY2d at 353).
Damas v. Valdes

SEPARATE APPEALS by the defendant Romann Valdes and the defendants Raymond S. Gray and Exide Technologies, in an action to recover damages for personal injuries, from an order of the Supreme Court (Jack M. Battaglia, J.), dated June 2, 2009, and entered in Kings County, which granted the plaintiff's motion for summary judgment on the complaint, finding that she sustained a serious injury within the meaning of Insurance Law § 5102(d) under the 90/180-day category, and denied, as academic, their respective cross motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

Nancy L. Isserlis, Long Island City, N.Y. (Lawrence R. Miles
and Francis M. Cerniglia of counsel), for appellant Romann
Valdes.
Lawrence, Worden, Rainis & Bard, P.C., Melville, N.Y.
(Roger B. Lawrence of counsel), for
appellants Raymond S. Gray and
Exide Technologies.
Harmon, Linder & Rogowsky, New York, N.Y. (Mitchell
Dranow of counsel), for respondent.
OPINION & ORDER

DILLON, J.This appeal presents an issue of first impression in the appellate courts. We are asked to determine whether a pregnant plaintiff, who was prescribed prolonged bed rest to deal with preterm labor allegedly caused by an automobile accident, may obtain summary judgment under the 90/180-day category of the New York Insurance Law threshold. We hold that where there is proof that preterm labor is causally related to an automobile accident, and where a physician recommends bed rest, such bed rest does qualify the plaintiff for summary judgment if it meets the minimum time frame contemplated by Insurance Law § 5102(d) and if the defendant fails to raise a triable issue of fact in opposition. For reasons set forth below, we find that in this matter, the plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law on the issue of serious injury, as her submissions did not establish the causal connection between the automobile accident on the one hand, and the prescribed bed rest on the other.
I. Relevant Facts
On March 29, 2006, the plaintiff was a passenger in an automobile owned by the defendant Romann Valdes, which was involved in an accident with a second vehicle owned by the defendant Exide Technologies (hereinafter Exide) and operated by the defendant Raymond S. Gray. At the time of the occurrence, the plaintiff was three months pregnant and carrying twins. The plaintiff thereafter prematurely delivered her twins in the seventh month of gestation.
In her bills of particulars, dated August 23, 2007, and February 6, 2009, the plaintiff claimed that, as a result of the accident, she had been confined to bed for approximately 15 weeks, confined to home for approximately 20 weeks, and incapacitated from employment for four months. She alleged, as a basis of recovery, that she was disabled at least 90 of the 180 days following the accident.
The plaintiff testified at her deposition that, immediately after the accident, she felt abdominal pain and contractions. She was treated at the emergency room of Brookdale Hospital and was examined by Dr. Jacqueline Ford. Dr. Ford found, inter alia, the absence of placental abruption or vaginal bleeding. Dr. Ford initially prescribed one week of pelvic and physical rest. According to the plaintiff, she continued to experience contractions and was admitted to the hospital on April 5, 2006, for 24 hours, until the contractions ceased. On April 19, 2006, the plaintiff was treated for nausea, vomiting, and dehydration, and then released. On June 7, 2006, the plaintiff complained of cramps and was diagnosed with "preterm labor, twin gestation," for which she was again prescribed bed rest. The plaintiff's twins were born prematurely on July 31, 2006.
The plaintiff moved for summary judgment on the issue of serious injury on the ground that she was confined to bed and unable to engage in substantially all of her usual and customary activities for at least 90 of the 180 days following the accident (hereinafter the 90/180-days category). The plaintiff's motion was supported by a one-page affirmation of Dr. Ford, who opined that "[d]ue to the injuries sustained in the car accident on March 29, 2006, [the plaintiff] experienced pregnancy complications, and I prescribed her bed rest for the rest of her pregnancy for approximately six month[s]." Dr. Ford's affirmation was accompanied by disability claim forms which she executed on May 16, 2006, June 7, 2006, and July 10 2006, reflecting diagnoses in each instance of preterm labor and, in the first instance, spontaneous "threatened abortion." The plaintiff stated in a supporting affidavit that she remained at home or in bed, unable to work, upon the advice of her physician, for periods of time that totaled more than 90 of the 180 days immediately following the occurrence.
In separate submissions, Valdes, Exide, and Gray opposed the plaintiff's motion for summary judgment and cross-moved for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiff did not sustain a threshold injury under the 90/180-days category, permanent loss of use, permanent consequential limitation, and significant limitation categories of Insurance Law § 5102(d).
Regarding the 90/180-days category, Valdez proffered the affirmation of an obstetrician, Dr. Leonard Roberts, who examined the plaintiff and noted that she had increased distention of the uterine cavity attributable to her multifetal pregnancy, but no anatomic injury. Dr. Roberts opined that the plaintiff's "premature labor" and emergency cesarian section were due to the observed distention of the uterine cavity and bore no relation to the subject accident.
As to the same threshold category, Exide and Gray proffered an unsworn, unaffirmed report of Dr. Milton Haynes. Dr. Haynes noted that the plaintiff had a medical history that included two prior preterm labors and deliveries in 2001 and 2003, and a surgical conization procedure on her cervix in 2003 which can result in an incompetent and shortened cervix and preterm labor. Based on the plaintiff's history of preterm labor, the conization procedure, and the shortened cervix found by examination, Dr. Haynes concluded that the plaintiff's preterm delivery on July 31, 2006, was not causally related to the subject accident.
In the order appealed from dated June 2, 2009, the Supreme Court granted the plaintiff's motion for summary judgment on the issue of serious injury under the 90/180-days category of the Insurance Law and denied the defendants' respective cross motions for summary judgment dismissing the complaint insofar as asserted against them.
We modify and conclude that the plaintiff's motion for summary judgment on the issue of serious injury on the 90/180 days category of Insurance Law § 5104 and § 5102(d) should have been denied, as she failed to make a prima facie showing of entitlement to judgment as a matter of law.
II. The Plaintiff's Motion For Summary Judgment
Insurance Law § 5104 provides that there shall be no right of recovery for personal injuries arising out of negligence in the use or operation of a motor vehicle within the state, except in the case of serious injury or for basic economic loss (see Insurance Law § 5104). Serious injury is defined by condition-specific categories in Insurance Law § 5102(d), and includes, inter alia, a medically-determined injury or impairment of a nonpermanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment (see Toure v Avis Rent-A-Car Sys., 98 NY2d 345, 355-56; Gaddy v Eyler, 79 NY2d 955, 957 [there must be curtailment of usual activities to a great extent, rather than some slight curtailment]; Ellithorpe v Marion, 34 AD3d 1195, 1197).
Initially, we address the general question of whether a plaintiff's prolonged bed rest, upon the advice of a physician, to address preterm labor causally related to an automobile accident, may qualify as a "serious injury" under the 90/180-days category of Insurance Law § 5102(d). To date, no appellate case has specifically addressed the question.
The Comprehensive Motor Vehicle Insurance Reparations Act, commonly referred to as the No-Fault Law, as codified in article 51 of the Insurance Law, was enacted in 1973 primarily to ensure prompt compensation to auto accident victims without regard to fault, to reduce the burden on the courts, and to provide premium savings to New York motorists (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860). Insurance Law 5102(d), as amended in 1984 (see L 1984, ch 367, § 1, L 1984, ch 955, § 4) provided, for the first time, that "loss of a fetus" constitutes a serious injury for which a plaintiff may recover damages for noneconomic loss (see generally Brannan v Brownsell, 23 AD3d 1106, 1107; McKendry v Thornberry, 23 Misc 3d 707, 711-712; Doyle v Van Pelt, 189 Misc 2d 67, 70). Left unresolved by Insurance Law § 5102(d) and post-1984 case law is whether "loss of a fetus" represents the minimum injury that the legislature intended to require for the recovery of damages for pregnancy-related noneconomic loss in automobile actions in the state (see Damas v Valdes, 23 Misc 3d 1133[A]) or, as noted by the Supreme Court, whether the 1984 amendment to the no-fault law could be merely interpreted as reflecting a legislative intent to protect pregnancy (id., citing McKendry v Thornberry, 23 Misc 3d 707, 711).
