Coverage Pointers - Volume XIII, No. 11

Dear Coverage Pointers Subscribers:
Our warmest personal greetings for the Thanksgiving holiday to all of our subscribers.  We hope you are celebrating the holidays with friends and family, close and extended, near and far, and we send the best wishes for the beginning of the holiday season.
Don’t forget – you can find our social media site, New York Insurance on LinkedIn, over 600 members strong.
Please see the announcement, below, for the 2010 Federation of Defense Counsel’s Litigation Management College and Graduate Program.
FDCC Insurance Industry Institute
I was delighted to see such a great turnout for the Federation of Defense & Corporate Counsel’s Insurance Industry Institute in New York City this past week.  Welcome to our new subscribers, several of whom joined our subscription list thereafter.
Red Alert – New Court of Appeals Decision on Serious Injury Threshold:
From Margo Lagueras, our Assistant Editor, and probably one of only a handful of people on the face of the Earth who reads and summarizes every serious injury threshold case decided by the New York appellate courts, we bring you a summary of the Wednesday’s Court of Appeals release of the Perl trilogy of decisions.  In a significant opinion that will change the face of threshold motions, the high court clarifies the content necessary in “contemporaneous” narrative medical reports. 
This, from Margo (with a detailed summary of the decision in the attached issue):
Dear Subscribers:

There Is No Requirement That Contemporaneous Reports Must Contain Quantitative Measurements

So states the Court of Appeals in another “serious injury” trilogy.

Perl v. Meher
Adler v. Bayer
Travis v. Batchi

In our February 18, 2011 edition, we noted that Perl, along with two other decisions, would form the next “serious injury” trilogy to be heard by the Court.  Now, and right in time for the holidays, we invite our Coverage Pointers friends to read the decision and our summary in the attached issue.  But first, and just as a refresher, here is what we previously commented, along with our original review of Perl:

While we anxiously await the reawakening of our representatives in Albany and their hopefully revitalized efforts to provide some specificity, which might in turn afford some clarity and consistency, with regard to the soft tissue injury categories of permanent consequential and/or significant limitation of use, our Court of Appeals appears ready to entertain yet another serious injury trilogy, which probably will come to be referred to, in shorthand, as Perl.

As you may recall, we reviewed the Second Department's decision. Perl v. Meher, 74 A.D.3d 930, in our June 25, 2010 issue of Coverage Pointers, at which time we noted the strenuous two-judge dissent and predicted that Perl would see the Court of Appeals.

It seems that Perl has two traveling companions: Adler, a Second Department neighbor (Adler v. Bayer, 77 A.D.3d 692), and Travis, a First Department resident (Travis v. Batchi, 75 A.D.3d 411). All three involve injuries alleged under the Siamese Twin "and/or" categories. All three were defense victories. Perl and Travis shared common defense counsel. Perl and Adler shared common plaintiffs' counsel…

The common thread in all three is the appellate courts' determination that the plaintiffs failed to support their claims under the permanent consequential and/or significant limitation categories because there was some deficiency either with the contemporaneous medical report, the recent medical reports, or both. We have emphasized the insistence of the courts in the importance of having both a contemporaneous and a recent examination to substantiate the duration and extent of any injury under these twin categories. Now, and if we take a stab at what we think is the issue the Court will address, we quote Judge Austin, the author of the Perl dissent:

“By ruling that the injured plaintiff, Joseph Perl (hereinafter the injured plaintiff), failed to strictly comply with a standard of medical proof which can be found nowhere in Insurance Law 5102(d), the majority bars a colorably meritorious claim from reaching a jury...

“The majority assumes that days after an accident, an injured plaintiff presents to his or her doctor for the purpose of litigation rather than treatment. Research reflects no case law which mandates that a treating physician records his or her findings of that initial examination in a particular manner. Rather, so long as the affirmation of the treating physician indicates that his or her contemporaneous testing revealed a measurable limitation of the injured plaintiff's range of motion, the threshold set forth in Insurance Law 5102(d) should be deemed to be satisfied.

“To hold a treating physician to a litigation standard of marking his or her chart at such an early stage effective turns away plaintiffs with arguably colorable claims who seek treatment with a physician who is more focused on providing care than preparing for litigation. This unfortunate result does little, if anything, to promote the legislative purpose of Insurance Law 5102(d) which was to "weed out frivolous claims." (internal citations omitted)

Judge Austin called for the evening out of the playing field, noting that the defense's experts' reports, being created when they are, are focused on litigation, while plaintiffs' treating doctors have different approaches to record keeping which may "convey the required information in a less than perfect way." Therefore, provided an expert's assessment contains objective medical support, the "qualitative assessment" of an injury's seriousness can, and it is suggested should, "be tested during cross-examination, challenged by another expert and weighed by the trier of fact."

It is our opinion that the issue the Court will consider is whether or not the judicially dictated standards of medical proof imposed up to now on the contemporaneously-generated reports of plaintiffs' treating physicians should be relaxed to allow for "a reading of the entirety of the physician's affirmation tendered by the injured plaintiff in opposition" to be sufficient to raise a triable issue of fact.

Our summary of the Perl decision, at the Appellate Division level, follows.  We suggest you focus on the dissenting opinion, summarized below, because it forms the basis for the Court of Appeals decision this week.

           
6/8/10              Perl v. Meher
Appellate Division, Second Department
Findings During Recent Examination Cannot "Be Stretched" to Remedy Deficiencies of Contemporaneous Examination: But, Read the 2-Judge Dissent
On appeal, the trial court is reversed and the defendants' motion is granted, over a 2-judge dissent which reflects some of the current hot issues.

First, the majority decision: Defendants' orthopedist gave a detailed explanation and observations in support of his conclusion that the plaintiff's range-of-motion restrictions were self-imposed and there were no objective findings of impairment. The court reiterated the standards both defendants and plaintiffs are held to in threshold serious injury motions: numerically quantified ROM with comparison to the norm, based on identified objective testing. In addition, plaintiffs must demonstrate limitations both in contemporaneous and recent examinations. The majority determined that the plaintiff's physician failed to identify the tests used, the numerical results, or provide any comparison with what would be normal range-of-motion during the examination 6 days after the accident. The examination 2 years later by the same physician quantified the restrictions based on identified objective tests and compared them with the norm, but this could not "be stretched" to remedy the deficiencies in the contemporaneous findings because, while the "norm" might be the same, the findings themselves, and the tests used, could be different from one exam to the other.

Having established entitlement to summary judgment, the burden shifted to the plaintiff to raise an issue of fact which here, plaintiff failed to do.

Plaintiff's physician's affirmation based on a qualitative assessment was not sufficient because, among other things, it did not identify the objective tests used during the contemporaneous examination. In addition, the court points out that the plaintiff did not raise the issue of qualitative assessment in his appellate submission.

The 2-judge dissent: The dissent criticizes the majority’s holding the plaintiff to a standard of medical proof that is not stated anywhere in § 5102(d) and thus bars a potentially meritorious claim. The dissent notes that the majority assumes that an injured person, who presents just days after an accident for treatment, does so already in anticipation of litigation. No case law dictates that an initial report must be recorded in a specific manner. "Rather, so long as the affirmation of the treating physician indicated that his or her contemporaneous testing revealed a measurable limitation of the injured plaintiff's range or motion, the threshold set forth in Insurance Law § 5102(d) should be deemed to be satisfied * * * To hold a treating physician to a litigation standard of marking his or her chart at such an early stage effectively turns away plaintiffs with arguably colorable claims who seek treatment with a physician who is more focused on providing care than preparing for litigation." In contrast, a defendant's expert sees an injured plaintiff solely for purposes of litigation. This puts a plaintiff at a disadvantage.

The dissent notes that in his affirmation, the plaintiff's physician stated that there were "numerically and objectively determined" ROM restrictions of the knees, cervical and lumbar spine and which were causally related to the accident since the plaintiff had no pre-existing similar symptoms. The affirmation also stated that these restrictions were significant and permanent. During the contemporaneous examination, it was noted that ROM of the cervical and lumbar spine was 60% of normal and knee extension was "decreased". The physician's recent examination detailed the tests, results and norms and the dissent found that the affirmation, read as a whole, should be deemed sufficient. The remedy, according to the dissent, is to test the qualitative assessment during cross-examination.
Read the issue attached to see the Court of Appeals decision.

Margo Lagueras
[email protected]

Program Announcement:
2012 Litigation Management College and Graduate Program

The eighteenth annual Litigation Management College and the ninth annual Graduate Program of the Litigation Management College are scheduled for June 10-14, 2011 at Emory University Conference Center in Atlanta, Georgia.  Our annual goal for enrollment is 75-100 students for the College and 25 students for the Graduate Program. 

The FDCC looks forward to continuing to provide claims professionals a sophisticated level of training offered by experts in negotiation, evaluation and litigation.  The Litigation Management College has earned an international reputation as the premier advanced litigation training course for claims professionals.  Utilizing a new fact pattern, the College offers an intensive four-day experience of workshops, based on a case study and participatory interactive educational experiences.  The curriculum is fast-paced and cutting-edge with a practical approach to litigation management.  The program provides a unique opportunity for claims professionals to explore, study and discuss issues of current interest.

The College is sponsored by the FDCC as a service to claims professionals, third-party administrators and self-insured corporate litigation managers working in the insurance industry or in corporate law and claim departments handling litigation matters.  The College is designed for claim and litigation management professionals with five to fifteen years claims or litigation management experience. 

The Graduate Program consists of an intensive 32-hour classroom and workshop curriculum intended to expand the litigation management, evaluation and negotiation skills learned in the College.  It builds upon the solid foundation provided by the College to further refine the students’ understanding of advanced insurance coverage issues, strategic litigation tactics and alternatives for resolution of disputes on favorable terms.  It allows students to gain additional experience and participation in application of their skills in a cost effective manner with any type of litigation challenge that may arise in their workloads. 

Students have included representatives from Acadia Insurance, Zurich North America, Harleysville Insurance, EMC Insurance, Axis Insurance, Meadowbrook Insurance Group, Dollar General Stores, Liberty Mutual Insurance, Hanover Insurance, Hartford Insurance, Mountain States Insurance, Dean Foods Company, Infinity Insurance, AIG, RSUI, General Star, Akzo Nobel, NGM Insurance, Guilford Specialty, IMT Insurance and Mitsui Sumitomo Insurance.

Every year, both the LMC and Graduate Programs receive rave reviews from students.  “Excellent, intensive, hands on/real practice exercises with high potential for mental retention.”  “The faculty is so knowledgeable and very willing to take the time to answer questions and assist in any way they can.”  “Great group of speakers.”  “This was the best seminar I have attended in 15 years.” 

The faculty of the College and the Graduate Program consists of numerous prominent attorneys and insurance industry executives, all of whom are members of the FDCC, and many of whom have devoted years of service in educating class after class of students.  The College also provides training from outside experts as a part of the experience.  These include:

• Audrey Nelson, Ph.D. of Nelson Communications in Boulder, Colorado, an internationally recognized trainer, keynote speaker, and consultant specializing in gender communication, conflict management and dealing with difficult people and communication skills;
• John Patrick Dolan, Esquire, a well-known attorney who is also a professional speaker on the classic principles of effective negotiation; and

 

The jury consulting firm of Tsongas Litigation Consulting uses its experience, methodology, audiovisual technology, and expert knowledge of communication to assist with witness preparation (including the claims professional) and provides insight into the use of mock juries.

The students attending the 2012 Litigation Management College and Graduate Program will have an excellent experience and take home skills which they can utilize in their everyday job performance.  A full description of the College and Graduate Program, as well as applications which can be downloaded, may be found on the FDCC website, www.thefederation.org.

One Hundred Years Ago:

As I looked out at the audience at the FDCC Insurance Institute, I couldn’t help but be impressed by the array of technology being used by those around the room.  Laptops, I-Pods, I-Pats, Mini’s, Blackberry’s, tablets of all denomination, dotted the room.  Let’s not forget where we were just a century ago:

Middletown (NY) Time-Press
November 25, 1911
Page 1

SUPERVISORS TO HAVE TYPEWRITER ALL THEIR OWN

Goshen, Nov. 24, (Special)—The Board of Supervisors [of Orange County, New York] convened at 10:30. On motion of Mr. Farreukoff. the clerk was authorized to purchase a typewriter for the use of the clerk of the board exclusively, and not to be used for any purposes other than for the board.

Steve’s Stuffing:

Greetings, and Happy Thanksgiving.  We're back in business with five honest to goodness decisions from the around the State this week.  For our property gurus out there, we've got another two year suit limitation case.  We also offer a review of a flood exclusion case as well. 

That said, may I suggest that the Fourth Department's decision in Mesler v. Podd, LLC is the most thought provoking case of this issue.  The Court goes out of its way to state that snow removal contracts fall within the protections afforded under GOL 5-322.1.  Recall that under Espinal and its progeny, a snow plow contractor generally owes no duty to the injured plaintiff.  Thus, for parking lot slip and fall cases, where the claim is almost always a direct negligence claim against an owner, how does one get summary judgment on an indemnity claim?  We'd love to hear your thoughts on this issue.  Feel free to shoot me an e-mail, or better yet join us over at New York Insurance on LinkedIn.  We'd love to see you there too.

Lastly, I want to say a big "THANK YOU" to the Buffalo Claims Association for permitting me to speak at their 20th Annual Education Day.  I spoke on handling insurance coverage cases, the additional insured conundrum and contractual indemnity issues.  As you know, we love to get out and speak...and we'll come to you.  If you’re interested in this topic, or any other thing that may come to mind, please do not hesitate to drop us a line.  Cheers!

Steve Peiper
[email protected]

One Hundred Years Ago Today – Most Beautiful Woman In America on Trial:

Syracuse Herald
November 25, 1911
Page 2

WOMAN SLAYER GRILLED BY LAWYER
Mrs. Patterson Matches Beauty and Wit Against Harsh Inquisitor

Denver, Col.:  Fighting desperately for her life against terrific odds, Gertrude Gibson Patterson today matched her pretty womanhood and. her sharp wits with big, strong, harsh-voiced Prosecutor Benson, cleverest criminal lawyer in the Middle West. It was a dramatic struggle, this struggle of the State to send Mrs. Patterson to the gallows for the murder of her husband, Charles A. Patterson.

Prosecutor Benson was merciless In his cross-examination. He ferreted to the very depths of the pretty prisoner's life. He did not overlook one misstep which she has made in her race through life.

In each question which he put to her there seemed to ring that cruel demand: "Mrs. Patterson, the State must have your life in expiation for the life of your husband, which you took."

Crime History: “Most Beautiful Woman in America” Slays Husband

On September 25 1911, Gertrude Gibson Patterson, dubbed "The Most Beautiful Woman in America," fatally shot her husband while taking a walk in the Richthofen Castle in Denver. Patterson fired four shots, two of which missed her husband, Charles, a former football player. The other two bullets struck him in the back.

Patterson's attorney claimed shots in the back were proof of self-defense: The wife-beating husband was fleeing after he realized that his fists were no match for Gertrude's pistol, he argued.

The 12 male jurors found Patterson not guilty. Four of them later visited Gertrude at her hotel. One brought flowers.

A "Trial of the Century" featuring a lovely but "fallen" woman, Gertrude Gibson Patterson, as defendant occurred in Denver in 1911. Newspapers at the time called her "The Most Beautiful Woman in America."

Gertrude was reportedly a small-town girl who sortied to Chicago and eked out a starveling existence as a seamstress or shop girl before being saved from poverty by a wealthy "sugar daddy." Gertrude's patron was Chicago businessman Emil Strouss, a bachelor who paid for an expensive education for Gertrude in Paris and wanted to marry her. She accepted his generosity but finally decided to marry for love — choosing a poor but handsome former football player, Charles Patterson.

Apparently, Patterson ended up failing in business and Gertrude continued to consort with Strouss.  The district attorney called her a vile vampire who used her beauty to enslave and destroy, and who should be hanged by the neck until dead for the crime of shooting her lawfully wedded husband, the saintly and consumptive Charles Patterson.

Reviewing the evidence, which included the fact that Gertrude had shot Charles in the back — twice — the all-male jury did the honorable thing:

Not guilty by reason of self-defense.

At least four of the male jurors visited Gertrude in her hotel room after the trial. The one who brought flowers, seemed especially eager to get into Gertrude's "good graces."

After the verdict, Patterson’s mother was quoted in the newspaper as saying: I didn’t come here for revenge. I came to see justice done, but this brand of justice is a disgrace to Denver."

Following her acquittal, Gertrude and her new husband took a European honeymoon, but there are some reports that she died, under an assumed name, on the Titanic. Other reports indicate that she led the rest of her life under an assumed name with Strouss.

And Thanks to John Alt …

A special thanks to one of our loyal readers for sending us this tidbit published in the Penske Honda newsletter, as one of Fifty Amazing (But Useless) Facts:

The sentence "Buffalo buffalo Buffalo buffalo buffalo buffalo Buffalo buffalo" is grammatically correct. It utilizes the three meanings of the word “buffalo” – the city, the animal and the verb “to bully.” In the most simplified terms, the sentence means, "New York bison whom other New York bison bully, themselves bully New York bison.”