Upon consideration of the issue, we hold that the "loss of fetus" category and the 90/180-days category of Insurance Law § 5102(d) are two separate, independent, and free-standing statutory bases by which a plaintiff may be eligible for damages for qualifying noneconomic loss sustained by the use or operation of motor vehicles. The various categories of "serious injury" as defined by Insurance Law § 5102(d) are read in the disjunctive, so that the failure of a plaintiff to qualify for damages under one category does not necessarily preclude a recovery for the same alleged injuries under another category (see Oberly v Bangs Ambulance, 271 AD2d 135, 137, affd 96 NY2d 295; Miller v Miller, 100 AD2d 577, 578; see also Glover v Capres Contr. Corp., 61 AD3d 549, 550). We hold, as a general matter, that a plaintiff's prolonged period of bed rest ordered by a treating physician as a means of dealing with diagnosed preterm labor causally related to an automobile accident may, upon the submission of appropriate proof, qualify for judgment as a matter of law in favor of the plaintiff under the definitional standard of the 90/180-days category of Insurance Law § 5102(d), even if the labor does not advance to the point of premature delivery or spontaneous abortion of the fetus.
A question presented on this appeal is whether the plaintiff's evidence submitted in support of her motion for summary judgment established her prima facie entitlement to judgment as a matter of law on the issue of serious injury under the 90/180-days category. We conclude that the plaintiff's submissions did not make a prima facie showing of entitlement to judgment as a matter of law. Under Insurance Law § 5102(d), an injury must be "medically determined" to qualify under the 90/180-days category (Galofaro v Wylie, 78 AD3d 652; see Sanz v MTA-Long Is. Bus, 46 AD3d 867), meaning that the condition must be substantiated by a physician (see Ryan v Xuda, 243 AD2d 457, 457-458; Schaefer v Pierce, 205 AD2d 521, 521-522; Traugott v Konig, 184 AD2d 765). Additionally, the condition must be causally related to the accident (see Elshaarawy v U-Haul Co. of Miss., 72 AD3d 878, 881; Ellithorpe v Marion, 34 AD3d at 1197; Lalli v Tamasi, 266 AD2d 266; Alladkani v Daily News, 262 AD2d 511 [miscarriage of fetus not shown to be proximately caused by accident]).
While the overwhelming bulk of summary judgment motions based upon the Insurance Law serious injury threshold are filed by defendants seeking the dismissal of complaints, nothing prevents plaintiffs from affirmatively seeking summary judgment on serious injury on the basis of their claimed serious injuries as supported by proper and adequate evidence. In such instances, as here, the plaintiff bears the initial burden of proving entitlement to judgment as a matter of law under the 90/180-days category (see Elshaarawy v U-Haul Co. of Miss., 72 AD3d at 800, 881; Ellithorpe v Marion, 34 AD3d at 1197; see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 559; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067; Autiello v Cummins, 66 AD3d 1072, 1073; McHugh v Marfoglia, 65 AD3d 828, 829; LaForte v Tiedemann, 41 AD3d 1191, 1192; Horton v Warden, 32 AD3d 570, 572; Boorman v Bowhers, 27 AD3d 1058, 1059; Hillman v Eick, 8 AD3d 989, 991). Only if the burden is met does it then shift to the opposing party to proffer evidence in admissible form raising a triable issue of fact (see Alvarez v Propsect Hosp., 68 NY2d 320, 324, Zuckerman v City of New York, 49 NY2d at 562; Friends of Animals v Associated Fur Mfrs., 46 NY2d at 1068; Autiello v Cummins, 66 AD3d at 1074; Horton v Warden, 32 AD3d at 572).
Here, based on a side-by-side comparison, Dr. Ford's affirmation attributing the plaintiff's preterm labor to the accident is inconsistent with the attached disability records executed by Dr. Ford. The disability record of May 16, 2006, which identifies the plaintiff's condition as "threatened preterm labor," states, inter alia, that the plaintiff first consulted Dr. Ford for "this condition" on February 14, 2006, which was approximately six weeks before the subject accident. The same report lists disability-related services as having been provided to the plaintiff on February 14, 2006, March 1, 2006, and March 8, 2006, all prior to the automobile accident of March 29, 2006. Similar information was repeated on the disability form executed on July 10, 2006. Despite these cryptic references to Dr. Ford's treatment of the plaintiff for "this condition" prior to the accident, the plaintiff's moving papers fail to include any hospital or medical charts or records for the consultations that occurred on February 14, 2006, March 1, 2006, and March 8, 2006. Moreover, Dr. Ford's affirmation, submitted in support of the plaintiff's motion for summary judgment, does not acknowledge or address the plaintiff's preterm labor condition for which she was apparently treated prior to the subject accident. The failure of Dr. Ford to reconcile her apparent pre-accident diagnosis of preterm labor with her affirmed opinion that the preterm labor was caused by the March 29, 2006, accident, renders her expert opinion in support of summary judgment speculative, conclusory, and insufficient to meet the plaintiff's prima facie burden of proof on causation (see Singh v City of New York, 71 AD3d 1121; Nicholson v Allen, 62 AD3d 766, 767; Zarate v McDonald, 31 AD3d 632, 633; Bennett v Genas, 27 AD3d 601; Giraldo v Mandanici, 24 AD3d 419, 420; Allyn v Hanley, 2 AD3d 470, 471; Lorthe v Adeyeye, 306 AD2d 252, 253; Ifrach v Neiman, 306 AD2d 380; Ginty v MacNamara, 300 AD2d 624, 625; Narducci v McRae, 298 AD2d 443, 444; Kallicharan v Sooknanan, 282 AD2d 573, 574; Waaland v Weiss, 228 AD2d 435).
Because the plaintiff did not meet her prima facie burden entitling her to judgment as a matter of law, we need not address the sufficiency of the papers submitted by the defendants in opposition (see Winegrad v New York Univ. Med. Ctr., 46 NY2d at 855; Kouyate v Chowdhury, 76 AD3d 547; Perez v Johnson, 72 AD3d 777, 778; Safer v Silbersweig, 70 AD3d 921, 922; Geba v Obermeyer, 38 AD3d 597; Larrieut v Gutterman, 37 AD3d 424; Agha v Alamo Rent A Car, 35 AD3d 639; Schacker v County of Orange, 33 AD3d 903, 904).
III. The Defendants' Cross Motions For Summary Judgment
Nevertheless, since the defendants affirmatively cross-moved for summary judgment dismissing the complaint, inter alia, insofar as it seeks damages for injuries alleged under the 90/180-days category, each set of cross motion papers must be examined to determine whether they met their own burden of proving prima facie entitlement to judgment as a matter of law in their favor.
The cross motion of Valdes relies, for his 90/180-days argument, upon the affirmed expert opinion of Dr. Roberts that the plaintiff's "premature labor and the emergency cesarian section of July 31, 2006, bears no relation to the [motor vehicle accident] of March 29, 2006." Dr. Roberts attributed the plaintiff's "premature labor and delivery" to increased distention of the uterus cavity common to multifetal pregnancies. However, as noted by the Supreme Court, it is unclear whether Dr. Roberts' reference to "premature" labor refers to the plaintiff's labor in month seven immediately preceding the cesarian delivery, or the "preterm" labor specifically alleged in the plaintiff's bills of particulars in month three that resulted in the plaintiff's bed rest initially and in the months that followed. By failing to specifically address the plaintiff's initial bed rest and the recommendation of Dr. Ford that the plaintiff remain in bed on a prolonged basis, we conclude that Dr. Roberts' affirmation fails to meet Valdes' burden of establishing prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against Valdes.
The Supreme Court also properly determined that the obstetric report of Dr. Haynes, as proffered by Exide and Gray with their initial cross motion papers, was unsworn and unaffirmed, and therefore not admissible (see Loadholt v New York City Tr. Auth., 12 AD3d 352; Pagano v Kingsbury, 182 AD2d 268, 271; Gleason v Huber, 188 AD2d 581, 582; Jacondino v Lovis, 186 AD2d 109; Marsh v Wolfson, 186 AD2d 115, 115-116). Although the record demonstrates that an affirmed copy of Dr. Haynes' report was later submitted with the reply of Exide and Gray in further support of their cross motion, the affirmed copy of the report must be rejected since it sought to remedy basic deficiencies in their original cross motion papers rather than respond to arguments contained in the plaintiff's opposition to the cross motion (see Henry v Peguero, 72 AD3d 600, 602; Batista v Santiago, 25 AD3d 326; Migdol v City of New York, 291 AD2d 201).
Inasmuch as triable issues of fact exist regarding whether the plaintiff was unable, as a result of the accident, to perform her usual and customary daily activities for at least 90 of the 180 days immediately following the accident, we need not reach those branches of the defendants' cross motions which were for summary judgment dismissing the complaint on other threshold injury grounds (see Kolios v Znack, 237 AD2d 333).
Accordingly the order is modified, on the law, by deleting the provision thereof granting the plaintiff's motion for summary judgment on the complaint, and substituting therefor a provision denying the motion; as so modified, the order is affirmed.
PRUDENTI, P.J., BALKIN, and CHAMBERS, JJ., concur.
ORDERED that the order is modified on the law, by deleting the provision thereof granting the plaintiff's motion for summary judgment on the complaint, and substituting therefor a provision denying the motion; as so modified, the order is affirmed, without costs or disbursements.
Jilani v. Palmer