In This Week’s Coverage Pointers:

 

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

• Liability Policy Rescinded for Misrepresentations
• Slip and Fall on Oil, a Day After Oil Was Delivered, Does Not Engage Auto Coverage

 

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

• There Is No Requirement That Contemporaneous Reports Must Contain Quantitative Measurements

 

APPELLATE DEPARTMENTS

• Finding of ROM Limitation a Year After Findings of “Active Mobility With No Pain” Does Not Support Permanent Injury Claim
• Plaintiff’s Failure to Submit Medical Evidence of Either Contemporaneous or Recent ROM Testing Defeats His Claims
• Plaintiff’s Testimony That She Underwent Treatment Is Not Considered Where There Is no Evidence in the Record
• MRIs Revealing Degenerative Changes and Absence of Disc Herniations or Bulges Establish Prima Facie Lack of Causation
• Bill of Particulars and Deposition Testimony Defeat a 90/180-Day Claim
• Deposition Testimony Can Defeat the 90/180-Day Claim While Lack of Recent Examination Findings Will Undo Claims Under the Soft Tissue Categories
• Plaintiff’s Default Is Vacated Upon Showing of Reasonable Excuse and Potentially Meritorious Defense to Motion
• Ignoring 90/180-Day Claim Set Forth in Bill of Particulars Is Fatal to Summary Judgment
• Again, Ignoring the Bill of Particulars Guarantees a Loss
• 90/180-Day Claim Only Requires Examination Relatively Soon After Accident
• Limitations Caused by Prior Accident vs Exacerbations Caused by Subject Accident Must Be Differentiated to Prevail on Motion
• Does the Detection of Cervical Spasms Through Palpation Constitute Medically Objective Evidence?

 

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

• IME Report to Deny Durable Medical Equipment More Persuasive When Compared to Checklist Medical Necessity Letter
• Alleged Fall While Exiting Bus Not Use and Operation

 

LITIGATION

• Summary Judgment Denied Where Sole Issue Is Whether There Was Timely Denial of Claim
• Failure to Rebut Insurer’s Showing Results in Insurer Obtaining Summary Judgment
• Insurer Demonstrates Policy Violation for Failure to Attend IMEs
• Flawed Affidavit from Billing Company Leads to Denial of Summary Judgment

 

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

Property

• Two Year Suit Limitation Policy Bars Plaintiff’s Suit
• Unambiguous Wording of the “Flood” Exclusion Applied; No Coverage as a Result

 

Potpourri

• Plaintiff’s Own Reckless Behavior Dooms His Resulting Personal Injury Claim
• Defendant Fails to Establish It is In the Business of Renting Cars; No Graves Amendment Protection as a Result
• Snow Plow Contract Gets Section 5-322.1 Protection

 

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

• New Regulations for Underwriting of Large Commercial Insureds

 

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

• When Does 29 U.S.C. §1144(a) Pre-empt State Law Claims?

 

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

• Underlying Plaintiffs Permitted to Intervene In Declaratory Judgment Action Commenced by Excess Insurer Against Primary Carrier
• Evidence of Oral Contract Results in Additional Insured Coverage for General Contractor
• Where the Policy Only Paid the Sales Price for Damaged Stock Manufactured by the Insured, the Court Found a Question of Fact as to the Value of Component Parts Produced in China by Related Entities
• Court Rejects Argument Made by Additional Insured that the Prejudice Rule Should Apply to a Policy Issued Prior to January 2009
• What Came First, the Chicken or the Egg? Or the Need to Repair the Allegedly Out-of-Compliance Electrical and Gas Systems, or the Fire?
• A Motion to Renew Is Not an Opportunity to Fix Old Mistakes

 

EARL’S PEARLS
Earl K. Cantwell
[email protected]
WE WON’T KEEP THE TAIL LIGHT ON FOR YOU

 

 

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]

ASSOCIATE EDITOR
Audrey A. Seeley
[email protected]

ASSISTANT EDITOR
Margo M. Lagueras
[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
Earl’s Pearls
Across Borders

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

11/23/11         Interboro Insurance Company v. Fatmir
Appellate Division, Second Department
Liability Policy Revoked for Misrepresentations
To establish the right to rescind an insurance policy, an insurer must show that its insured made a material misrepresentation of fact when he or she secured the policy.  That is, the insurer must demonstrate that it would not have issued the policy if it knew the truth.  To establish that, the carrier must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application..

Here, the plaintiff insurance company demonstrated that its insured made misrepresentations in his application for homeowner's insurance, and that it would not have issued the subject policy had the insured disclosed that he did not reside in the subject premises because dwellings that are not owner occupied are deemed an unacceptable risk under its underwriting guidelines. Whether the carrier disclaimed timely is of no moment because the policy would not cover this loss had the misrepresentations not been made.

11/15/11         Progressive Northeastern Ins. Co. v. Penn-Star Ins. Co.
Appellate Division, First Department
Slip and Fall on Oil, a Day After Oil Was Delivered, Does Not Engage Auto Coverage
This was a declaratory judgment action involving an individual who slipped and fell in a boiler room, on oil, a day after the insured’s delivery truck delivered oil to the building.  Penn argued that at the general automobile policy issued to the insured by plaintiff should provide coverage because an insured vehicle delivered the oil.

The products-completed operation hazard exclusion is implicated as the slip-and-fall accident occurred one day after the insured made the oil delivery. Likewise the auto exclusion in the Penn CGL policy was not applicable.

 

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

COURT OF APPEALS

11/22/11         Perl v. Meher
There Is No Requirement That Contemporaneous Reports Must Contain Quantitative Measurements
Results:  In Perl and Adler the appellate decisions granting summary judgment to the defendants are reversed.  In Travis it is affirmed because the Court finds no evidence of serious injury in the record.

The Court agrees with the two-judge dissent in Perl and, quoting its decision in Toure, states:

“In order to prove the extent or degree of physical limitation, an expert’s designation of a numeric percentage of a plaintiff’s loss of range of motion can be used to substantiate a claim of serious injury … An expert’s qualitative assessment of a plaintiff’s condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff’s limitations to the normal function, purpose and use of the affected body organ, member, function or system.”

Both Perl and Adler relied on the testimony of the same medical expert, Dr. Bleicher.  Although the Court specifically notes that it is debatable whether the expert’s observations during the initial examinations had an “objective basis” or simply recorded the patients’ subjective complaints, the Court makes clear that “[w]e need not decide here whether Bleicher’s testimony would furnish legally sufficient proof of serious injury under the “qualitative” prong of Toure.”  It finds Dr. Bleicher’s later, numerical measurements sufficient to meet the “quantitative” prong of Toure.

The Court further agrees with the Perl dissent that, although the “quantitative” findings were not contemporaneously made, Toure did not impose any such requirement “and we see no justification for it.”  “There is nothing obviously wrong or illogical about following the practice that Bleicher followed here – observing and recording a patient’s symptoms in qualitative terms shortly after the accident, and later doing more specific, quantitative measurements in preparation for litigation.” 

Thus, the Court holds:

“We agree with the Appellate Division dissenters in Perl that a rule requiring “contemporaneous” numerical measurements of range of motion could have perverse results.  Potential plaintiffs should not be penalized for failing to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation.  A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries.  We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery.

Note:  It appears that, going forward, the issue will be whether or not the qualitative assessments in the contemporaneous report(s) “furnish legally sufficient proof of serious injury” or merely record “the patients’ subjective complaints.”

APPELLATE DEPARTMENTS

11/22/11         Diakite v. Soderstrom
Appellate Division, First Department
Finding of ROM Limitation a Year After Findings of “Active Mobility With No Pain” Does Not Support Permanent Injury Claim
Plaintiff claimed permanent injury of his left shoulder.  Defendants’ experts found that he had active mobility of the left shoulder and that he had recovered from the accident with no disability.  Moreover, a year earlier plaintiff’s physician had found that plaintiff had active mobility with no pain.  No explanation was given for the physician’s conflicting recent report noting range-of-motion limitations.  In addition, the limitations noted were insufficient to qualify as significant.

11/17/11         Wetzel v. Santana
Appellate Division, First Department
Plaintiff’s Failure to Submit Medical Evidence of Either Contemporaneous or Recent ROM Testing Defeats His Claims
Defendants’ examining orthopedist found plaintiff had normal range-of-motion in his cervical spine and that his lumbar limitations were age related.  Plaintiff, in opposition, did not submit any competent medical evidence of either contemporaneous or recent range-of-motion testing and therefore failed to demonstrate causality between the accident and his alleged injuries.  In addition, although an MRI revealed herniated cervical discs, it was taken more than two years after the accident and therefore also did not support plaintiff’s claims.

11/17/11         Britton v. Villa Auto Corp.
Appellate Division, First Department
Plaintiff’s Testimony That She Underwent Treatment Is Not Considered Where There is no Evidence in the Record
Plaintiff, in essence, offered no opposition to defendants’ motion.  She failed to explain why she did not pursue any treatment for almost three years after a brief two-month treatment period.  Her deposition testimony established that she was confined to home or bed for loss than one month following the accident.  Furthermore, she testified that she underwent physical therapy for six months starting the week after the accident and was forced to stop because no-fault would not pay her bills, but there were no treatment notes of reports in the record confirming such treatment.  In fact, her expert’s records suggest that if she did go to therapy, she went for less than six weeks.  Because plaintiff failed to meet threshold, summary judgment was granted even to the defendant that did not appeal the trial court’s denial.

11/17/11         Lavali v. Lavali
Appellate Division, First Department
MRIs Revealing Degenerative Changes and Absence of Disc Herniations or Bulges Establish Prima Facie Lack of Causation
Defendants’ orthopedist and neurologist examined plaintiff over three years after the accident and reported full range-or-motion in the cervical and lumbar spine and right shoulder.  The affirmed MRI reports of two radiologists, which noted mild degenerative changes but no disc herniations or bulges, established prima facie lack of causation. 

In opposition, however, plaintiff did raise a triable issue of fact through her chiropractor’s affidavit, which set forth contemporaneous and recent tests performed and the observation of spasms, and affirmed medical reports from her neurologist and physiatrists.  Based on the previously asymptomatic plaintiff’s physical examination performed days after the accident, and a review of her medical records which acknowledged the mild degeneration, plaintiff’s expert concluded that her injuries were caused by the accident.

11/17/11         Duran v. Jeong Hoy
Appellate Division, First Department
Bill of Particulars and Deposition Testimony Defeat a 90/180-Day Claim
Defendants’ expert orthopedist’s and neurologist’s reports specified the tests used to arrive at the findings of normal range-of-motion supporting their conclusion that the alleged injuries had resolved.  However, in opposition, plaintiff raised a triable issue of fact with the submission of his chiropractor’s sworn report which set forth the objective tests performed both contemporaneously after the accident and recently, and the conclusion that cervical limitations persisted.  Plaintiff’s affirmed MRI report additionally noted disc herniations in the cervical spine and the affirmed report of plaintiff’s neurologist confirmed the range-of-motion restrictions.

With regard to plaintiff’s 90/180-day claim, however, on appeal the court found that the claim should have been dismissed as plaintiff’s bill of particulars and deposition testimony established that he was only confined to home or bed for a few weeks following the accident.

11/15/11         Valera v. Singh
Appellate Division, Second Department
Deposition Testimony Can Defeat the 90/180-Day Claim While Lack of Recent Examination Findings Will Undo Claims Under the Soft Tissue Categories
Here plaintiffs’, Gabriel and Ani Valera, claims were all dismissed and the dismissal affirmed on appeal.  First, Gabriel testified at his deposition that he only missed one or two days of work and Ani testified that she missed none.  Then, neither proffered any objective medical findings from a recent examination.  As such, their claims under the permanent, permanent consequential and significant limitation of use categories were also properly dismissed.

11/15/11         Swensen v. MV Transportation Inc.
Appellate Division, Second Department
Plaintiff’s Default Is Vacated Upon Showing of Reasonable Excuse and Potentially Meritorious Defense to Motion
The trial court accepted the excuse of law office failure and vacated plaintiff’s default based on plaintiff’s counsel’s “detailed and credible” explanation, which included acts of deception and misconduct by the former attorney on the case.  In showing a potentially meritorious defense to the defendants’ motion, plaintiff relied, in part, on the defendants’ own examining neurologist who examined plaintiff four years after the accident and found significant range-of-motion limitations in the cervical and lumbar spine.  Although the neurologist opined that the limitations were self-imposed, because he did not support that opinion with any objective medical evidence, that opinion was merely speculative.

11/15/11         Stewart v. Perez
Appellate Division, Second Department
Ignoring 90/180-Day Claim Set Forth in Bill of Particulars Is Fatal to Summary Judgment
In his bill of particulars, plaintiff claimed injury under the 90/180-day category.  Defendants’ motion papers did not, however, address that claim, and their examining doctors did not relate any of their findings to that category for the time period immediately following the accident.  As defendants failed to meet their burden, it was not necessary to consider plaintiff’s opposing papers and summary judgment should not have been granted.

11/15/11         Nour v. Klein
Appellate Division, Second Department
Again, Ignoring the Bill of Particulars Guarantees a Loss
Different defendant, same mistake, same result: a 90/180-day claim in the bill of particulars not addressed in defendant’s motion papers is a guaranteed loss.

11/15/11         Kapeleris v. Riordan
Appellate Division, Second Department
90/180-Day Claim Only Requires Examination Relatively Soon After Accident
Plaintiff set forth her claim under the 90/180-day category in her bill of particulars and deposition.  She then moved for summary judgment, meeting her burden through the submission of her own affidavit and the affirmation of her treating neurologist who examined her one and a half months after the accident, reviewed MRIs of her cervical and lumbar spine taken just days after the accident, and concluded that she sustained a medically determined injury under the 90/180-day category.  This is sufficient and defendant did not rebut plaintiff’s showing.  Defendant’s radiologist did not examine plaintiff and based his findings exclusively on X-rays and CT scans taken six months after the accident.  He further failed to relate those findings to the 90/180-day period.

11/15/11         Edouazin v. Champlain
Appellate Division, Second Department
Limitations Caused by Prior Accident vs. Exacerbations Caused by Subject Accident Must Be Differentiated to Prevail on Motion
Plaintiff appealed from motions and cross motions and, on appeal, the court denies the serious injury branches of the motions and cross motions and remits the alternative branches of plaintiff’s and defendants’ motions for a determination of the issue of liability. 

In his bill of particulars, plaintiff alleged exacerbations of pre-existing injuries to the cervical and lumbar spine.  Defendants’ radiologist opined that the pathology revealed in MRI films was degenerative and unrelated to the accident.  However, defendants’ neurologist examined plaintiff three years after the accident and found significant cervical and lumbar limitations, and defendants did not show that these limitations were the result of a prior accident rather than exacerbations caused by the subject accident as alleged by plaintiff.

11/10/11         Rissew v. Smith
Appellate Division, Fourth Department
Does the Detection of Cervical Spasms Through Palpation Constitute Medically Objective Evidence?
The Fourth Department majority, citing Nitti v Clerrico, holds that it does, but the dissent, citing the same Court of Appeals decision, disagrees.

The trial court denied defendants’ motion with respect to the permanent consequential and significant limitation of use categories.  On appeal, the court held that the motion should have been granted with regard to those categories as plaintiffs failed to raise an issue of fact to overcome defendants’ evidence that there was no objective evidence of serious injury. 

However, the appellate court agreed with the trial court that plaintiff raised a question of fact as to his 90/180-day claim through the submission of his chiropractor’s affidavit and records.  The chiropractor indicated that plaintiff had range-of-motion limitation in his cervical and lumbar spine and localized edema and muscle spasms in the cervical spine.  The spasms were detected through cervical palpation.  Plaintiffs established that plaintiff was unable to perform substantially all his customary and usual activities for at least 90 of the 180 days following the accident.

In Nitti v Clerrico, the Court of Appeals held that “[a]lthough medical testimony concerning observations of a spasm can constitute objective evidence in support of a serious injury, the spasm must be objectively ascertained." 

Here, the dissenting judge notes that plaintiff’s chiropractor detected the spasm through “palpation,” but that he did not indicate any diagnostic technique used to induce the spasm.  He further noted that the Court of Appeals has held that a spasm is not considered objective evidence of injury absent evidence that it was “objectively ascertained.”  Palpation, according to the dissent, is not an objective diagnostic technique.  The dissenting judge also found the chiropractor’s conclusions to be speculative and conclusory because, among other things, he did not explain why the symptoms should be attributed to the accident and not to pre-existing degenerative conditions revealed in the MRI.

The dissenting judge comments on the “unexplained and piecemeal manner” in which the majority credits the chiropractor’s affidavit with regard to the 90/180-day claim, but rejects it with respect to the other categories.  If the affidavit was sufficient to raise an issue of fact by providing objective evidence of injury under the 90/180-day category, then the other categories of permanent consequential and/or significant limitation of use categories should not have been dismissed.
Note:  For what it is worth, we must agree with the dissenting judge and we recommend reading the decision.