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 (Grays, J.), dated March 18, 2010, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
On August 19, 2006, the plaintiff was operating a livery car on South Conduit Avenue in Queens County when he was involved in an accident with another vehicle owned and operated by the defendant. The plaintiff commenced this action to recover damages for personal injuries. The defendant joined issue and, thereafter, 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 Supreme Court granted the defendant's motion. We reverse.
The defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of his motion, the defendant relied, inter alia, on the affirmed medical report of Dr. Sheldon Feit, which described his radiology review of the plaintiff's case. Dr. Feit stated, among other things, that his review of the plaintiff's magnetic resonance imaging (hereinafter MRI) films relevant to the subject accident revealed preexisting degenerative changes. He further opined that there were no "abnormalities causally related to" the accident on August 19, 2006.
In opposition, however, the plaintiff raised a triable issue of fact. The plaintiff relied on, inter alia, the affidavit of Dr. David N. Green, a chiropractor. Dr. Green stated in his affidavit that the plaintiff sustained trauma as a result of the motor vehicle accident of August 19, 2006. Dr. Green observed that, according to the history provided by the plaintiff, he never injured his neck or back, either prior or subsequent to the date of the subject accident. Based on his physical examination of the plaintiff, his review of the MRI films, electro-diagnostic studies, and the plaintiff's medical history, medical records, and reports, Dr. Green concluded, "it is my opinion based on a reasonabl[e] degree of chiropractic certainty, that [the plaintiff] suffered a permanent consequential limitation of use of his neck and lower back as well as a significant limitation of use of those areas as a direct result of the motor vehicle accident of August 19, 2006." This was sufficient to rebut the defendant's prima facie showing and, thus, raise a triable issue of fact (see Fraser-Baptiste v New York City Tr. Auth., 81 AD3d 878; Harris v Boudart, 70 AD3d 643, 644; Sinfelt v Helm's Bros., Inc., 62 AD3d 983, 983-984; see also DiFilippo v Jones, 22 AD3d 788, 789).
Tower Insurance Company of New York v. Babylon Fish & Clam, Inc.