 

AUDREY’S ANGLES ON NO-FAULT
Audrey A. Seeley
[email protected]
ARBITRATION
11/16/11         RS Medical v. Progressive Ins. Co.
Arbitrator Kent L. Benziger, Erie County
IME Report to Deny Durable Medical Equipment More Persuasive When Compared to Checklist Medical Necessity Letter
The Applicant’s assignor was involved in a February 3, 2006, accident and treated at the hospital the following day.  On November 29, 2006, the assignor was prescribed by Dr. Krishna an RS 4 channel muscle stimulator.  Dr. Krishna indicated that the durable medical equipment was prescribed for back and neck acute pain relief, relax muscle spasms and maintain range of motion.

The insurer denied the durable medical equipment upon an IME conducted by neurologist, Dr. Sachdev.  Upon examination the assignor complained of intermittent neck pain and lower back pain.  The objective testing revealed normal cervical spine range of motion and only slight decrease in lumbar spine range of motion.  Dr. Sachdev opined that there was no objective neurological findings and no need for durable medical equipment.

The assigned arbitrator weighing Dr. Sachdev’s report against the Applicant’s checklist letter of necessity determined that Dr. Sachdev’s report was more persuasive.  The assigned arbitrator also noted that Applicant would be better served submitted treatment records and a specific letter of medical necessity.  The Applicant argued that it attempted to receive treatment records from the insurer via a document demand which went unresponded to.  The assigned arbitrator did not find this argument persuasive in light of the lack of any good faith attempt to obtain the records from the treating physician first.  Also, the assigned arbitrator indicated that the strict guidelines of the CPLR on discovery do not apply to arbitration.  Accordingly, the insurer’s denial was upheld.

11/11/11         Applicant v. Niagara Frontier Transit Metro System
Arbitrator Thomas J. McCorry, Erie County
Alleged Fall While Exiting Bus Not Use and Operation
The Applicant claimed she was injured when she fell exiting from a bus at Main and Utica Streets in Buffalo.  She claimed that the bus steps were wet and it was snowing outside.  The Applicant contended the driver did not help her and continued on after all of the passengers exited.  The Applicant landed on the sidewalk and bruised her knee.

The bus company representative testified that the drivers for that route were all interviewed and no one reported witnessing an accident as Applicant claims.

The assigned arbitrator determined that this incident did not arise out of the use and operation of the bus.  Therefore, the claim for No-Fault benefits was properly denied.

LITIGATION

11/15/11         Lenox Hill Hosp. a/a/o Hector Jamie Robles v. Government Employees Ins. Co.
Appellate Division, Second Department
Summary Judgment Denied Where Sole Issue Is Whether There Was Timely Denial of Claim
The plaintiff’s summary judgment motion was properly denied as the defendant’s only burden was to raise an issue of fact with regard to timely payment or denial of the claim.  It is noted that the sole issue on summary judgment was whether the insurer did not pay or deny the claim within 30 days.

11/04/11         Foster Diagnostic Imaging, PC a/a/o Mikhail Grinshpun v. Clarendon Nat. Ins. Co.
Appellate Term, Second Department
Failure to Rebut Insurer’s Showing Results in Insurer Obtaining Summary Judgment
The insurer’s summary judgment motion should have been granted as it established lack of medical necessity based upon a peer review.  The peer review had sufficient factual and medical rationale to support the opinion of lack of medical necessity.  The plaintiff failed to rebut the insurer’s showing.

11/04/11         Park Slope Med. and Surg. Supply, Inc. a/a/o Lindoro Castellanus v. Praetorian Ins. Co.
Appellate Term, Second Department
Insurer Demonstrates Policy Violation for Failure to Attend IMEs
The insurer established that the assignor failed to attend two scheduled IMEs in violation of a condition to coverage under the policy.  The IME service’s president’s affidavit was sufficient to establish that the IME scheduling letters were timely mailed in accordance with standard office procedure.  Also, the chiropractor scheduled to conduct the examination submitted a sufficient affidavit establishing the assignor’s failure to appear for the scheduled IMEs.  Also, the insurer submitted an affidavit from a claims division employee which established timely denial issued upon failure to appear for two scheduled IMEs.

11/04/11         Raz Acupuncture, PC a/a/o Marina Babayeva v. Geico Gen. Ins. Co.
Appellate Term, Second Department
Flawed Affidavit from Billing Company Leads to Denial of Summary Judgment
Plaintiffs’ summary judgment motion should have been denied as the affidavit submitted from the third-party billing company’s president failed to demonstrate how he possessed personal knowledge of plaintiff’s business practices and procedures.  Therefore, plaintiff did not establish that the claim forms attached the affidavit were admissible business records.

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

Property

11/22/11         1840 Concourse Associates, LP v Praetorian Insurance Company
Appellate Division, First Department
Two Year Suit Limitation Policy Bars Plaintiff’s Suit
Plaintiff was insured by defendant Praetorian under a Commercial Property Policy.  Unfortunately for plaintiff, it commenced the instant action for coverage more than two years after the date of loss.  By mechanical application of the two-year suit limitation clause (standard in almost all property policies), plaintiff’s action was dismissed as untimely.  Having reached that decision, the Court noted that it was not required to reach any of plaintiff’s other arguments.

11/18/11         KJDE Group v Hartford Fire Ins. Co.
Appellate Division, Fourth Department
Unambiguous Wording of the “Flood” Exclusion Applied; No Coverage as a Result
Plaintiffs were owners and lessees of a certain premises in Binghamton, New York.  The premises sustained serious water damage as a result of water infiltration that occurred during a severe storm where almost seven inches of rain fell. 

Upon receipt of the claim, Hartford investigated the loss and determined that the water arose from heavy rains and clogged road culverts in the areas near plaintiff’s premises.  Accordingly, Hartford disclaimed coverage on the basis of the “flood” exclusion which, in relevant part, defined a flood as…”[s]urface water…or overflow of natural or main[-] made body of water from its boundaries.”  In so holding, the Court noted that the language of the “flood” exclusion was not ambiguous.  The Court also noted that the record on appeal contained sufficient information to establish that the loss was resultant from the overflow of surface water that occurred due to the heavy rainfall in the area.

Potpourri

11/22/11         Tkeshelashvili v. State of New York
Court of Appeals
Plaintiff’s Own Reckless Behavior Dooms His Resulting Personal Injury Claim
In this tragic case, plaintiff was paralyzed after striking his head on the bottom of Colgate Lake.  Colgate Lake is located within the Catskills Mountain Range, and is designated by New York State as a pristine nature area.  As such, given its designation as a “wild forest”, Colgate Lake has no other improvements other than a parking lot, a small foot trail and one outdoor privy.  There are no beaches, no lifeguards, and no public toilets at the park. 

Plaintiff was injured when he struck his head on the bottom of the lake as he dove in.  From previous visits, plaintiff knew, or should have been aware, that when at full capacity the lake was only approximately four feet deep in the area where plaintiff dove.  In addition, plaintiff’s own testimony confirmed that he was aware that the lake was not at capacity given his observations, prior to his dive that water was beneath a spillway where he was standing.  Yet, despite this knowledge, and despite the fact that plaintiff admittedly could not see the bottom of the water when he dove, plaintiff still jumped headfirst into the lake. 

Plaintiff commenced this action against the State of New York on the basis that the State had a duty to warn of the dangers of shallow waters near the area where plaintiff dove.  The Court of Claims granted the State’s motion for summary judgment on the basis that plaintiff had failed to establish his duty to warn case because his action amounted to an intervening act “which was so extraordinary or far removed from the State’s conduct as to be unforeseeable.”  Moreover, the Court of Claims also noted that even if the State owed a duty, plaintiff’s actions were so reckless that no viable lawsuit could be maintained. 

On appeal, the Appellate Division affirmed the Court of Claims.  The Court of Appeals granted leave to appeal, and then promptly affirmed the Court of Claims’ initial decision.  In so holding, the Court of Appeals noted that the plaintiff failed to establish any knowledge, on behalf of the State, which would support plaintiff’s claim that the low water levels at the lake were, or should have been, a known danger.  In addition, the Court also reaffirmed its long standing tradition that a plaintiff’s act of diving into known shallow water, where the bottom was not readily observable, is so reckless that it does not give rise to a viable claim.

11/22/11         Cassidy v. DCFS Trust
Appellate Division, First Department
Defendant Fails to Establish It is In the Business of Renting Cars; No Graves Amendment Protection as a Result
Plaintiff commenced the instant action against DCFS Trust, among others, as a result of a motor vehicle accident.  DCFS Trust was named as a party defendant on the basis that it was a titled owner of the vehicle driven by the tortfeasor.  In addition, DCFS was also named as a party defendant on the basis that the driver/tortfeasor was an alleged employee of DCFS.

DCFS moved for summary judgment seeking dismissal of the suit against it on the basis that it was exempt from liability as the owner of the vehicle by operation of the Graves Amendment.  It also argued that the alleged tortfeasor/driver was not a DCFS employee.  To support its motion, DCFS submitted the affidavit of co-defendant Gilad Realty‘s principal who stated that it rented the vehicle from DCFS.

However, in affirming the denial of DCFS’ motion, the First Department noted that it is DCFS’ burden to establish it was regularly engaged in the business or trade of renting vehicles before the protections of the Grave’s Amendment could be triggered.  Just because it rented the vehicle involved in the collision giving rise to this suit does not, standing alone, satisfy that burden.  Further, the Court noted that the principal of a co-defendant could not verify the employment rolls of DCFS.  Accordingly, DCFS’ motion for summary judgment was unsupported. 

11/18/11         Mesler v. Podd, LLC
Appellate Division, Fourth Department
Snow Plow Contract Gets Section 5-322.1 Protection
Lots of good stuff in this one.  Plaintiff commenced the instant action against defendant Podd, LLC, among other parties, as a result of a slip and fall incident that occurred at a Weight Watcher’s, Inc. site.  Plaintiff allegedly slipped on ice that had apparently formed as a result of run-off from the roof of the premises.  Upon being named in the lawsuit, owners BG Developers and BG BCF, LLC commenced a third-party action against JJK Management.  JJK Management had provided snow removal services for the premises pursuant to a written contract.  Thereafter, plaintiff amended his Complaint to assert a direct cause of action against JJK.

JJK moved to dismiss plaintiff’s amended Complaint insofar as it asserted a claim against a third-party contractor.  Under the Court of Appeals’ famous Espinal decision, JJK argued that it owed no duty the plaintiff because it did not “launch an instrument of harm.”  In reversing the Trial Court, the Appellate Division noted that even if JJK was negligent in the performance of its obligations under its contract with the owners of the premises, at a minimum, its actions “amount to a finding that [JJK] may have failed to become an instrument of good.”  It followed that absent a specific duty, ala Espinal, plaintiff had no viable basis to proceed in a direct claim against JJK as the snow removal contractor. 

 In addition, JJK also sought reversal of the trial court’s decision which granted the owners conditional contractual indemnification.  Upon review of the contract between the owners and JJK, the Appellate Division noted that, per the clear language of the contract, JJK only owed an indemnity duty if it was established that the loss occurred due to its own negligence.  Here, the owners had failed to make any showing of negligence on behalf of JJK.  Accordingly, the owners failed to meet their burden for summary judgment, and the order of conditional indemnification was reversed. 

As part of this holding, the Appellate Division also noted that the owners also were required to show that they were free from negligence in order to enforce the agreement.  The Court relied upon the language of General Obligations Law 5-322.1 to reach this conclusion.  Of course, by its terms, GOL § 5-322.1 only applied to construction contracts.  In reaching this decision, the Appellate Division confirms that a snow plow contract is, in fact, entitled to the protections of the GOL. 

Weight Watchers, as the tenant at the premises, also moved on the basis that it had no snow removal obligations.  Indeed, a review of the lease between Weight Watchers and owners revealed that Weight Watchers has no contractual duties to keep the front of the premises free snow and ice.  In granting Weight Watchers’ application for summary judgment, the Court noted that the occasional removal of snow from the front of the premises did not establish that Weight Watchers had exerted “control over the sidewalk.” 

Finally, plaintiff’s motion against defendant owners was denied on a question of fact as to whether the owners’ had sufficient knowledge of the allegedly defective condition.  

Peiper’s Point – Of note in this decision is the fact that the Fourth Department has recognized snow removal contracts are protected by GOL § 5-322.1.  This means, of course, that a land owner cannot be indemnified for its own negligence.  Recall that the only claim that can generally made by the plaintiff, per the Espinal line of cases, will be directed to the owner of the premises.  As such, this holding may now mean that the only way an owner can obtain contractual indemnity is if they first establish they are not liable for the loss in the first place.  A dangerous precedent to establish. 

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

New Regulations for Underwriting of Large Commercial Insureds

The Department of Financial Services (“DFS”) announced that new regulations (Regulation 86) have been issued allow for deregulation for large businesses, sophisticated companies and public entities.  Regulation 86 adds a new special risk insurance exemption, Class 3, from rate filing and form approval requirements when issuing a qualifying policy to business which generate annual commercial risk insurance premiums totaling more than $25,000.  The goal of the new law and regulation is to enhance the ability of insurers to underwrite large commercial insureds, increase speed to market for certain products.

Any insurer issuing a policy under the new regulations must file with the Superintendent a certificate of insurance documenting the terms of the policy within one business day of binding the coverage.  At this time, there is no prescribed certificate but ACCORD forms may be used.  A supplemental checklist and certification form developed by DFS along with a copy of the previously filed certificate must also be filed with DFS within 30 days from the inception date of the policy.  An insurer is also required to file with the Superintendent, within three business days after delivery of the policy but no later than 60 calendar days after the inception date of the policy, any policy forms that were not previously filed.  These forms are submitted for informational purposes only and do not need to be approved prior to use. 

DFS stresses that this new regulation does not exempt an insurer from the requirements of the NY Insurance Law or the insurance regulations.  Also, the new regulations do not apply to workers’ compensation, medical malpractice and certain kinds of property/casualty insurance.

This process is limited to entities that meet the definition of a large commercial insured, and the large commercial insured must employ or retain a special risk manager.  Of note, the risk manager must be licensed as an insurance producer, and the insurer must maintain in its underwriting file evidence of such. 

A large commercial insured must:

1. Have a net worth of at least $7.5 million;
2. Have gross assets exceeding $10 million and a net worth of at least $1.5 million;
3. Be a for-profit business that generates annual gross revenues exceeding $15 million and a net worth of at least $1.5 million;
4. Be a for-profit business entity that has gross assets exceeding $10 million and generates annual gross revenues exceeding $15 million;
5. Be a not-for-profit organization or public entity with an annual budget exceeding $20 million for each of its three fiscal years immediately preceding the policy’s effective date;
6. Have 50 employees or, together with its parents, subsidiaries and affiliates 100 employees;
7. Be a municipality with a population of 50,000 or more persons.

In addition to the Regulation 86, the DFS issued Circular Letter No. 10 (2011) to clarify the provisions of the regulation.

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

11/08/11         Access Mediquip v. Health Care Ins. Co.
Fifth Circuit Court of Appeals - Texas
When Does 29 U.S.C. §1144(a) Pre-empt State Law Claims?
Access Mediquip’s [“Access”] lawsuit arises from United Health Care Insurance Company’s [“United”] refusal to pay some or all of Access’s claims for reimbursement for medical-device procurement and financing services provided in connection with over 2,000 patients insured under ERISA plans administered by United.

The issue on appeal is whether Access’ state-law claims of promissory estopple, quantum meruit, unjust enrichment, negligent misrepresentation and violations of the Texas Insurance Code are preempted by ERISA.

By way of background, Access procures and finances the purchase of medical devices for health care providers.  Usually, a provider requests Access to finance and procure a medical device before the procedure using the device is performed.  Access then contacts the patient’s insurer to confirm that the insurer will reimburse Access for the device and pay for Access’s services.

If the insurer will pay, Access procures a suitable device and supplies it to the provider, usually without charge.  Rather than sell the devices to the providers, Access looks almost exclusively to insurers for payment. From time to time, Access finances the cost of a device it did not procure, for example if the provider has already used the device in a medical procedure.  As with its procurement services, Access will provide financing only after contacting the patient’s insurer for confirmation that the insurer will reimburse Access for the device and its services.  Access will generally refuse to procure or finance a device if the insurer tells Access that the patient is not covered, that the device or procedure is not covered, that pre-certification of the device is required and has been denied, or that Access may not directly bill the insurer for the device.

The district court granted summary judgment for United on the state law claims relating to services for certain patients addressed in the litigation.  Preemption under 29 U.S.C. §1144(a) was the only ground on which the district court granted summary judgment on the state law claims.

Access’s state law promissory estoppel, negligent misrepresentation, and Texas Insurance Code claims are premised on its allegations that it provided its services to the identified patients in reliance on United’s representations regarding how much, and under what conditions United would pay Access for those services.  Regarding its promissory estoppel claim, Access alleges that United representatives’ statements regarding the patients constituted “promises to Access to accept bills from Access and/or to pay for medical devices and related services that Access provided to United’s insureds”.  Regarding its negligent misrepresentation claim, Access alleges that United’s statements constituted representations that the patients had health benefits coverage that was provided or administered by United for the medical devices and related services at issue; and United would pay customary and reasonable charges to Access for medically necessary devices and services provided for the benefit of United’s insureds.  Regarding its Texas Insurance Code claims, Access alleges that United’s statements constitute representations that if Access would finance the patient’s devices, United would permit Access to bill United directly, and United would pay Access customary and reasonable charges for its services.

Referring to prior decisions of the Fifth Circuit, the Court noted a test that has been used to determine whether §1144(a) preempts a state law claim.  A defendant pleading preemption under 29 U.S.C. §1144(a) must prove that: “(1) the state law claims address an area of exclusive federal concern, such as the right to receive benefits under the terms of an ERISA plan; and (2) the claims directly affect the relationships among traditional ERISA entities – the employer, the plan and its fiduciaries, and the participants and beneficiaries.

Although the district court summarized prior case law as requiring that “to the extent . . . that [the] state law cause of action is based on misrepresentations regarding the extent of coverage under an ERISA plan or the manner or processing and disposing of the claims for payment by the ERISA plan, the cause of action is preempted”, the Fifth Circuit Court disagreed.  Citing to prior case law, the Court stated that it held that these claims are not preempted because they were not premised on a right to recover benefits under the plan’s terms, but rather on defendant’s misleading representations regarding the extent that the plan would reimburse for its services.   State law claims alleging common law misrepresentation and statutory misrepresentation under the Texas Insurance Code are not dependent on or derived from a right to recover benefits under the patient employer’s plan.

The Court pointed out that neither United nor the district court cited to any case which held that ERISA preempts a third-party provider’s state law misrepresentation claims premised on allegations that it was misled by an ERISA plan’s statements regarding the extent of coverage for the provider’s services.

The Court held that the merits of Access’s misrepresentation claims do not depend on whether its services were or were not fully covered under the patients’ plan.  Consultation of the plans’ terms was not necessary to evaluate whether United’s agents’ statements were misleading.  The state law underlying Access’s misrepresentation claims does not purport to regulate what benefits United provides to the beneficiaries of the ERISA plans, but rather what representations it makes to third parties about the extent to which it will pay for their services.  To prevail on these claims, Access need not show that United breached the duties and standard of conduct for an ERISA plan administrator, because Access’s alleged right to reimbursement does not depend on the terms of the ERISA plans. 

The Court concluded that with respect to the misrepresentation claims the administrator’s handing of inquiries is not a domain of behavior that Congress intended to regulate with the passage or ERISA, which imposes no fiduciary responsibilities in favor of third-party health care providers regarding the accurate disclosure of information - or regarding any other matter.
As to the unjust enrichment and quantum meruit claims the Court affirmed the decision of the district court.  The Court held that those claims, if not preempted, would allow any provider who has provided care for which the ERISA plan denied coverage to challenge the ERISA plan’s interpretation of its policies in state court. That outcome would run afoul of Congress’s intent that the causes of action created by ERISA be the exclusive means of enforcing and ERISA plan’s terms, and permit state law to interfere with the relations among ERISA entities.

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

11/18/11         Certain Underwriters at Lloyd’s of London v. Virginia Sur. Co., Inc.
Supreme Court, Bronx County
Underlying Plaintiffs Permitted to Intervene In Declaratory Judgment Action Commenced by Excess Insurer Against Primary Carrier
Certain Underwriters at Lloyd’s of London (“Lloyds”), the excess insurer, commenced this action alleging that the primary carrier breached its duty of good faith and fair dealing by refusing to implead a potentially responsible third-party in the underlying action, specifically, the party that designed and supplied the materials for the shoring platform that collapsed. 

This motion was brought by the underlying plaintiffs’ seeking leave to intervene.  The court granted the motion indicating that they had sufficiently established that, without intervening, their interests would not be adequately represented.  The court also noted that by permitting plaintiffs’ to intervene if Lloyd’s obtained a declaratory judgment extinguishing its obligations to pay excess awards to the injured plaintiffs, that declaration would have res judicata effect on the injured plaintiffs’ attempts to collect excess amount over Virginia Surety’s policy limits. 

11/15/11         TJM Constr. Corp. v. AWCI Ins. Co. Ltd.
Supreme Court, New York County
Evidence of Oral Contract Results in Additional Insured Coverage for General Contractor
This is an interesting decision where the general contractor successfully established, on a motion to reargue, the existence of an oral contract that would trigger additional insured coverage under its subcontractor’s policy.  TJM Construction Corporation (“TJM”) was retained to serve as the general contractor on a construction site; thereafter, a worker was injured.  TJM brought this action alleging that it was entitled to coverage as an additional insured under a commercial general policy issued by AWCI Ins. Co., Ltd (“AWCI”) to Construction Services Corp. (“Construction Services”).

The “contractor’s blanket additional insured endorsement” provided that coverage extended to and included:

As an insured any person or organization called additional insured who you are required to add as an additional insured on this policy under: 

• A written contract or agreement; or
• An oral contract or agreement where a certificate of insurance shows] that the person or organization as an additional insured has been issued. 

 

Here, there was a written contract between the TJM and Construction Services; however, it was not signed.  Thus, in the initial motion, the court found a question of fact as to whether the parties were bound by the contract on the date of loss and whether the underlying accident arose out of Construction Services’ work for TJM.

The basis of this motion to reargue was that the court overlooked the fact that an oral contract also existed between TJM and Construction Services prior to the date of loss, triggering coverage.  In support, TJM submitted daily work logs, requests by Construction Services for payment and acceptance of payment, as well as a certificate of insurance in its favor.  In opposition, AWCI relied on an affidavit from Construction Services’ president asserting that the work was done pursuant to a purchase order, which contained no language as to indemnity.  The president also asserted that he, essentially, received a copy of the subcontract and purposefully did not sign it.  The court held that this affidavit was insufficient to raise an issue of fact as it failed to explain why Construction Services was on site accepting payment.  It also never explicitly denied the existence of an oral contract. 

Further, the court reconsidered its prior finding of a question of fact as to whether the injuries arose out of Construction Services’ work for TJM.  Accordingly, it granted TJM’s motion. 

11/14/11         Quoizel, Inc. v. Hartford Fire Ins. Co.
Supreme Court, New York County
Where the Policy Only Paid the Sales Price for Damaged Stock Manufactured by the Insured, the Court Found a Question of Fact as to the Value of Component Parts Produced in China by Related Entities
Quoizel is a manufacturer of lighting and home décor accessories with a facility in South Carolina.  It also utilizes manufacturing plants in China to produce component parts.  The company suffered a loss when a sprinkler system in its South Carolina warehouse leaked damaging some inventory.  All damaged inventory was produced in China. 

Quoizel placed a claim with its commercial liability insurer, Hartford, who agreed to pay the replacement cost of the inventory.  This was not sufficient to Quoizel and it brought this action seeking the sale price of the inventory.  

Pursuant to the terms of the policy, it provided, “[w]e will determine the value of ‘Stock’ you have manufactured at the selling price less discounts and expenses you otherwise would have incurred.”  The term “manufactured” was not defined and, in the court’s opinion, was ambiguous resulting in the consideration of extrinsic evidence. 

Thus, the question for the court was whether Quoizel was the manufacturer of the damaged inventory produced by the Chinese entities.  In considering this issue, the court looked at the First Department decision in Bijan Designer for Men, Inc. v. Fireman’s Fund Ins. Co., which held that a company that merely designed garments, selected the material, and provided specifications for the factory, was not a manufacturer. 

In reply, Quoizel submitted evidence that the damaged inventory was labeled with its brand name and that its tax filing listed the company as a manufacturer.  Quoizel also asserted, alternatively, that it had “hands-on” involvement with the day-to-day process of manufacturing at the Chinese companies.

In considering this evidence, the court was not persuaded and found questions of fact resulting in a denial of both parties’ motions.  The court noted that a label was not definitive evidence that an entity was a manufacturer.  Also, in addition to it being called a manufacturer on its tax filings, Quiozel was also listed as an importer.  Thus, these facts were not definitive. 

11/10/11         City of New York v. QBE Ins. Corp.
Supreme Court, New York County
Court Rejects Argument Made by Additional Insured that the Prejudice Rule Should Apply to a Policy Issued Prior to January 2009
This is a late notice decision.  The City asserted that it qualified as an additional insured under a policy issued by QBE.  While QBE admitted the City’s status, it denied coverage based on its failure to provide timely notice of claim. 

On April 6, 2006, a construction worker was injured when he fell from a scaffold after it pulled away from the school building.  Notice of claim was served on the City on May 2, 2006; however, it did not notify QBE until July 7, 2006, three months after the accident and two months after receiving notice of claim.  In opposing QBE’s motion for summary judgment, the City argued that QBE was required to show that it was prejudiced by the delay.  The court rejected the argued reminding the City that the prejudice requirement only applies to policies issued on or after January 17, 2009. 

The court further found that no excuse was provided for the delay and that QBE issued a timely denial of coverage. 

11/02/11         ELO Group LLC v. Greater N.Y. Mutual Ins. Co.
Supreme Court, New York County
What Came First, the Chicken or the Egg? Or the Need to Repair the Allegedly Out-of-Compliance Electrical and Gas Systems, or the Fire?
48 West 48th Street, New York, is a 16-story commercial building with restaurants at street level and numerous jewelry manufacturers on the upper floors.  At some point, a claim was filed with the building’s insurer for a loss caused by an explosion and/or fire.  The fire caused damage to gas and electrical distribution systems and damage to cultural components.  Following the fire, the Department of Buildings and/or Consolidated Edison required the building to test and repair the gas system prior to restoring service.  Based on this testing, the building was forced to repair and/or replace faulty portions of the system and enclose all parts of the gas system in fire-rated enclosures.  The building then submitted a claim for the cost of all the work. 

In reply, the insurer took the position that it was only required to pay for the replacement of those portions of the gas system that were damaged by the fire and/or explosion.  This included only damage to the gas system on the 14th Floor, where the fire occurred, not the entire building. 

The policy at issue excluded coverage for damages resulting from wear and tear.  It also excluded coverage for damage indirectly caused by the enforcement of an ordinance or law and the failure to comply.  In support, the insurer submitted numerous affidavits indicating that the gas riser, branch lines and associated gas meters were not legally installed in the building and the condition should have been corrected prior to the fire.  Also, the gas lines were not properly enclosed, in violation of building codes.  The building opposed these affidavits with its own experts who asserted that the gas system was proper prior to the fire.  Specifically, it pointed to the facts that there were 17 plumbing applications since 1989 and it was never noted that the system was out of compliance.  The building further argued that the repairs were the direct result of the fire, a covered event, and were not the result of pre-existing Building Code violations. 

Ultimately, due to the conflicting expert affidavits, the court denied the insurer’s motion for summary judgment.  It held that there was not clear evidence that the system was out of compliance and, in turn, a question of fact existed.     

10/18/11         Hon v. Allstate Indem. Co.
Supreme Court, New York County
A Motion to Renew Is Not an Opportunity to Fix Old Mistakes
John Hon brought this action alleging that Allstate breached its homeowners’ policy when it wrongfully disclaimed coverage based on a policy exclusion.  Unfortunately, the action was brought five years after the denial and the policy contained a two-year limitation for lawsuits provision.   

After receiving the complaint, Allstate moved to dismiss based on evidentiary evidence (i.e. the policy).  The court denied the motion due to a question of fact.  Hon submitted an affidavit stating that he never received a copy of the insurance policy setting forth the two-year contractual statute of limitations; thus, the general six-year statute of limitations applied.  In reply, instead of submitting any documentation, Allstate asserted that a request for such information had been made and, upon receipt, it would supplement its rely papers. 

At oral argument, the court asked counsel for Allstate whether these supplemental papers would include an affidavit from an employee attesting to the company’s mailing procedure (the idea being that such an affidavit could create a presumption of receipt).  Counsel replied “no,” but, likely realizing this was the wrong answer, requested an adjournment to submit an affidavit.  Because counsel had already had months to submit the affidavit, the court denied the request. 

Now, in this decision, Allstate moved for leave to renew/reargue based on an employee affidavit.  The court held that renewal is granted sparingly.   “[I]t is not a second chance freely given to parties who have not exercised due diligence in their first factual presentation.”  Here, Allstate asserted that it only became aware that Hon was relying on the failure to obtain the policy of insurance in his opposition; thereafter, Allstate acted rapidly to obtain the necessary information.  In considering this excuse, the court noted that Allstate’s version of events was belied by the record which showed that Allstate was given an opportunity to submit an affidavit but did not do so.  Further, Allstate only requested the opportunity to submit one after questioning by the court.  Thus, the court denied the motion to renew/reargue. 

 

EARL’S PEARLS
Earl K. Cantwell
[email protected]
WE WON’T KEEP THE TAIL LIGHT ON FOR YOU

            The United States Court of Appeals for the 10th Circuit recently held that an insurance company’s failure to hold onto a pair of tail lights from an accident was not bad faith when there was no reason to think the items would be needed as evidence in a personal injury claim years later. 

The insured’s pickup truck was rear-ended, but the other driver claimed the accident was caused by non-functioning tail lights on the insured vehicle.  Liberty Mutual had the vehicle and the lights tested and concluded they were working at the time of the crash.  As a result, Liberty Mutual disputed liability claims threatened by the other driver, and had the other driver’s carrier pay for the damage to the insured vehicle.  This was the setting in Johnson v. Liberty Mutual Fire Insurance Co., 2011 WL 3606637 (10th Circuit August 17, 2011). 

            Two years after Liberty Mutual closed its claim file, and almost four years after the accident, the insured and his wife decided to sue the other driver for personal injury.  The insureds asked Liberty Mutual to return the tail lights, but Liberty Mutual no longer had them.  The insureds settled their personal injury claim, but alleged they received less in settlement because they did not have the lights for production and inspection.  They sued Liberty Mutual for spoliation of evidence and bad faith. 

            The trial court granted summary judgment in favor of Liberty Mutual which was affirmed on appeal.  The court concluded there was no evidence that Liberty Mutual knew or should have known that the tail lights would be needed as evidence in future litigation, and it would be unreasonable to expect the insurer to keep the lights for two years after it had closed the claim file.  In many respects, Liberty Mutual was fortunate to have this claim dismissed on a summary judgment motion.

            The Appellate Court stressed that the insureds had never asked Liberty Mutual to keep the tail lights, never mentioned that they intended to file a personal injury suit at a later date, and the insureds waited almost four years after the accident to seek return of the lights.  The Court noted that in the absence of a statutory or contractual duty, it was unreasonable to expect Liberty Mutual to hold onto the apparently “unwanted” property for two years after all claims appeared to have been resolved.

            The Court rejected the insureds’ argument that the insurer should be held liable because it had an internal policy that required it to save the lights for six years after closing its file.  However, this policy did not establish that Liberty Mutual should have foreseen any plan to bring a lawsuit or anticipate the lights would be needed as evidence at a later date.  In a pithy statement, the Court said that, “When you violate a corporate policy, you may well be in trouble with your boss, but that doesn’t necessarily mean you have committed a tort.” 

            This case represents the convergence of spoliation and bad faith.  Note that it was deemed important that the insureds had never asked the carrier to keep the lights, nor mentioned the possibility of a later personal injury suit which might well have changed the outcome.  In addition, the insureds waited almost four years after the accident to sue and then seek return of the lights; a shorter period of time may well have caused difficulty for the carrier. 

            Note should also be taken of the approach the courts took to the fact that there may have been some technical violation of an internal Liberty Mutual policy in disposing of the tail lights, but that did not rise to the level of a tort, state a cause of action, or allow someone to sue or seek affirmative recovery on the basis of violating an internal insurance policy rule.  As the court said, getting in trouble with your boss does not necessarily mean the other side wins or has standing to assert a claim. 

            Even if additional or later personal injury or property damage litigation is not anticipated, it is still advisable to have a record and evidence retention policy wherein any items transferred into the care, custody and control of the insurance company are retained for an appropriate period of time to insure either availability in the event of litigation or enough passage of time that retention and storage would not be deemed required.

 

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

 

11/22/11         Voris v. Molinaro
 Connecticut Supreme Court
Under Connecticut law Settling the Wife's Personal Injury Action Operates to Bar the Husbands Action for Loss of Consortium
On May 10, 2004, the plaintiff was driving his motor vehicle, while his wife, rode in the passenger seat. The defendant, who was driving his motor vehicle, struck the plaintiff's vehicle on the passenger side. As a result of the collision, the plaintiff’s wife sustained severe injuries to her back and spine. She has was bedridden for extended periods of time, unable to walk long distances, and unable to complete her household duties. She required epidural/faucet block treatments for the pain from her injuries. In addition, the plaintiff sustained severe injuries to his neck, back and spine. He experienced pain and has difficulty completing household chores. The plaintiff and his wife brought this action together, each asserting two counts—one for negligence, in connection with their direct injuries, and one for loss of consortium due to the other's injuries.