Law Office of Steven G. Fauth, LLC, New York (Suma Samuel
Thomas of counsel), for appellant.
Kujawski & Dellicarpini, Deer Park (Mark Kujawski of
counsel), for respondents.

Order, Supreme Court, New York County (Debra A. James, J.), entered June 9, 2010, which denied plaintiff insurer's motion for summary judgment declaring that the insurer is not obligated to defend or indemnify its insured in the underlying action, reversed, on the law, without costs, the motion granted, and it is so declared.

This is an insurance coverage dispute concerning whether plaintiff Tower must defend and indemnify its insured, defendant Babylon Fish & Clam, Inc. (Babylon), under an occurrence-based commercial general liability insurance policy. The underlying lawsuit is a wrongful death action brought by defendant Sandra Menken, individually and as executor of the estate of Michael J. Menken, arising out of an alleged food-poisoning incident at Babylon's restaurant on July 16, 2007. Tower alleges that Babylon forfeited its right to coverage under the policy by waiting nearly a year before reporting the incident to Tower, in violation of the policy condition that the insured give notice of a claim "as soon as is practicable." On or about June 26, 2008, almost one year after the incident, Babylon, through its broker, notified Tower of the incident by forwarding the underlying summons and complaint and a notice form. Tower disclaimed coverage by letter dated July 23, 2008, alleging that Babylon failed to give timely notice of the claim. Tower alleged that Babylon was aware of the occurrence giving rise to the underlying action on or about August 12, 2007, yet failed to notify Tower until June 27, 2008.

We agree with Tower that notice of the occurrence was untimely as a matter of law. Tower established that its insured, Babylon, failed to report the incident for nearly one year. In response, Babylon failed to demonstrate that a reasonably prudent person, upon learning of the incident, would have a good faith, objective basis for believing that litigation would not be commenced (see Ferreira v Mereda Realty Corp., 61 AD3d 463 [2009]). Having failed to do so, the insurer was entitled to summary judgment in its favor declaring that it had no duty to defend or indemnify Babylon.