On September 8, 2008, the plaintiff’s wife executed a release pursuant to a settlement agreement that she had entered into with the defendant. Consistent with that agreement, on January 30, 2009, she withdrew both of her claims against the defendant. On the same day, the plaintiff withdrew his negligence claim, leaving his claim for loss of consortium as the sole remaining count of the complaint. The trial court granted the defendant's motion to strike the remaining count, relying on Hopson v. St. Mary's Hospital, 176 Conn. 485, 494, 408 A.2d 260 (1979), to conclude that the plaintiff's loss of consortium claim was barred by the settlement of his wife’s negligence claim. The trial court rendered judgment for the defendant and this appeal followed. The issue on appeal was whether a claim for loss of consortium was barred by the settlement of the underlying negligence claim. The plaintiff, husband contended that: (1) a claim for loss of consortium may be maintained independently of the underlying injury claim; and (2) a settlement of the underlying injury claim does not bar the related claim for loss of consortium. The plaintiff claimed that a loss of consortium claim was a separate cause of action that may be maintained independently of the direct injury claim on which it is based. The defendant responded that the consortium claim is derivative of the direct injury action and therefore is barred by settlement of that action. The defendant relied on the holding of Hopson that “because a consortium action is derivative of the injured spouse's cause of action, the consortium claim would be barred when the suit brought by the injured spouse has been terminated by settlement....” Hopson v. St. Mary's Hospital, 176 Conn. 485, 494, 408 A.2d 260 (1979). The Connecticut Supreme Court agreed and dismissed the plaintiff’s appeal.
Submitted by: Kile T. Turner, Norman Wood Kendrick Turner

Reported Decisions

Perl v. Meher
Adler v. Bayer
Travis v. Batchi

Case No. 206:
Annette G. Hasapidis, for appellants.
Marjorie E. Bornes, for respondents.
New Yorkers for Fair Automobile Insurance Reform;
New York State Trial Lawyers Association, amici curiae.
Case No. 207:
Annette G. Hasapidis, for appellants.
Jeffrey A. Domoto, for respondents.
Case No. 208:
Marie R. Hodukavich, for appellant.
Marjorie E. Bornes, for respondents.

SMITH, J.:
In Pommells v Perez (4 NY3d 566, 571 [2005]), then Chief Judge Kaye described the working of the No-Fault Law (officially the Comprehensive Motor Vehicle Insurance Reparations Act, Insurance Law §§ 5101 et seq.) by saying: "Abuse . . . abounds." That included, she said, "abuse . . . in failing to separate 'serious injury' cases" from others (id.).
No-fault abuse still abounds today. In 2010, no-fault accounted for 53% of all fraud reports received by the Insurance Department (Annual Report to the Governor and the Legislature of the State of New York on the Operations of the Insurance Frauds Prevention Act at 23). "Serious injury" claims are still a source of significant abuse, and it is still true, as it was in 2005, that many courts, including ours, approach claims that soft-tissue injuries are "serious" with a "well-deserved skepticism" (Pommells, 4 NY3d at 571).
Here, we confront three cases in which the Appellate Division rejected allegations of serious injury as a matter of law. We conclude that we must reverse in two of the cases, Perl v Meher and Adler v Bayer, because the evidence plaintiffs have put forward is legally sufficient. We affirm in the third case, Travis v Batchi.
In finding that two of these three claims survive our scrutiny, we by no means signal an end to our skepticism, or suggest that that of lower courts is unjustified. There are cases, however, in which the role of skeptic is properly reserved for the finder of fact, or for a court that, unlike ours, has factual review power.
I
Plaintiffs Joseph Perl, David Adler and Sheila Travis brought lawsuits for personal injuries allegedly resulting from automobile accidents; Perl's and Adler's wives also sued, asserting derivative claims. Because the No-Fault Law bars recovery in automobile accident cases for "non-economic loss" (e.g., pain and suffering) unless the plaintiff has a "serious injury" as defined in the statute, Perl, Adler and Travis seek to show that their injuries were serious.
Of the several categories of "serious injury" listed in the statutory definition, three are relevant here: "permanent consequential limitation of use of a body organ or member"; "significant limitation of use of a body function or system"; and "a medically determined injury or impairment of a non-permanent 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 ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" (Insurance Law § 5102 [d]). Plaintiffs in all these cases rely on one or both of the first two of these categories, claiming permanent and significant limitations of their use of a bodily organ or system. Travis also relies on the third category, claiming that she was disabled from "substantially all" of her "usual and customary daily activities" for at least 90 out of the 180 days following her accident.
Defendants challenged plaintiffs' showing of serious injury in all three cases. In Perl, defendants moved for summary judgment; Supreme Court denied the motion, but the Appellate Division reversed and dismissed the complaint, with two Justices dissenting (Perl v Meher, 74 AD3d 930 [2nd Dept 2010]). The Adler case was tried, resulting in a jury verdict for plaintiffs after defendants had unsuccessfully moved for judgment as a matter of law under CPLR 4401; the Appellate Division reversed, granted defendants' motion and dismissed the complaint (Adler v Bayer, 77 AD3d 692 [2d Dept 2010]). In Travis, Supreme Court granted defendants' motion for summary judgment and the Appellate Division affirmed (Travis v Batchi, 75 AD3d 411 [1st Dept 2010]). Plaintiffs in Perl appeal to this Court as of right, pursuant to CPLR 5601 (a). We granted leave to appeal to plaintiffs in Adler and Travis.
All three cases turn on the sufficiency of plaintiffs' proof. In Perl and Travis, all of the Appellate Division Justices concluded, as do we, that the evidence offered in support of defendants' summary judgment motions sufficed to shift to plaintiffs the burden of coming forward with evidence to raise an issue of fact. The question is whether plaintiffs met that burden. In Adler, the question is whether plaintiffs offered enough evidence at trial to get to the jury.
II
The Perl and Adler cases are not related, but they are similar in a number of ways, and plaintiffs in each relied on the testimony of the same expert, Dr. Leonard Bleicher.
Perl and Adler both testified that their ability to function had been significantly limited since their accidents. Perl, 82 when the accident occurred, testified that he could no longer garden, carry packages while shopping, or have marital relations. Adler, a school teacher, testified that he could not move around easily, could not read for a long time and could not pick up his children.
We held in Toure v Avis Rent A Car Sys. (98 NY2d 345, 350 [2002]) that such "subjective complaints alone are not sufficient" to support a claim of serious injury; there must be "objective proof." Thus Dr. Bleicher's testimony was critical in both the Perl and Adler cases. In each case, the doctor testified that he examined the injured plaintiff shortly after the accident; that he performed a number of clinical tests, named but not fully described in the record, which were "positive" — i.e., indicated some departure from the norm; that he observed that the patient had difficulty in moving and diminished strength; and that the patient's range of motion was impaired. Bleicher did not, at his initial examination of either Perl or Adler, quantify the range of motion he observed, except to say that Perl's was "less than 60 percent of normal in the cervical and lumbar spine." In each case, however, Bleicher again examined the patient several years later, using instruments to make specific, numerical range of motion measurements.
We said in Toure:
"In order to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury . . . An expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system"

(id.).
We need not decide here whether Bleicher's testimony would furnish legally sufficient proof of serious injury under the "qualitative" prong of Toure. While his observations at his initial examinations were detailed, it is debatable whether they have an "objective basis," or are simply a recording of the patients' subjective complaints. Under the "quantitative" prong of Toure, however, Bleicher's later, numerical measurements are sufficient to create an issue of fact as to the seriousness of Perl's and Adler's injuries.
Defendants argue that Bleicher's quantitative findings were made too long after Perl's and Adler's accidents. The Appellate Division in Perl agreed, holding that "plaintiffs are . . . required to demonstrate restricted range of motion based on findings both contemporaneous to the accident . . . and upon recent findings" (Perl v Meher, 74 AD3d at 931). (The Appellate Division's rationale in Adler, though not specifically explained, is presumably the same.) Toure, however, imposed no such requirement of "contemporaneous" quantitative measurements, and we see no justification for it.
There is nothing obviously wrong or illogical about following the practice that Bleicher followed here — observing and recording a patient's symptoms in qualitative terms shortly after the accident, and later doing more specific, quantitative measurements in preparation for litigation. As the author of a recent article points out, a contemporaneous doctor's report is important to proof of causation; an examination by a doctor years later cannot reliably connect the symptoms with the accident. But where causation is proved, it is not unreasonable to measure the severity of the injuries at a later time (see Morrissey, "Threshold Law": Is a Contemporaneous Exam by Court of Appeals in Order? New York Law Journal, January 17, 2011). Injuries can become significantly more or less severe as time passes.
Bleicher testified in Adler that it is the better practice to defer a precise quantitative assessment of an injury:
"On initial examination when person has assorted extensive fresh recent acute injuries, then it's better to go with our visual parameters because measuring range of motion of the joint when it's acutely injured, it's not reliable. It doesn't present correct numbers."

The orthopedist who testified for the defense in Adler did not challenge this opinion. In fact, the defense doctor acknowledged that he, like Bleicher in his initial examination, relied on visual estimates of range of motion, not on measurements with instruments.
We agree with the Appellate Division dissenters in Perl that a rule requiring "contemporaneous" numerical measurements of range of motion could have perverse results. Potential plaintiffs should not be penalized for failing to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation. A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries. We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery.
Defendants in both Perl and Adler offer alternative grounds for upholding the Appellate Division's dismissal of the complaints. We find only one of those grounds to warrant discussion: Defendants in Perl claim that there was insufficient evidence of a causal connection between Perl's accident and his injury. They assert that here, as in Carrasco v Mendez (decided with Pommells v Perez), defendants "presented evidence of a preexisting degenerative . . . condition causing plaintiff's alleged injuries, and plaintiff failed to rebut that evidence sufficiently to raise an issue of fact" (4 NY3d at 579).
Defendants in Perl did indeed present evidence, in the form of a sworn radiologist's report based on an MRI, that Perl's injuries were "degenerative in etiology and long standing in nature, preexisting the accident." However, plaintiffs' contrary evidence, while hardly powerful, was sufficient to raise an issue of fact. They submitted another radiologist's affidavit, saying that, while some findings from the MRI "are consistent with degenerative disease," a single MRI cannot rule out the possibility that "the patient's soft tissue findings are . . . a result of a specific trauma." That question, this radiologist said, can best be judged "by the patient's treating physician in conjunction with exam, history and any previous tests."
The treating physician, Dr. Bleicher, opined that since Perl "had not suffered any similar symptoms before the accident or had any prior injury/medical conditions that would result in these findings," the findings were causally related to the accident. A factfinder could of course reject this opinion: It is certainly not implausible that a man of 82 would have suffered significant degenerative changes. We cannot say as a matter of law on this record, however, that such changes were the sole cause of Perl's injuries.
Though we hold plaintiffs' evidence of serious injury in both Perl and Adler to be legally sufficient, both cases have troubling features. Most striking is the sworn assertion by a defense physician who examined Perl, which in substance accuses Perl of malingering. The doctor said:
"The fact that he sits, yet presents with a show of only 10 degrees of flexion of the lumbar spine is contradictory. His 'give-away' strength is contradictory with his ambulation. This individual's show of such decreased range of motion is totally contradicted by the fact that he followed me about, rotating the cervical spine 60 degrees and flexing at least 30 degrees. I do not believe that this individual presents with any true findings at this time."
The issue presented by this evidence, of course, is one of credibility, which is not for this Court to decide.
III
We reach a different result in Travis, because we see no evidence in the record of that case of a serious injury as defined in the No-Fault Law.
Travis, like Perl and Adler, relies on the two "limitation of use" categories of the statutory definition — categories that in substance require some significant, permanent impairment. But no evidence of such an impairment is to be found — indeed we cannot tell from the record what Travis's alleged permanent impairment is. She submitted a report from her treating physician, stating the conclusion that she has a "[m]ild partial permanent disability," but the report does not describe the disability; it says that Travis is "[c]urrently able to perform the essential functions of her job." There is no evidence that she suffered either a "permanent consequential limitation of use of a bodily organ or member" or a "significant limitation of use of a body function or system."
Travis relies more heavily on the category of the definition that relates to temporarily disabling conditions, claiming that she had a "medically determined injury or impairment of a non-permanent nature which prevented [her] from performing substantially all of the material acts which constitute [her] usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment." Again, however, the evidence to support the claim is lacking. Even Travis's subjective description of her injuries — which in any event would be insufficient, under Toure, to defeat summary judgment — does not show that there were 90 of the 180 days after the injury when she was disabled from "substantially all" of her usual activities. On the contrary, she acknowledges that she was able to do some work from home less than three months after the accident. And her doctor's reports say nothing at all about what activities she could and could not perform until, 111 days after the accident, she was found able "to perform the essential functions of her job," though with "restrictions." The record does not show any "medically determined injury" that would bring Travis within the "90/180" provision of the statute.
Accordingly, in Perl v Meher, the order of the Appellate Division should be reversed, with costs, and the order of Supreme Court denying defendant's motion for summary judgment reinstated; in Adler v Bayer, the order of the Appellate Division should be reversed, with costs, defendant's motion for judgment as a matter of law denied, and the case remitted to the Appellate Division for consideration of issues raised but not determined on the appeal to that court; and in Travis v Batchi, the order of the Appellate Division should be affirmed, with costs.
* * * * * * * * * * * * * * * * *
For Case No. 206: Order reversed, with costs, and order of Supreme Court, Kings County, reinstated. Opinion by Judge Smith. Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones concur.
For Case No. 207: Order reversed, with costs, defendants' motion for judgment as a matter of law denied, and case remitted to the Appellate Division, Second Department, for consideration of issues raised but not determined on the appeal to that court.
Opinion by Judge Smith. Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones concur.
For Case No. 208: Order affirmed, with costs. Opinion by Judge Smith. Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones concur.
Decided November 22, 2011

Progressive Northeastern Ins. Co. v. Penn-Star Ins. Co.

Miranda Sambursky Slone Sklarin Verneniotis, LLP, Mineola
(Steven Verveniotis of counsel), for appellant.
Carman, Callahan & Ingham, LLP, Farmingdale (Michael F.
Ingham of counsel), for respondent.

Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or about August 30, 2010, which granted plaintiff's motion for summary judgment, denied defendant Penn-Star Insurance Company's cross motion for summary judgment, and declared that defendant is obligated to defend and indemnify A#1 Pelham Corporation in the underlying personal injury action and to reimburse plaintiff for any costs it has incurred in the defense of the underlying action, unanimously affirmed, with costs.

In this action for a declaratory judgment in an insurance coverage dispute, arising from a slip and fall on oil which occurred in the basement boiler room of a residential building one day after the insured's oil delivery truck delivered oil to the building, the motion court correctly found that the general automobile policy issued to the insured by plaintiff does not provide coverage for the underlying personal injury action. Defendant's argument that the automobile policy was implicated simply because the oil was transported in a covered vehicle is unpersuasive (see Wausau Underwriters Ins. Co. v St. Barnabas Hosp., 145 AD2d 314, 315 [1988]; see also Zaccari v Progressive Northwestern Ins. Co., 35 AD3d 597, 599-600 [2006]).

Defendant's argument regarding the implication of its own automobile exclusion clause is, for the same reasons, unpersausive. Neither do the facts of this case implicate the policy's exclusion from products-completed operations hazard coverage for "[w]ork that has not yet been completed or abandoned," in as much as the slip-and-fall accident occurred one day after the insured made the oil delivery.

Finally, summary judgment was not premature. Defendant has failed to present any "evidentiary basis [for its] suggest[ion] that discovery may lead to relevant evidence" (Bailey v New York City Tr. Auth., 270 AD2d 156, 157 [2000]). Further, under the circumstances of this case, plaintiff's counsel was entitled to rely on his affidavit in support of plaintiff's motion for summary judgment (see Zuckerman v New York, 49 NY2d 557, 563 [1980]).

Rissew v. Smith

Appeal from an order of the Supreme Court, Monroe County (David Michael Barry, J.), entered September 30, 2010 in a personal injury action. The order, insofar as appealed from, denied the motion of defendants for summary judgment.

Mura & Storm, PLLC, Buffalo (Kris E. Lawrence of Counsel), for Defendants-Appellants.
Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiffs-Respondents.