Further, the record evidence shows that Babylon should have reasonably anticipated that a claim would be asserted. Mrs. Menken notified Babylon less than one month after the incident that her husband had become sick due to food he ate at the restaurant. This statement, whether or not true, should have reasonably alerted the insured that a claim was possible. On the following day, according to Melissa Laroque, Babylon's president, an inspector from the Suffolk County Department of Health Services came to inspect the restaurant based on a report that a patron had become ill as a result of eating clams. Laroque further admitted that the health inspector returned two days later, on August 15, 2007, at which time he informed her that the sick patron was the decedent, Michael Menken, and advised her of "some deficiencies" uncovered by his inspection.
The insured claims that it reasonably believed, based on the health inspector's alleged statements about the decedent's prior health condition and favorable inspection of the restaurant, that it bore no liability for the decedent's injuries and death. However, the relevant legal standard is "not whether the insured believes he will ultimately be found liable for the injury, but whether he has a reasonable basis for a belief that no claim will be asserted against him" (SSBSS Realty Corp. v Public Serv. Mut. Ins. Co., 253 AD2d 583, 584 [1998]).

All concur except Gonzalez, P.J., who concurs in a separate memorandum as follows:

GONZALEZ, P.J. (concurring)
I concur with the majority's result, granting plaintiff's motion for summary judgment declaring that it is not obligated to defend its insured, defendant Babylon, in the underlying litigation.
However, I would find that it was Babylon's failure to conduct any inquiry into the details of the alleged food poisoning after having been made aware of the patron's illness that requires this result. In Great Canal Realty Corp. v Seneca Ins. Co., Inc. (5 NY3d 742, 743-744 [2005]), the Court of Appeals stated that, while an insured's reasonable "good-faith belief of nonliability" may excuse a failure to give timely notice, "it may be relevant on the issue of reasonableness, whether and to what extent, the insured has inquired into the circumstances of the accident or occurrence" (internal quotation marks and citations omitted). The Court found that the insured in that case had "failed to raise a triable issue of fact as to whether its delay in giving notice was reasonably founded upon a good-faith belief of nonliability" (id. at 744).

In this case, in the week after Babylon received an oral complaint from the wife of a patron who alleged that her husband suffered food poisoning from a meal at its restaurant, the Suffolk County Department of Health Services conducted two inspections of the premises. Yet Babylon did not notify its insurer of the incident until approximately a year later, after it was sued by the wife of the patron, who had died four days after allegedly eating at the restaurant. Although it was incumbent upon Babylon to follow up on the patron's complaint to determine whether it could face liability for the patron's alleged food poisoning, it undertook no independent investigation in this regard. Thus, like the plaintiff in Great Canal Realty Corp., Babylon failed to raise an issue of fact as to the reasonableness of its claimed belief of nonliability.

Kranis v. Biederbeck


Basso & Associates, P.C., LaGrangeville, N.Y. (Bryan G.
Schneider of counsel), for appellant.
Kornfeld, Rew, Newman & Simeone, Suffern, N.Y. (Maurice
J. Recchia of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for negligence, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Sproat, J.), dated March 19, 2010, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the infant, Ryan Biederbeck, did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
"Although a causally-related emotional injury, alone or in combination with a physical injury, can constitute a serious injury'" within the meaning of Insurance Law § 5102(d) (Villeda v Cassas, 56 AD3d 762, 762, quoting Taranto v McCaffrey, 40 AD3d 626, 627), such injury must be serious and verifiable, and must also be established by objective medical evidence (see Bissonette v Compo, 307 AD2d 673, 674; see also Bovsun v Sanperi, 61 NY2d 219, 231-232; Krivit v Pitula, 79 AD3d 1432, 1432; Chapman v Capoccia, 283 AD2d 798).
Here, the defendant established her prima facie entitlement to judgment as a matter of law by demonstrating that the infant, Ryan Biederbeck (hereinafter the infant), did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Licari v Elliott, 57 NY2d 230; Bissonette v Compo, 307 AD2d at 674; cf. Small v Zelin, 152 AD2d 690, 691). The evidence submitted by the defendant in support of her motion established, prima facie, that there was no objective medical evidence to support the plaintiff's claim that the infant suffered from severe emotional distress or post-traumatic stress disorder as a result of the motor vehicle accident in which his father was killed. In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). The plaintiff's experts' affidavits and evaluation report were speculative and conclusory and did not raise a triable issue of fact as to the claim that the infant was suffering from a serious emotional injury (see e.g. Graziano v Cooling, 79 AD3d 803, 804-805).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court correctly granted the defendant's motion for summary judgment dismissing the complaint.
Castillo v. Collado


Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for appellants.
Laura Rosenberg & Associates, PLLC, New York (Ivan J.
Rodriguez of counsel), for respondent.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about October 26, 2010, which denied defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants established the absence of serious injury by submitting an affirmed report by an orthopedic surgeon who found, on physical examination, that the range of motion in plaintiff's left knee was normal and, on review of the MRI taken about three weeks after the accident, that there were no signs of recent trauma to the knee. Defendants also submitted an affirmed report by a radiologist who reviewed the MRI and concluded, based on the absence of evidence of current inflamation or recent trauma, that the tear she found in the medial meniscus was degenerative in origin (see Pommells v Perez, 4 NY3d 566, 580 [2005]; Tsamos v Diaz, 81 AD3d 546 [2011]). In opposition, plaintiff raised an issue of fact by submitting an affirmation by the orthopedic surgeon who performed the arthroscopic surgery on the left knee, in which he stated that plaintiff "is left with a significant permanent loss of use of the left leg," and explained the objective testing methods he employed that supported his conclusion that the injury was causally related to the accident. Plaintiff also submitted an affirmation by a radiologist who stated that he found no degenerative changes in the left knee (see Yuen v Arka Memory Cab Corp., 80 AD3d 481 [2011]). Further, plaintiff was only 21 at the time of the accident (see Malloy v Matute, 79 AD3d 584 [2010]).
Plaintiff also raised an issue of fact in opposition to defendants' prima facie showing as to his 90/180-day claim, by submitting his deposition testimony and affidavit setting forth the extent to which he was prevented from performing his usual activities, and an affirmation by his orthopedic surgeon, who provided the requisite objective medical evidence to support the
claim (see Gaddy v Eyler, 79 NY2d 955, 958 [1992]; Thompson v Abbasi, 15 AD3d 95, 100 [2005]; Nelson v Distant, 308 AD2d 338 [2003]).
We have considered defendants' remaining contentions and find them unavailing.
Torres v. Triboro Services, Inc.


Mark B. Rubin, Bronx (Sandra D. Janin of counsel), for
appellant.
Baker, McEvoy, Morrissey & Moskovitz, P.C., New York
(Stacy R. Seldin of counsel), for respondent.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered March 24, 2010, which, inter alia, in this action for personal injuries sustained in a motor vehicle accident, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that plaintiff did not suffer a "permanent consequential limitation of use of a body organ or function" or a "significant limitation of use of a body function or system" (Insurance Law § 5102[d]). Defendant submitted the affirmed reports of a radiologist, who reviewed the MRI films and found degenerative changes in the cervical and lumbar spines and left knee, and of an orthopedist, who concluded that the degenerative changes were consistent with plaintiff's age, occupation and obesity, and found full ranges of motion and negative straight-leg and McMurray tests based on his examination of plaintiff (see DeJesus v Paulino, 61 AD3d 605 [2009]).
In opposition, plaintiff presented the affirmation of his treating physician, who found limited ranges of motion, and positive straight-leg raising test and McMurray test, when he first treated plaintiff on the day of the accident. Upon examining plaintiff 2½ years later, and finding that he still exhibited limited ranges of motion and a positive McMurray sign, the physician concluded that the injuries were permanent in nature. Although plaintiff's medical evidence was sufficient to raise triable issues of fact as to whether plaintiff's claimed injuries were serious (see Byong Yol Yi v Canela, 70 AD3d 584, 585 [2010]), it failed to raise a triable issue of fact as to causation, given that plaintiff's physician failed to address the non-conclusory opinions of defendant's expert that the new conditions revealed in the 2007 MRI's were degenerative in nature (see Pommells v Perez, 4 NY3d 566, 580 [2005]; Valentin v Pomilla, 59 AD3d 184 [2009]).
The motion court also correctly granted defendant's motion for summary judgment with respect to the 90/180-day claim. Defendant met its prima facie burden by submitting plaintiff's verified bill of particulars stating that he was not confined to his bed or home in connection with the accident and that he was able to continue working from the date of the accident (see Lopez v. Abdul-Wahab, 67 AD3d 598 [2009]; Ortiz v Ash Leasing, Inc. 63 AD3d 556 [2009]). The statement in the affirmation of plaintiff's physician, that plaintiff was unable to perform most of his normal daily activities for more than 90 of the 180 days following the accident, was based on plaintiff's unsubstantiated claim that he could no longer perform the "heavy physical labor" associated with his job, and is insufficient to raise a triable issue of fact (see Guadalupe v Blondie Limo, Inc., 43 AD3d 669 [2007]).
Beatty v. Miah


Weiss & Rosenbloom, P.C., New York (Barry D. Weiss of
counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for respondents.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered March 16, 2010, which, insofar as appealed from as limited by the briefs, in this action for personal injuries sustained in a motor vehicle accident, granted the motion of defendants Mo Azher Miah and West Cab Corp., Inc., for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Defendants established their entitlement to judgment as a matter of law. Defendants submitted, inter alia, the affirmed reports of a neurologist, a radiologist and an orthopedist, who, based upon examinations of plaintiff and his medical records, all concluded that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's MRI scan, which evidenced a bulging disc, was taken nearly four years after the accident, and was too remote to be probative of his accident-related claim, especially since neither the radiologist nor plaintiff's doctor who treated him in 2008 offered any non-speculative opinion as to a causal connection between the bulging disc and the accident (see Pou v E & S Wholesale Meats, Inc., 68 AD3d 446 [2009]; Whisenant v Farazi, 67 AD3d 535 [2009]).
Plaintiff's claim based on an alleged inability to engage in substantially all of his daily activities for 90 of the first 180 days post-accident was refuted by his own testimony. Plaintiff testified that he missed only one day of work and was only confined to bed after work (see Pou at 447).
Auqui vSeven Thirty Limited Partnership