It is hereby ORDERED that the order so appealed from is modified on the law by granting the motion in part and dismissing the complaint, as amplified by the bill of particulars, with respect to the permanent consequential limitation of use and significant limitation of use categories of serious injury within the meaning of Insurance Law § 5102 (d) and as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Michael Rissew (plaintiff) when the motor vehicle operated by plaintiff collided with a vehicle owned by defendant Trishia Barker and operated by defendant Mark L. Smith. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of the three categories alleged in the complaint, as amplified by the bill of particulars, and Supreme Court denied defendants' motion.
We agree with defendants that the court erred in denying those parts of the motion with respect to the permanent consequential limitation of use and significant limitation of use categories of serious injury. Defendants met their initial burden on the motion by submitting, inter alia, "[two] affirmed report[s] of a physician who examined plaintiff . . . and concluded that there was no objective evidence that plaintiff sustained a serious injury as a result of the accident" (Lauffer v Macey, 74 AD3d 1826, 1827). In opposition to the motion, plaintiffs failed to raise a triable issue of fact whether plaintiff sustained a serious injury under those two categories (see generally Zuckerman v City of New York, 49 NY2d 557, 562). We therefore modify the order accordingly.
We further conclude, however, that the court properly denied the motion with respect to the 90/180-day category of serious injury. Although defendants established their entitlement to judgment as a matter of law with respect to that category (see generally id.), plaintiffs submitted evidence raising a triable issue of fact whether plaintiff sustained a qualifying injury or impairment thereunder (see Nitti v Clerrico, 98 NY2d 345, 357). Specifically, plaintiffs submitted the affidavit and records of plaintiff's chiropractor demonstrating, inter alia, that plaintiff sustained a loss of range of motion in his cervical and lumbar spine and localized edema in his cervical spine and muscle spasms,and the detection of spasms through cervical palpation constitutes medically objective evidence of plaintiff's injury (see id.; Pugh v DeSantis, 37 AD3d 1026, 1028). Plaintiffs also established that plaintiff was unable to perform substantially all of his customary and usual activities for not less than 90 days during the 180 days immediately following the accident at issue (see generally Herbst v Marshall [appeal No. 2], 49 AD3d 1194, 1196).
All concur except Martoche, J., who dissents in part and votes to reverse the order insofar as appealed from in accordance with the following Memorandum: I respectfully dissent in part and would reverse the order insofar as appealed from, grant defendants' motion and dismiss the complaint. I agree with the majority that Supreme Court erred in denying those parts of defendants' motion with respect to the permanent consequential limitation of use and significant limitation of use categories of serious injury. As the majority properly notes, defendants met their initial burden of establishing that there was no objective evidence that Michael Rissew (plaintiff) sustained a serious injury as a result of the accident within the meaning of those two categories (see Lauffer v Macey, 74 AD3d 1826, 1827). I further agree with the majority that, in opposition, plaintiffs failed to raise a triable issue of fact to defeat those parts of defendants' motion.
I cannot agree with the majority, however, that plaintiffs raised an issue of fact to defeat that part of defendants' motion with respect to the 90/180-day category of serious injury. The majority concludes, and I agree, that defendants met their initial burden by establishing their entitlement to judgment as a matter of law with respect to that category, but the majority further concludes that plaintiffs submitted evidence raising a triable issue of fact whether plaintiff sustained a qualifying injury or impairment under that category. In my view, the majority's reliance on Nitti v Clerrico (98 NY2d 345) is misplaced. There, the Court of Appeals concluded that, "[a]lthough medical testimony concerning observations of a spasm can constitute objective evidence in support of a serious injury, the spasm must be objectively ascertained" (id. at 357). I cannot agree with the majority that the spasm in this case was objectively ascertained by plaintiff's chiropractor. Although the chiropractor indicated that he detected the spasm through "palpation," he did not identify any diagnostic technique that he used to induce the spasm (see MacMillan v Cleveland, 82 AD3d 1388, 1391 [Mercure, J., dissenting, in which Malone, Jr., J. concurs]; see also Tuna v Babendererde, 32 AD3d 574). Indeed, the dissenters in MacMillan (id. at 1392) properly note that the Court of Appeals has held "that a spasm is not considered objective evidence of an injury absent further evidence that the spasm was objectively ascertained,' such as evidence of the test performed to induce the spasm [internal citation omitted]." Here, the chiropractor's affidavit indicated that one MRI showed that plaintiff had disc bulges at numerous locations in the lumbar spine and that another MRI showed a " disc bulge osteophyte complex and disc dessication most prominent at C5-C6' " in the cervical spine, but the chiropractor did not explicitly state that plaintiff's loss of range of motion was caused by those disc bulges or by any other objective condition (see Lauffer, 74 AD3d at 1827), nor did he address the opinion of defendants' expert that the MRI showed that plaintiff had a degenerative disc condition unrelated to the car accident (see Caldwell v Grant [appeal No. 2], 31 AD3d 1154, 1155). Thus, although the chiropractor "provided numeric percentages of plaintiff's loss of range of motion as well as qualitative assessments of plaintiff's condition" (Leahey v Fitzgerald, 1 AD3d 924, 926), the expert "did not relate the loss of [range of motion] to the [MRI results] or any other objective finding" (Beaton v Jones, 50 AD3d 1500, 1502). Moreover, plaintiff's chiropractor did not explain why plaintiff's symptoms should be attributed to injuries sustained in the accident and not to the preexisting degenerative disc condition. Thus, to the extent that plaintiff's chiropractor concluded that plaintiff's symptoms were caused by the accident, that conclusion is both speculative and conclusory (see Innocent v Mensah, 56 AD3d 379, 380).
I further note that, to the extent the majority believes that the affidavit of plaintiff's chiropractor raised an issue of fact by providing objective evidence of a medically determined injury with respect to the 90/180-day category, then the affidavit must necessarily also have satisfied plaintiffs' burden concerning the other categories of serious injury that the majority concludes should have been dismissed as a matter of law because there was no evidence of an objective injury. Indeed, in his affidavit plaintiff's chiropractor opined to a reasonable degree of medical certainty that plaintiff sustained a serious injury under those two other categories of serious injury. Thus, in my view, the majority is choosing, in an unexplained and piecemeal manner, both to credit and reject in part the chiropractor's affidavit.
Duran v. Hoy

Kelly Rode & Kelly, LLP, Mineola (Susan M. Ulrich of counsel), for appellant.
Mitchell Dranow, Sea Cliff, for respondent.
Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered March 1, 2011, which denied defendant's motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant the part of defendant's motion that seeks dismissal of plaintiff's 90/180-day claim, and otherwise affirmed, without costs.
Defendant made a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. Defendant submitted affirmed reports of an orthopedist and neurologist reporting normal ranges of motion in all tested body areas, specifying the objective tests they used to arrive at the measurements, and
concluding that plaintiff's injuries were resolved (see De La Cruz v Hernandez, 84 AD3d 652 [2011]).
In opposition, plaintiff raised a triable issue of fact, except with respect to his 90/180-day claim. Plaintiff submitted the sworn report of his treating chiropractor who attested that he performed objective tests and found limitations in range of motion of the cervical spine both recently and shortly after the accident (see Dennis v New York City Tr. Auth., 84 AD3d 579 [2011]; Colon v Bernabe, 65 AD3d 969, 970 [2009]). The minor alterations in the report do not render it unreliable and may be explored by the parties at trial (cf. Braham v U-Haul Co., 195 AD2d 277 [1993]). Plaintiff also submitted an MRI report, which was affirmed by a radiologist, noting disc herniations in plaintiff's cervical spine, as well as the affirmed report of a neurologist who found range-of-motion limitations in plaintiff's cervical spine.
Plaintiff's 90/180-day claim should have been dismissed because he asserted in his deposition testimony and bill of particulars that he was confined to bed or home for only a few weeks after the accident (see Williams v Baldor Specialty Foods, Inc., 70 AD3d 522, 522-523 [2010]).
We have considered defendant's remaining arguments and find them unavailing.
Wetzel v. Santana

Law Offices of Andrew J. Spinnell, LLC, New York (Andrew J.
Spinnell of counsel), for appellants.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for respondents.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered March 23, 2010, which, insofar as appealed from as limited by the briefs, in this action for personal injuries sustained when plaintiff pedestrian Gerhard Wetzel was struck by defendants' vehicle as he crossed the street, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants established their entitlement to judgment as a matter of law by presenting evidence showing that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d). Defendants submitted the affirmed report of an orthopedist who examined plaintiff and found that he had normal ranges of motion in his cervical spine and that the limited ranges of motions in his lumbar spine were related to his age (see Torres v Triboro Servs., Inc., 83 AD3d 563 [2011]).
In opposition, plaintiff did not raise a triable issue of fact. Plaintiff failed to submit competent medical evidence showing either recent or contemporaneous range of motion testing. Accordingly, he failed to demonstrate a causal connection between his injuries and the accident (see Pou v E & S Wholesale Meats, Inc., 68 AD3d 446 [2009]). Although the unaffirmed report of the MRI performed upon plaintiff in November 2006 revealed the presence of herniated discs in the cervical spine, the mere existence of "bulging or herniated discs are not, in and of themselves, evidence of serious injury without competent objective evidence of the limitations and duration of the disc injury" (DeJesus v Paulino, 61 AD3d 605, 608 [2009]). The MRI also fails to support plaintiff's claims since it was taken more than two years after the accident.
Furthermore, plaintiffs' bill of particulars, wherein he alleged that he was confined to bed for two to three days after the accident, is fatal to the claim under the 90/180-day category of Insurance Law § 5102(d) (see Lopez v Eades, 84 AD3d 523 [2011]).
We have considered plaintiffs' remaining contentions and find them unavailing.
Britton v. Villa Auto Corp.

Marjorie E. Bornes, New York, for appellants.
Patrick J. Hackett, Garden City, for respondent.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered April 15, 2010, which, to the extent appealed from, denied defendants Villa Auto Corp. and Thami Boulabut's motion for summary judgment dismissing the complaint as against them on the ground that plaintiff did not suffer a "serious injury" within the meaning of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion granted, and, upon a search of the record, defendant Evanson's motion granted as well. The Clerk is directed to enter judgment dismissing the complaint against all defendants.
Defendants moved for summary judgment and made out a prima facie showing that plaintiff did not suffer a serious injury. In opposition to that motion, plaintiff offered no explanation for her failure to pursue any treatment for almost three years after the initial period of treatment that encompassed less than two months (see Pommells v Perez, 4 NY3d 566, 574 [2005]; Agramonte v Marvin, 22 AD3d 322 [2005]). In addition, although plaintiff testified that she underwent physical therapy for six months beginning a week after the accident and that she stopped going because no-fault would no longer pay her bills, there is no evidence of this treatment in the record. To the contrary, the records of Dr. Rose, plaintiff's expert, suggest that if plaintiff went to physical therapy, she stopped going less than six weeks after the accident.
Plaintiff failed to submit any competent objective medical or other evidence in support of her 90/180-day claim. Her deposition testimony established that she was confined to bed and home for less than one month after the accident (see Clemmer v Drah Cab Corp., 74 AD3d 660, 663 [2010]; Hospedales v "John Doe," 79 AD3d 536 [2010]).
Defendant Evanson did not appeal from the denial of her motion for summary judgment. Nonetheless, she is entitled to summary dismissal of the complaint as against her, since "if
plaintiff cannot meet the threshold for serious injury against one defendant, she cannot meet it against the other" (Lopez v Simpson, 39 AD3d 420 [2007]).
Lavali v. Lavali

Picciano & Scahill, P.C., Westbury (Andrea E. Ferrucci of counsel),
for Janet A. Lavali, appellant.
Majorie E. Bornes, New York, for Roman Car Service, Inc., and
Francisco R. Perez, appellants.
Raphaelson & Levine Law Firm, P.C., New York (Jason
Krakower of counsel), for respondent.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered November 5, 2010, insofar as it denied the branches of defendants' motion and cross motion for summary judgment dismissing plaintiff's claim that she sustained serious injuries under the "significant limitation of use" category of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants made a prima facie showing that plaintiff did not sustain a serious injury as a result of the subject accident by submitting the affirmed reports of their orthopedist and neurologist, who both examined plaintiff over three years after the accident, and noted full range of motion in the cervical spine, lumbar spine, and right shoulder (see Thompson v Abbasi, 15 AD3d 95, 96 [2005]). The affirmed MRI reports of the two radiologists who found mild degenerative changes and absence of disc herniations or bulges establishes prima facie lack of causation (see Depena v Sylla, 63 AD3d 504 [2009], lv denied 13 NY3d 706 [2009]).
In opposition, plaintiff's chiropractor's affidavit, together with the affirmed reports of her neurologist and physiatrists, was sufficient to raise a triable issue of fact as to injury to the cervical and lumbar spine. Plaintiff's chiropractor relied, inter alia, on contemporaneous and current range of motion tests, positive results on straight leg and other objective tests, and observation of spasms, as well as affirmed and unaffirmed medical reports (see Rubencamp v Arrow Exterminating Co., Inc., 79 AD3d 509 [2010]; Adetunji v U-Haul Co. of Wisconsin, Inc., 250 AD2d 483, 483-484 [1998]). On the issue of causation, plaintiff's expert's conclusion that plaintiff sustained serious injuries as a result of the accident is based on a physical examination of the previously asymptomatic plaintiff just days after the accident and a review of her medical records which acknowledged mild disc degeneration, and
thus is sufficient to raise an issue of fact (Yuen v Arka Memory Cab Corp., 80 AD3d 481 [2011]; see also Peluso v Janice Taxi Co., Inc., 77 AD3d 491, 493 [2010]).
Edouazin v. Champlain

Brian P. Neary, P.C., Huntington, N.Y., for appellant.
Marshall, Dennehey, Warner, Coleman & Goggin, New York,
N.Y. (Michael Gallagher and John T. Cofresi of counsel), for respondents
Theodore Champlain and Ryder Truck Rental.
Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler,
P.C., Syosset, N.Y. (Anton Piotroski of counsel), for respondents Terrence
Watts and Cove Plumbing Supply, Inc.
Cascone & Kluepfel, LLP, Garden City, N.Y. (Rendon P. Sangalang of counsel),
for respondents James C. Malico and JPM Trucking, Inc.

DECISION & ORDER
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), entered September 9, 2010, as granted the cross motion of the defendants James C. Malico and JPM Trucking, Inc., for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), denied, as academic, the alternative branch of his motion which was for summary judgment on the issue of liability against the defendants James C. Malico and JPM Trucking, Inc., and granted those branches of the separate cross motions of the defendants Terrence Watts II and Cove Plumbing Supply, Inc., and the defendants Theodore Champlain and Ryder Truck Rental, which were for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and (2) from a judgment of the same court entered September 24, 2010, which, upon the order, is in favor of the defendants Terrence Watts II and Cove Plumbing Supply, Inc., dismissing the complaint insofar as asserted against them.
ORDERED that the appeal from so much of the order as granted that branch of the cross motion of the defendants Terrence Watts II and Cove Plumbing Supply, Inc., which was for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is dismissed; and it is further,
ORDERED that the order is reversed insofar as reviewed, on the law, the cross motion of the defendants James C. Malico and JPM Trucking, Inc., and those branches of the separate cross motion of the defendants Theodore Champlain and Ryder Truck Rental, which were for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) are denied; and it is further,
ORDERED that the judgment is reversed, on the law, and that branch of the cross motion of the defendants Terrence Watts II and Cove Plumbing Supply, Inc., which was for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is denied, and the order entered September 9, 2010, is modified accordingly; and it is further,
ORDERED that the matter is remitted to the Supreme Court, Suffolk County, to determine the alternative branch of the plaintiff's motion, that branch of the separate cross motion of the defendants Theodore Champlain and Ryder Truck Rental which was for summary judgment on the issue of liability, on the merits, and that branch of the cross motion of the defendants Terrence Watts II and Cove Plumbing Supply, Inc., which was for summary judgment on the issue of liability, on the merits; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff payable by the defendants James C. Malico and JPM Trucking, Inc., the defendants Terrence Watts II and Cove Plumbing Supply, Inc., and the defendants Theodore Champlain and Ryder Truck Rental.
The appeal from so much of the order as granted that branch of the cross motion of the defendants Terrence Watts II and Cove Plumbing Supply, Inc., which was for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) must be dismissed, as the right of direct appeal from that part of the order terminated with the entry of the judgment entered September 24, 2010 (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from that portion of the order have been considered on the appeal from the judgment (see CPLR 5501[a]).
All of the defendants, in support of those branches of their respective cross motions which were for summary judgment on the issue of serious injury, relied upon, inter alia, the affirmed medical report of Dr. Robert Pearl, their expert neurologist. This report failed to eliminate a triable issue of fact, thereby preventing the defendants from meeting their prima facie burdens. Dr. Pearl examined the plaintiff on August 12, 2009, nearly three years post-accident. During his examination of the plaintiff, he noted significant limitations in the ranges of motion of the cervical and lumbar regions of the plaintiff's spine (see Grisales v City of New York, 85 AD3d 964; Torres v Torrano, 79 AD3d 1124; Mondevil v Kumar, 74 AD3d 1295).
While the defendants also relied on the affirmed medical report of Dr. Scott S. Coyne, their radiology expert, his report was also insufficient to enable the defendants to meet their prima facie burdens in this case. The plaintiff, in his bill of particulars, alleged exacerbations of preexisting injuries to the cervical and lumbar regions of his spine. While it is true that Dr. Coyne opined that the pathology he observed in the plaintiff's December 2006 MRI films was degenerative in nature and unrelated to the subject accident, the defendants failed to show that the limitations noted by Dr. Pearl were the result of a prior accident, rather than from exacerbations caused by the subject one (see Pero v Transervice Logistics, Inc., 83 AD3d 681, 682-683; Rabinowitz v Kahl, 78 AD3d 678; Washington v Asdotel Enters., Inc., 66 AD3d 880; McKenzie v Redl, 47 AD3d 775, 776).
Since the defendants failed to meet their respective prima facie burdens of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), this Court need not determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Grisales v City of New York, 85 AD3d at 965; Pero v Transervice Logistics, Inc., 83 AD3d at 683; Coscia v 938 Trading Corp., 283 AD2d 538).
In light of our determination, the matter must be remitted to the Supreme Court, Suffolk County, to determine the alternative branch of the plaintiff's motion, and those branches of the cross motions of the defendants Theodore Champlain and Ryder Truck Rental, and the defendants Terrence Watts II and Cove Plumbing Supply, Inc., which were for summary judgment on the issue of liability, on the merits (see Alvarez v Dematas, 65 AD3d 598, 600).
Kapeleris v. Riordan

Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., of counsel), for appellant.
Wittenstein & Associates, P.C., Oceanside, N.Y. (Harlan Wittenstein of counsel),
for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Saitta, J.), dated March 18, 2010, which, in effect, granted the plaintiff's motion for summary judgment on the issue of serious injury.
ORDERED that the order is affirmed, with costs.
As the proponent of a motion for summary judgment, the plaintiff had the burden of making a prima facie showing that she suffered a serious injury pursuant to Insurance Law § 5102(d) and that the injury was causally related to the accident (see Elshaarawy v U-Haul Co. of Miss., 72 AD3d 878, 881; Autiello v Cummins, 66 AD3d 1072, 1073). The plaintiff satisfied this burden by submitting her own affidavit and the affirmation of her treating neurologist, who reviewed magnetic resonance imaging films taken a few days after the accident and who first examined her about 1½ months after the accident. This evidence was sufficient to establish that, as a result of the accident, the plaintiff sustained "a medically determined injury" to the lumbar and cervical regions of her spine which prevented her from performing substantially all of her usual and customary daily activities for at least 90 of the first 180 days following the accident (Insurance Law § 5102[d]; see Refuse v Magloire, 83 AD3d 685, 685; Elshaarawy v U-Haul Co. of Miss., 72 AD3d at 881; Rasporskaya v New York City Tr. Auth., 73 AD3d 727; Ellithorpe v Marion, 34 AD3d 1195, 1197).
In opposition, the defendant failed to raise a triable issue of fact as to whether the plaintiff sustained a serious injury within the 90/180-day category of serious injury under Insurance Law § 5102(d) as a result of the accident. The defendant's radiologist, who did not examine the plaintiff and who based his findings entirely on a review of X-rays and CT-scans taken about six months after the accident, failed to relate his findings to the plaintiff's serious injury claims under the 90/180-day category for the period of time immediately following the accident, which claims were clearly set forth in the plaintiff's bill of particulars and deposition transcript (see Refuse v Magloire, 83 AD3d at 685; see also Udochi v H & S Car Rental Inc., 76 AD3d 1011, 1012; Jensen v Nicmanda Trucking, Inc., 47 AD3d 769, 769-770; Bozza v O'Neill, 43 AD3d 1094, 1096; Volpetti v Yoon Kap, 28 AD3d 750, 751; cf. Rasporskaya v New York City Tr. Auth., 73 AD3d 727; Elshaarawy v U-Haul Co. of Miss., 72 AD3d at 881; DeMarchi v Martinez, 224 AD2d 651, 651-652). Accordingly, the Supreme Court properly, in effect, granted the plaintiff's motion for summary judgment on the issue of serious injury.
Nour v. Klein

Law Offices of Paul Bryan Schneider, P.C., Melville, N.Y., for appellant.
Russo, Keane & Toner, LLP, New York, N.Y. (Tina Altinel Profita of counsel),
for respondent.

DECISION & ORDER
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Rothenberg, J.), dated April 2, 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.
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 papers the defendant submitted failed to adequately address the plaintiff's claim, set forth in the bill of particulars, that the plaintiff sustained a medically determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see DeVille v Barry, 41 AD3d 763, 763-764).
Since the defendant did not sustain his prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (id.).
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.
Stewart v. Perez

Elovich & Adell, Long Beach, N.Y. (Darryn Solotoff and Mitchel
Sommer of counsel), for appellants.
Robert P. Tusa, Garden City, N.Y. (Donald W. Sweeney of counsel),
for respondent Alberto Perez.
Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel),
for respondents Sue Jun-Om and Jong-Hoon Om.

DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Satterfield, J.), dated January 26, 2010, as granted the motion of the defendants Sue Jun-Om and Jong-Hoon Om and that branch of the cross motion of the defendant Alberto Perez which were for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiff Godfrey Stewart did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and the motion of the defendants Sue Jun-Om and Jong-Hoon Om and that branch of the cross motion of the defendant Alberto Perez which were for summary judgment dismissing the complaint insofar as asserted against each of them are denied.
The defendants Sue Jun-Om and Jong-Hoon Om (hereinafter together the Oms) and the defendant Alberto Perez failed to meet their prima facie burdens of showing that the plaintiff Godfrey Stewart (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The papers submitted by the Oms and Perez failed to adequately address the plaintiffs' claim, set forth in the bill of particulars, that the injured plaintiff sustained a medically determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Mugno v Juran, 81 AD3d 908). The defendants' examining physicians did not relate any of their findings to this category of serious injury for the period of time immediately following the subject accident (see Takaroff v A.M. USA, Inc., 63 AD3d 1142, 1143). In addition, the Oms and Perez provided no evidence supporting their assertion that during the 180 days immediately following the accident, the injured plaintiff's injuries or condition did not "curtail[]" the injured plaintiff "from performing his usual activities to a great extent" (Licari v Elliott, 57 NY2d 230, 236).
Since the Oms and Perez did not sustain their prima facie burdens, it is unnecessary to determine whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see Mugno v Juran, 81 AD3d at 909).
Accordingly, the Supreme Court should have denied the Oms' motion and that branch of Perez's cross motion which were for summary judgment dismissing the complaint.
Swensen v. MV Transportation, Inc.

Zaklukiewicz Puzo & Morrissey, LLP, Islip Terrace, N.Y. (Daniel
E. Furshpan of counsel), for appellants.
Laurence Jeffrey Weingrad, New York, N.Y., for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants MV Transportation, Inc., and Jeffrey Salley appeal from an order of the Supreme Court, Kings County (Rothenberg, J.), dated June 4, 2010, which granted the plaintiff's motion to vacate an order of the same court entered February 25, 2009, granting their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), upon the plaintiff's default in opposing the motion.
ORDERED that the order is affirmed, with costs.
To vacate his default in opposing the motion of the defendants MV Transportation, Inc., and Jeffrey Salley (hereinafter together the appellants), the plaintiff was required to demonstrate a reasonable excuse for the default in opposing the motion and a potentially meritorious opposition to the motion (see CPLR 5015[a][1]; Ogunmoyin v 1515 Broadway Fee Owner, LLC, 85 AD3d 991; Legaretta v Ekhstor, 74 AD3d 899; Rivera v Komor, 69 AD3d 833; Nowell v NYU Med. Ctr., 55 AD3d 573). The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion (see White v Incorporated Vil. of Hempstead, 41 AD3d 709, 710), and the Supreme Court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where that claim is supported by a "detailed and credible" explanation of the default or defaults at issue (Henry v Kuveke, 9 AD3d 476, 479).
Here, the plaintiff's counsel provided a detailed and credible explanation for his default in this matter, which included various acts of misconduct and deception by his former associate attorney who worked on the plaintiff's matter. The plaintiff also demonstrated a potentially meritorious opposition to the appellants' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). In support of his motion to vacate, the plaintiff relied on, inter alia, the affirmed medical report of the appellants' own examining neurologist who, upon examining the plaintiff on October 24, 2007, almost four years post-accident, found significant limitations in the range of motion in the cervical region of the plaintiff's spine and a significant limitation in the range of motion in the lumbar region of the plaintiff's spine (see Artis v Lucas, 84 AD3d 845; Ortiz v Orlov, 76 AD3d 1000, 1001; Cheour v Pete & Sals Harborview Transp., Inc., 76 AD3d 989; Smith v Hartman, 73 AD3d 736; Leopold v New York City Tr. Auth., 72 AD3d 906). While this neurologist suggested that the limitations noted were subjective in nature, he failed to explain or substantiate the basis for his conclusion that the noted limitations were self-imposed with any objective medical evidence (see Artis v Lucas, 84 AD3d at 845; Iannello v Vazquez, 78 AD3d 1121; Granovskiy v Zarbaliyev, 78 AD3d 656; cf. Perl v Meher, 74 AD3d 930; Bengaly v Singh, 68 AD3d 1030, 1031; Moriera v Durango, 65 AD3d 1024, 1024-1025; Torres v Garcia, 59 AD3d 705, 706; Busljeta v Plandome Leasing, Inc., 57 AD3d 469).
Thus, contrary to the appellants' contention, the Supreme Court providently exercised its discretion in granting the plaintiff's motion to vacate his default.
Valera v. Singh

Harmon, Linder, & Rogowsky, New York, N.Y. (Mitchell Dranow of counsel),
for appellants.
Novins O'Leary & Associates, Melville, N.Y. (Marina
O'Leary of counsel), for defendant third-party plaintiff-respondent.
Kaplan, Hanson, McCarthy, Adams, Finder & Fishbein,
Lake Success, N.Y. (Alex Fooksman of counsel), for third-party
defendant-respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Nelson, J.), dated March 11, 2010, as granted the motion of the defendant third-party plaintiff, and that branch of the cross motion of the third-party defendant, which were for summary judgment dismissing the complaint on the ground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and denied, as academic, their motion for summary judgment on the issue of liability against the defendant third-party plaintiff.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
Contrary to the plaintiffs' assertion, the defendant third-party plaintiff and the third-party defendant met their prima facie burdens of showing on their respective motion and cross motion that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiffs failed to raise a triable issue of fact.
The plaintiffs failed to raise a triable issue of fact as to whether either one of them sustained a serious injury under the permanent loss, the permanent consequential limitation of use, or the significant limitation of use categories of Insurance Law § 5102(d), since they failed to set forth any objective medical findings from a recent examination (see Rovelo v Volcy, 83 AD3d 1034; Jean v Labin-Natochenny, 77 AD3d 623; Clarke v Delacruz, 73 AD3d 965; Kin Chong Ku v Baldwin-Bell, 61 AD3d 938; Diaz v Lopresti, 57 AD3d 832, 832-833; Soriano v Darrell, 55 AD3d 900, 900-901; Mejia v DeRose, 35 AD3d 407; Diaz v Wiggins, 271 AD2d 639, 640; Kauderer v Penta, 261 AD2d 365, 366; Marin v Kakivelis, 251 AD2d 462, 463).
The plaintiffs further failed to raise a triable issue of fact as to whether their respective injuries prevented them from performing substantially all of their usual and customary daily activities during at least 90 of the first 180 days following the subject accident (see McLoud v Reyes, 82 AD3d 848; Roman v Fast Lane Car Serv., Inc., 46 AD3d 535; Sainte—Aime v Ho, 274 AD2d 569). The plaintiff Gabriel Valera testified at his deposition that he missed, at most, one to two days of work as a result of the accident, and the plaintiff Ani Valera testified at her deposition that she missed no time from work as a result of the accident.
The plaintiffs' remaining contention has been rendered academic in light of our determination.
Diakite v. Soderstrom

John C. Buratti & Associates, New York (John C. Buratti of
counsel), for appellants.
Krentsel & Guzman, LLP, New York (Steven E. Krentsel of
counsel), for respondent.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered March 23, 2011, which, to the extent appealed from, denied defendants' motion for summary judgment dismissing plaintiff's claims of serious injury of a permanent nature, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.
Defendants established prima facie that plaintiff did not sustain a serious injury of a permanent nature by submitting plaintiff's medical records and the affirmed reports of medical experts who, upon examination, found that plaintiff had active mobility of his left shoulder and had recovered from the 2009 vehicular accident without any disability. In opposition, plaintiff failed to raise a triable issue of fact. The limitation in range of motion in his left shoulder found by his treating physician in November 2010 was insufficient to qualify as "significant," given the otherwise normal shoulder findings. Moreover, one year earlier the physician had found "active mobility of [plaintiff's] left shoulder with no significant pain," and yet no explanation was offered for the more recent finding of limitation (see Insurance Law § 5102[d]; Jno-Baptiste v Buckley, 82 AD3d 578 [2011]).
We have reviewed plaintiff's remaining contentions and find them unavailing.

Interboro Insurance Company v. Fatmir

Mark E. Weinberger, P.C., Rockville Centre, N.Y. (Marc J.
Musman of counsel), for appellant.
Bee Ready Fishbein Hatter & Donovan, LLP, Mineola, N.Y.
(Evelyn F. Gross of counsel), for
respondent.


DECISION & ORDER
In an action for a judgment declaring that the plaintiff has no duty to defend and indemnify the defendant Miruku Fatmir in connection with a claim by the defendant Flori Silvestro for personal injuries arising out of an incident allegedly occurring on April 8, 2008, the defendant Flori Silvestro appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered November 18, 2010, as, upon an order of the same court dated September 22, 2010, granting that branch of the plaintiff's motion which was for summary judgment declaring that it has no duty to defend and indemnify the defendant Miruku Fatmir in connection with a claim by the defendant Flori Silvestro for personal injuries arising out of an incident allegedly occurring on April 8, 2008, declared that the plaintiff is not so obligated.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.
To establish the right to rescind an insurance policy, an insurer must show that its insured made a material misrepresentation of fact when he or she secured the policy (see Novick v Middlesex Mut. Assur. Co., 84 AD3d 1330; Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d 855, 856; Schirmer v Penkert, 41 AD3d 688, 690; Zilkha v Mutual Life Ins. Co. of N.Y., 287 AD2d 713, 714). A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented (see Insurance Law § 3105[b]; Novick v Middlesex Mut. Assur. Co., 84 AD3d at 1330; Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d at 856). "To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application" (Schirmer v Penkert, 41 AD3d at 690-691).

Here, the plaintiff insurance company established its prima facie entitlement to judgment as a matter of law by demonstrating that its insured made misrepresentations in his application for homeowner's insurance, and that it would not have issued the subject policy had the insured disclosed that he did not reside in the subject premises because dwellings that are not owner occupied are deemed an unacceptable risk under its underwriting guidelines (see Varshavskaya v [*2]Metropolitan Life Ins. Co., 68 AD3d at 856). In opposition, the appellant failed to raise a triable issue of fact. Although the appellant argued in opposition that the plaintiff failed to timely disclaim coverage pursuant to Insurance Law § 3420(d), a disclaimer pursuant to Insurance Law § 3420(d) was not required because the policy only provided liability coverage to the insured for premises which he and his household occupied for residential purposes and, thus, "the policy never provided coverage" for the claim at issue (Metropolitan Prop. & Cas. Ins. Co. v Pulido, 271 AD2d 57, 60; see generally Zappone v Home Ins. Co., 55 NY2d 131, 138). While the plaintiff did not argue in the Supreme Court that a disclaimer was not required, "[o]n appeal, a respondent may [as here] proffer in support of affirmance any legal argument that may be resolved on the record, regardless of whether it has been argued previously, if the matter is one which could not have been countered by the appellant had it been raised in the trial court" (Sega v State of New York, 60 NY2d 183, 190 n 2; see Stephan B. Gleich & Assoc. v Gritsipis, 87 AD3d 216; Buywise Holding, LLC v Harris, 31 AD3d 681, 682).

MESLER v PODD LLC

Appeals and cross appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), entered May 26, 2010 in a personal injury action. The order, inter alia, denied the motion of defendants Weight Watchers International, Inc. and Weight Watchers North America, Inc. for summary judgment and denied the cross motion of plaintiffs for partial summary judgment.