Law Offices of Annette G. Hasapidis, South Salem (Annette G.
Hasapidis of counsel), for appellants.
Fabiani Cohen & Hall, LLP, New York (Joseph J. Rava of
counsel), for respondents.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered October 7, 2009, which, insofar as appealed from, as limited by the briefs, granted defendants' motion to preclude plaintiffs from litigating the issue of plaintiff Jose Verdugo's accident-related disability beyond January 24, 2006, unanimously reversed, on the law, without costs, and the motion denied. Appeal from order, same court and Justice, entered on or about December 8, 2009, which, inter alia, upon granting reargument and renewal, adhered to the prior determination, unanimously dismissed, without costs, as academic.
The motion court erred in according collateral estoppel effect to the determination of the Workers' Compensation Law Judge that plaintiff's post-January 24, 2006 disability was not causally related to his December 24, 2003 accident. The determination that workers' compensation coverage would terminate as of a certain date for plaintiff's injuries (including head, neck and back injuries, and depression and post-traumatic stress disorder, which are not disputed, and which were caused when plaintiff was struck in the head by a falling sheet of plywood in the course of his employment) is not, nor could it be, a definitive determination as to whether plaintiff's documented and continuing injuries were proximately caused by defendants' actions. While factual issues necessarily decided in an administrative proceeding may have collateral estoppel effect, it is well settled that "an administrative agency's final conclusion, characterized as an ultimate fact or mixed question of law and fact, is not entitled to preclusive effect" (Akgul v Prime Time Transp., Inc., 293 AD2d 631, 633 [2002]; see Tounkara v Fernicola, 63 AD3d 648 [2009] [no identity of issues between proceeding before workers' compensation board, which involved determination of whether party was plaintiff's employer for purposes of workers' compensation coverage, and third-party action, which involved determination of whether party was plaintiff's employer for purposes of indemnification provision]). The agency's determination on ultimate facts, as opposed to mere evidentiary facts, is imbued with policy considerations as well as the agency's expertise (see Matter of Engel v Calgon Corp., 114 AD2d 108, 110 [1986], affd 69 NY2d 753 [1987]). Therefore, the Workers' Compensation Board's determination is not entitled to preclusive effect because it involved the ultimate issues of disability and proximate cause, which were committed to the Board's discretion. Indeed, the October 13, 2009 guardianship order that was the partial basis for plaintiffs' renewal motion raises an issue of fact as to the cause of plaintiff's ongoing disability sufficient to warrant denial of defendants' motion.
All concur except Sweeny and Catterson, JJ. who dissent in a memorandum by Catterson, J. as follows:

CATTERSON, J. (dissenting)
Because I believe that the duration of plaintiff's disability was an evidentiary determination fully and fairly litigated by him at the Workers' Compensation proceeding terminating his benefits, he should be precluded from relitigating the issue of continuing disability in this personal injury action. Furthermore, in my opinion, the uncontested appointment of a guardian for the plaintiff more than three years later does not raise a triable issue of fact as to when his work-related disability ended. Therefore, I respectfully dissent.
The plaintiff, a food service deliveryman, was injured on December 24, 2003 when a sheet of plywood allegedly fell from a building under construction owned by defendant Seven Thirty One Limited Partnership. Defendant Bovis Lend Lease LMB, Inc. was the construction manager, and defendant Northside Structure, Inc. was the concrete superstructure subcontractor. The plaintiff's claim for Workers' Compensation (hereinafter referred to as "WC") benefits was approved, and he was compensated for treatment of his head, neck, and back injuries, as well as post-traumatic stress disorder and depression. While receiving benefits, the plaintiff commenced this personal injury action in Supreme Court in 2004.
The following year, in December 2005, while this action was pending, the insurance carrier for the plaintiff's employer moved the WC Board to discontinue plaintiff's benefits on the grounds that he was no longer disabled from the accident. In the January 2006 WC proceeding, the Administrative Law Judge (hereinafter referred to as "ALJ") reviewed the evidence and expert testimony submitted by the plaintiff and the insurance carrier. The ALJ found that the plaintiff no longer suffered any disability as of January 24, 2006 and terminated his benefits. The plaintiff appealed, but on February 1, 2007, a full panel of the WC Board concluded that the plaintiff was no longer disabled as of January 24, 2006, and required no further treatment.
In April 2009, the defendants in the instant personal injury action moved to preclude the plaintiff from relitigating the duration of his work-related injury on the grounds that the issue was already fully litigated and decided in the WC administrative proceeding. While the motion was pending in Supreme Court, the plaintiff's attorney commenced a separate Mental Hygiene Law article 81 proceeding to appoint a guardian for the plaintiff. On October 7, 2009, Supreme Court granted the defendants' motion to preclude.
Based on uncontested evidence of incapacity, the plaintiff's sister-in-law and wife were appointed as co-guardians on October 13, 2009. The plaintiff then moved for leave to renew and/or reargue the defendants' motion in Supreme Court on the grounds that, inter alia, the guardianship order raised a triable issue of fact with regard to the plaintiff's ongoing work-related disability. By order and decision dated December 3, 2009, Supreme Court granted the plaintiff's motion, but nonetheless adhered to its earlier determination that the plaintiff was precluded from relitigating his ongoing disability.
On appeal, the plaintiff argues that Supreme Court erred because there is no identity of issues between the causation element in a WC determination and proximate cause in a personal injury claim. In addition, the plaintiff asserts that Supreme Court further erred because the appointment of a guardian raises a triable issue of fact with regard to the plaintiff's ongoing disability.
The defendants argue that the WC determination that the plaintiff's disability ended on January 24, 2006 was factual and identical to the issue in the personal injury action, and, further, that the plaintiff had a full and fair opportunity to litigate that question before the ALJ. Therefore, he should be precluded from relitigating whether his disability extended beyond that date. For the reasons set forth below, I agree with the defendants.
The doctrine of collateral estoppel is applicable where the issue in the current litigation is identical to a material issue decided in a prior proceeding, and the party to be precluded had a full and fair opportunity to litigate the issue in that proceeding. Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500-501, 478 N.Y.S.2d 823, 826-827, 467 N.E.2d 487, 490-491 (1984); Matter of Abady, 22 AD3d 71, 81, 800 N.Y.S.2d 651, 658 (1st Dept. 2005).
It is well settled that a final determination by a quasi-judicial administrative agency may be accorded preclusive effect. Ryan, 62 N.Y.2d at 499, 478 N.Y.S.2d at 825. The Workers' Compensation Board has been deemed to be such a quasi-judicial administrative agency. See e.g. Rigopolous v. American Museum of Natural History, 297 A.D.2d 728, 747 N.Y.S.2d 566 (2d Dept. 2002); Lee v. Jones, 230 A.D.2d 435, 659 N.Y.S.2d 549 (3d Dept. 1997), lv. denied, 91 N.Y.2d 802, 666 N.Y.S.2d 564, 689 N.E.2d 534 (1997); Matter of Maresco v. Rozzi, 162 A.D.2d 534, 556 N.Y.S.2d 731 (2d Dept. 1990).
Although an agency's ultimate conclusion of mixed law and fact is not entitled to preclusive effect, collateral estoppel may be applied to determinations of specific evidentiary facts essential to that conclusion. Matter of Engel v. Calgon Corp., 114 A.D.2d 108, 111, 498 N.Y.S.2d 877, 879 (3d Dept. 1986), aff'd, 69 N.Y.2d 753, 512 N.Y.S.2d 801, 505 N.E.2d 244 (1987), citing Hinchey v. Sellers, 7 N.Y.2d 287, 197 N.Y.S.2d 129, 165 N.E.2d 156 (1959); see e.g. Ryan, 62 N.Y.2d at 502, 487 N.Y.S.2d at 827 (while the ultimate fact of misconduct was not entitled to collateral estoppel effect, determinations of material factual issues by the ALJ in the plaintiff's unemployment claim precluded relitigation of those issues in his wrongful discharge action).
Here, the evidentiary fact necessarily determined in the WC proceeding was that the plaintiff was no longer disabled at all beyond January 24, 2006. The decision of the ALJ clearly indicates that the plaintiff's claim of continuing disability was rejected because he failed to present sufficient medical evidence to show any disability after that date. Observing that the plaintiff's cane appeared to be "merely a prop," the ALJ credited the defendants' orthopedic expert opinion that the plaintiff's test results were normal and necessarily rejected the testimony of the plaintiff's neurologist. Furthermore, the ALJ completely discounted the plaintiff's treating psychiatrist's opinion that the plaintiff suffered permanent psychiatric disability, noting that inconsistencies in the doctor's responses rendered his testimony not credible.
Determination of the duration of the plaintiff's work-related disability was material and the very point of the WC proceeding, and is the exact issue that the defendants seek to preclude the plaintiff from litigating in the personal injury action. Additionally, the plaintiff's representation by an attorney, presentation and cross-examination of expert testimony, and submission of medical reports, assured that he had a full and fair opportunity to litigate the issue.
In my opinion, the majority is mistaken in its characterization of the ALJ's determination as an ultimate fact involving disability and proximate cause. An agency's determination of an ultimate fact as opposed to a "pure or evidentiary fact[]" is based upon analysis of "unique, and often times complex, statutes and regulations which apply specifically to [that agency]." Engel, 114 A.D.2d at 110, 498 N.Y.S.2d at 878.
That is not the case here. There is no indication that the ALJ considered causation at all much less that the decision analyzed causation in the specific context of WC claims. The defendants did not contest whether the plaintiff's injuries were related to an on-the-job accident, or offer any proof that his claimed disability was caused by a prior non-work-related incident. The ALJ did not interpret complex statutes or regulations, but rather evaluated the credibility of each party's medical testimony to determine if the plaintiff was still disabled.
Nor is the duration of the plaintiff's disability an ultimate fact in the personal injury action. The length of time that a plaintiff is disabled is relevant to the quantum of damages, an evidentiary factual determination, not, as the plaintiff asserts, a mixed issue of law and fact involving proximate cause.
Moreover, the majority's reliance on Engel, Akgul, and Tounkara is entirely misplaced. The agency decisions at issue in these cases all deal with the classification of parties based upon statutory definitions. See Tounkara v. Fernicola, 63 AD3d 648, 650, 883 N.Y.S.2d 27, 29 (1st Dept. 2009); Akgul v. Prime Time Transp., 293 A.D.2d 631, 633, 741 N.Y.S.2d 553, 557 (2d Dept. 2002); Engel, 114 A.D.2d at 110-111, 498 N.Y.S.2d at 878-879 (the National Labor Relations Board's definition of the plaintiffs as employees did not preclude a finding that they were defined as sub-contractors by the Division of Human Rights). In Tounkara, the decision not to give collateral estoppel effect to a WC determination was also based on the fact that the third-party plaintiff to be precluded was not a party to the WC proceeding and therefore had no prior full and fair opportunity to litigate. Tounkara, 63 AD3d at 650, 883 N.Y.S.2d at 29. Here, there is a total identity of issues with regard to the factual determination of the duration of the plaintiff's disability, and this plaintiff had a full and fair opportunity to litigate at the WC proceeding.
Furthermore, the plaintiff's guardianship order does not raise a triable issue of fact with regard to the ALJ's determination, or have any bearing on the application of collateral estoppel in the personal injury action. The appointment of a guardian is a highly discretionary, flexible decision taking into account the individual needs of the incapacitated person, and his wishes and preferences. See N.Y. Mental Hygiene Law § 81.01. In the plaintiff's article 81 proceeding, the appointment of his wife and sister-in-law as guardians was unchallenged and fully supported by the plaintiff. The same psychiatrist that testified before the ALJ also testified in the guardianship proceeding; however, in the guardianship proceeding there was no evidence required to rebut the plaintiff's claimed incapacity or show that his incapacity more than three years later was unrelated to the accident. As such, a determination of incapacity based upon the same testimony that was discredited by the WC ALJ does not raise a triable issue of fact warranting denial of the defendant's motion.

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