LIPPMAN O'CONNOR, BUFFALO (GERARD E. O'CONNOR OF COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT JJK MANAGEMENT, INC.
FELDMAN KIEFFER, LLP, BUFFALO (STEPHEN M. SORRELS OF COUNSEL), FOR DEFENDANTS-APPELLANTS-RESPONDENTS WEIGHT WATCHERS INTERNATIONAL, INC., AND WEIGHT WATCHERS NORTH AMERICA, INC.
PAUL WILLIAM BELTZ, P.C., BUFFALO (DEBRA A. NORTON OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS-APPELLANTS.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion of defendants Weight Watchers International, Inc. and Weight Watchers North America, Inc. for summary judgment and dismissing the amended complaint against them and as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Dana Mesler (plaintiff) when he slipped and fell on an icy sidewalk in front of a Weight Watchers location in a shopping center owned by defendant-third-party plaintiff BG BCF, LLC and managed by defendant-third-party plaintiff Developers Diversified Realty Corporation (collectively, DDRC defendants). We first address appeal No. 2, wherein the DDRC defendants moved for a conditional order of indemnification against defendant-third-party defendant, JJK Management, Inc. (JJK), and sought additional relief in the alternative. Also in appeal No. 2, JJK cross-moved for summary judgment dismissing the amended complaint in the main action against it. We agree with JJK that the court erred in granting that part of the DDRC defendants' motion for a conditional order of indemnification and in denying JJK's cross motion. We note at the outset that JJK's notice of appeal recites that it is from the order in appeal No. 2 insofar as it denied JJK's cross motion, but it does not reference the order insofar as it granted in part the motion of the DDRC defendants. We note, however, that the brief of the DDRC defendants on appeal addresses their motion despite the omission of a reference to it in JJK's notice of appeal. Thus, "there is no indication on this record that [the DDRC defendants are] prejudiced by that omission, [and] we exercise our discretion to reach beyond the scope of [the] notice of . . . appeal and address the merits of [this] issue[]" (Camperlino v Town of Manlius Mun. Corp., 78 AD3d 1674, 1675, lv dismissed 17 NY3d 734 [internal quotation marks omitted]).
The Service/Materials Agreement (agreement), whereby defendant-third-party plaintiff Developers Diversified Realty Corporation, on behalf of defendant-third-party plaintiff BG BCF, LLC, contracted with JJK for snow removal and salting services, requires that JJK indemnify the DDRC defendants for liabilities and costs that are "caused in whole or in part by the negligent or intentional act or omission" of JJK employees. Thus, "the contract for snow removal services required [JJK] to indemnify [the DDRC defendants] only in the event that [JJK] was negligent in the performance of the contract and, contrary to [the DDRC defendants'] contention, there are triable issues of fact with respect thereto" (Walter v United Parcel Serv., Inc., 56 AD3d 1187, 1188). The DDRC defendants were also required to establish that they were free from negligence (see generally General Obligations Law § 5-322.1; Bellefleur v Newark Beth Israel Med. Ctr., 66 AD3d 807, 808), and they failed to establish as a matter of law that they did not "cause[ or] allow[ ] a dangerous condition to exist," as alleged in the amended complaint. The conditional order of indemnification therefore is premature for that reason as well (see Bellefleur, 66 AD3d at 808-809). Because the court did not reach the alternative argument in the DDRC defendants' motion that they are entitled to damages based on JJK's failure to procure liability insurance required by the agreement, we remit the matter to Supreme Court to decide that part of the motion.
With respect to JJK's cross motion for summary judgment dismissing the amended complaint in the main action against it, we note the general rule that "a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" (Espinal v Melville Snow Contrs., 98 NY2d 136, 138). An exception to that general rule as alleged in the amended complaint and plaintiffs' bills of particulars is "where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launche[s] a force or instrument of harm' " (id. at 140; see Foster v Herbert Slepoy Corp., 76 AD3d 210, 213-214). Here, even assuming, arguendo, that JJK was negligent in failing to salt the sidewalk, we conclude that such negligence would "amount[] to a finding that [JJK] may have merely failed to become an instrument for good,' which is insufficient to impose a duty of care upon a party not in privity of contract with the injured party" (Bauerlein v Salvation Army, 74 AD3d 851, 856; see Church v Callanan Indus., 99 NY2d 104, 111-112).
In appeal No. 1, Weight Watchers International, Inc. and Weight Watchers North America, Inc. (collectively, Weight Watchers defendants) appeal and plaintiffs cross-appeal from an order denying the Weight Watchers defendants' motion for summary judgment dismissing the amended complaint against them and denying plaintiffs' cross motion for partial summary judgment on the issue of notice of a hazardous condition or the affirmative creation of that condition. We agree with the Weight Watchers defendants that the court erred in denying their motion. Although a 1992 lease agreement imposed on the Weight Watchers defendants a duty "to cause the sidewalks adjacent to [the leased p]remises to be kept free of snow, ice, rubbish and merchandise," that provision was modified in writing prior to plaintiff's fall by "deleting the words snow' and ice' " (cf. Figueroa v Tso, 251 AD2d 959; see generally Gauthier v Super Hair, 306 AD2d 850, 851). We reject plaintiffs' contention that the occasional snow removal measures taken by employees of the Weight Watchers defendants are sufficient to establish control over the sidewalk (see Figueroa, 251 AD2d 959). In light of our conclusions in appeal Nos. 1 and 2 that the Weight Watchers defendants and JJK are entitled to summary judgment dismissing the amended complaint against them, we see no need to address the remaining contentions in appeal No. 1.
Finally, with respect to the cross appeal, we conclude that the court properly denied plaintiffs' cross motion for partial summary judgment. Contrary to plaintiffs' contention, the legal argument made by counsel for the DDRC defendants, i.e., that "the [deposition] testimony supports the conclusion, as a matter of law, that the subject walkway was not salted on the day of the accident," is not a statement of fact "made with sufficient formality [or] conclusiveness" to constitute a judicial admission (State of New York ex rel. H. v P., 90 AD2d 434, 439 n 4; cf. Catanese v Lipschitz, 44 AD2d 579). Further, although the deposition testimony of a regional property manager for defendant-third-party plaintiff Developers Diversified Realty Corporation supports the conclusion that the corporation was aware that precipitation would run off the curved roof of the shopping plaza and collect in the grooves on the handicap ramp in the sidewalk where plaintiff fell, plaintiffs failed to establish as a matter of law that the ice on which plaintiff fell was in fact caused by that runoff (see generally Carpenter v J. Giardino, LLC, 81 AD3d 1231,

K.J.D.E. CORP. v  THE HARTFORD FIRE INSURANCE COMPANY

Appeal from a judgment (denominated order) of the Supreme Court, Onondaga County (James P. Murphy, J.), entered July 16, 2010. The judgment, inter alia, granted the cross motion of plaintiffs for partial summary judgment.

GOLDBERG SEGALLA LLP, BUFFALO (DANIEL W. GERBER OF COUNSEL), FOR DEFENDANT-APPELLANT.
RICHARD P. PLOCHOCKI, SYRACUSE, FOR PLAINTIFFS-RESPONDENTS.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs, the cross motion is denied and the declaration is vacated.
Memorandum: In appeal No. 1, The Hartford Fire Insurance Company (defendant) appeals from a judgment granting plaintiffs' cross motion for partial summary judgment on the fourth cause of action, for breach of the insurance policy in question, and the fifth cause of action, seeking a declaration that plaintiffs' losses are covered losses under the insurance policy in question. In appeal No. 2, defendant appeals from an order that, inter alia, denied those parts of its motion for summary judgment dismissing the fourth and fifth causes of action. We note that, although defendant purports to appeal "from each and every part" of the order in appeal No. 2, it is not aggrieved by those parts of the order granting its motion in part and thus may not appeal therefrom (see CPLR 5511). We reverse the judgment in appeal No. 1 and the order insofar as appealed from in appeal No. 2.
Plaintiffs K.J.D.E Corp., doing business as K.J. Electric, and the Rita Jacobs Trust, by Kenneth Jacobs, Trustee, were the lessee and owner, respectively, of a parcel of property located in Binghamton, New York. During a storm in 2006, almost seven inches of rain fell in Binghamton, and the property flooded. Shortly after the storm, plaintiffs submitted a claim to defendant for damages caused by the flooding. Defendant investigated the claim and concluded that the flooding was caused by a creek that overflowed as the result of heavy rains and road culverts that were blocked by a build up of debris. Defendant sent plaintiffs a letter disclaiming coverage because the damage to the property was caused by a flood and thus the damage fell within the flood exclusion clause of the policy.
Plaintiffs commenced this action seeking, inter alia, damages based on defendant's alleged breach of the insurance policy and a declaration that their losses were covered under the policy. Addressing first appeal No. 2, we conclude that defendant met its initial burden on the motion by establishing that the damage to plaintiffs' property was caused by flooding (see B & W Heat Treating Co., Inc. v Hartford Fire Ins. Co., 23 AD3d 1102; Casey v General Acc. Ins. Co., 178 AD2d 1001, 1002). "Flood" is defined in the policy, in relevant part, as "[s]urface water . . . or overflow of any natural or man[-]made body of water from its boundaries . . . ." Here, plaintiffs' assertion that the source of the water that caused the flooding was a clogged culvert "does not raise the requisite issue of fact to defeat the . . . motion" (B & W Heat Treating Co., Inc., 23 AD3d at 1103). We reject plaintiffs' contention that the terms of the flood exclusion clause contained in the policy are ambiguous (see generally Rhinebeck Bicycle Shop v Sterling Ins. Co., 151 AD2d 122, 126). We also reject plaintiffs' contention that defendant failed to submit proof in admissible form to support its motion. Even assuming, arguendo, that the documents submitted by defendant in support of the motion did not qualify as business records pursuant to CPLR 4518 (a), we conclude that the record contains sufficient evidence establishing that the cause of the flooding was heavy rain over a two-day period in the Binghamton area and that the property was damaged by the overflow of surface water.
In light of our determination with respect to appeal No. 2, we conclude in appeal No. 1 that Supreme Court erred in granting plaintiffs' cross motion for partial summary judgment on the fourth and fifth causes of action and in declaring that plaintiffs' losses are covered losses under the insurance policy.
Entered: November 18, 2011
Decided on November 22, 2011
Tkeshelashvili v State of New York

G. Michael Simmon, for appellants.
Robert M. Goldfarb, for respondent.
READ, J.:
On a sunny late summer's afternoon -— the Saturday of Labor Day weekend in 2005 —- claimant Mikhail Tkeshelashvili, his wife and children and two male friends went on an outing to Colgate Lake, located in the Town of Jewett [FN1] in Greene County. Colgate Lake formed following construction in 1887 of Colgate Lake Dam, a log crib and stone masonry structure, to supply water power for a saw mill at a time when logging was a major industry in the area [FN2]. The length of the 15-foot high dam was 275 feet, with two spillways. These spillways were roughly three feet below the dam's crest, and the top of the spillways was, in turn, no more than four feet above the lakebed, which was level for several feet in front of the spillway's face before gradually dropping away to the deepest part of the lake.
Colgate Lake is a quite shallow 26-acre body of water, with a mean depth of 4.6 feet and a maximum depth of 10 feet. It is fed only by the natural water runoff from the surrounding watershed. As a result, the lake's water level fluctuates seasonally depending on snowmelt and rainfall amounts: in times of relative drought, and especially during summer months, the lake recedes, but when runoff was abundant, as in the spring, water would flow over the dam's spillway. And because of its age and method of construction, the dam leaked, prompting citizen complaints and periodic repairs to the dam's impoundment or lake face: lower water levels made the lake less desirable for recreation and less aesthetically appealing, as the water would take on a brownish cast.
Colgate Lake and its environs, acquired by the State of New York in 1975, is situated in a portion of the Catskill Park Forest Preserve designated as "wild forest."[FN3] Among the four classifications of State land in the Preserve, "wild forest" is the second most pristine. As required by Article XIV of the New York Constitution, these lands are open to the public, but infrastructure and amenities are minimal so as to "protect the natural wild forest setting and to provide those types of outdoor recreation that the public can enjoy without impairing the wild forest atmosphere or changing the character of fragile areas within wild forest boundaries." Thus, other than parking lots and a connecting foot trail, Colgate Lake was undeveloped and unsupervised in 2005: there was no beach (only a grassy, open field on the edge of the lake nearest the parking lot), no designated swimming area, no lifeguards or other staff, no flush toilets (there was one privy) and no showers.
Claimant and his family made more than 20 day trips to Colgate Lake during 2005 and the preceding five years. Indeed, he could not recall exactly how many times he had visited the lake "because [there were] a lot of times." On September 4, 2005, claimant entered the water by diving from the dam's eastern spillway in the same manner as in his many past visits. He climbed onto the dam, removed his shirt and flip flops, jumped onto the spillway and "did not stop at all" before plunging into the water headfirst, with his arms outstretched over his head, attempting to dive flat and skim the water roughly parallel to the bottom of the lake. This time, though, he struck his head on the lakebed, suffering a spinal cord injury that rendered him quadriplegic. Claimant was 43 years old, 5 feet 8 inches tall and weighed 170 pounds.
Claimant acknowledged that on past visits to Colgate Lake he had observed the water flowing over the spillway, while at other times the water was below the spillway's top. He testified at his deposition that he knew the water was below the spillway on September 4, 2005, but had "no clue" how deep the water was because it was too murky for him to see the bottom. Photographs taken by an investigator from the New York State Department of Environmental Conservation (DEC) three days after claimant's accident show the water level to be perhaps two feet below the top of the eastern spillway, which means that the water was about two feet deep at the spillway's face on the impoundment or lake side. These photographs were taken the same time of day as claimant's accident occurred, and under similar sunny weather conditions. This shallowness is confirmed by the deposition testimony of one of claimant's friends, who dove in after him and hit his hands on the lake's stone bottom, bruising his palms. When he stood up, the "water was a little over [his] knees," but much deeper after "one or two steps."
Lois Keegan, who witnessed claimant's ill-fated dive, described what happened:
"I saw people, three gentlemen in their thirties, being loud, and laughing, approaching the spillway . . . [then] one man who I later learned was [claimant], remove[d] his shirt and enter[ed] the water. This man didn't hesitate, he walked right to the edge of the spillway, pulled his shirt off, and dove headfirst into the water. I thought this was unusual, because the water is shallow. After diving, the man surfaced, but I noticed he didn't lift his head."

Ms. Keegan sensed something was amiss, so she "asked the other men if their friend was ok, but they disregarded my questions, finally the skinny man said, 'He's just playing!' I knew something was wrong."
Ms. Keegan's boyfriend, Jay Ward, a certified National Ski Patrolman trained in outdoor emergency care, jumped into the water at her urging and swam out to claimant, who had floated into deeper water. Mr. Ward turned claimant over in the water, stabilized his neck and back and brought him to shore to await rescue personnel. The emergency crew arrived quickly, and claimant, who had little or no sensation in his extremities, was airlifted by helicopter to Albany Medical Center.
Claimant and his wife, suing derivatively (collectively, "claimants"), filed this claim for damages, alleging that the State negligently failed to maintain Colgate Lake and Colgate Lake Dam in a reasonably safe condition. Claimants theorized that the State was liable because the water level at Colgate Lake was prone to drop due to leaks in the dam, and "the State took no steps to warn visitors who swam and dived into Colgate Lake about the danger of lowered water levels caused by the leak."
In May 2008, claimants moved for summary judgment on the issue of liability, and the State moved for summary judgment dismissing the claim. The Court of Claims, by order entered October 6, 2008, ruled in the State's favor. Citing our decision in Olsen v Town of Richfield (81 NY2d 1024 [1993]), the judge concluded that "based upon [claimant's] substantial prior experience, [he] knew or should have known both that Colgate Lake was shallow and that the actual depth of the lake fluctuated"; therefore, his dive "constitute[d], as a matter of law, an intervening act which was so extraordinary or far removed from the [State's] conduct as to be unforeseeable" (21 Misc 3d 1113A at *9 [Ct Cl 2008] [internal quotation marks omitted]).
The judge further considered claimant's deposition testimony that he had "no clue" about the water's depth at the spillway as further support for dismissing the claim. Citing Lionarons v General Elec. Co. (215 AD2d 851 [3d Dept 1995], affd 86 NY2d 832 [1995]), he observed that
"[d]espite his long experience swimming at Colgate Lake and diving from the spillway, notwithstanding his awareness that water levels at the lake fluctuated and in spite of his observation that water was not flowing through the spillway immediately prior to diving, the claimant failed to determine the level of the lake before entering the water. Furthermore, claimant stated in his affidavit that because the water was 'dark' he was unable to see the lake bottom prior to diving. A headfirst dive into 'dark' water without first determining its depth is clearly reckless conduct in circumstances, such as those present here, where the claimant was aware that the water level of the lake fluctuated. This is particularly true where the claimant, through long experience at the accident site, knew that the water was shallow. The fact that the claimant and others had successfully completed dives from the spillway of the dam on prior occasions does not render claimant's conduct any less reckless or more foreseeable" (id. [internal citations omitted]).
Finally, the judge noted that although there was proof that leaks in the dam "were a continuing and long-standing problem," there was no proof, "expert or otherwise, that the rate at which the water leaked from the dam was any greater in September 2005 than it was on the many occasions [claimant] was at Colgate Lake during the preceding five year period" (id.) Put another way, claimants "failed to establish that the shallow depth of the water was a condition different in kind than those with which the claimant was familiar . . . The fact that the dam leaked for over 30 years and was leaking in September 2005 does nothing to negate the claimant's familiarity with the fluctuating water level of the lake and the dangers associated with diving into shallow water" (id.).
Claimants appealed, and the Appellate Division affirmed. That court "agree[d] with the Court of Claims that the sole legal cause of claimant's injuries was his own reckless conduct in diving into the water, which he knew or should have known was too shallow for diving" (71 AD3d 1318, 1318-1319 [3d Dept 2010]), and noted that "claimants' own evidence established that, even under the best circumstances, the water in the area where claimant dove is never more than four feet deep" (id. at 1319). We granted claimants' motion for leave to appeal (15 NY3d 711 [2010]), and now affirm.
As previously noted, claimants' theory of liability is that the State was "negligent as a matter of law for failure to warn of a known danger and in failing to take any steps to warn of the hazards posed by this danger." The "known danger" identified by claimants was that the lake's water near the dam was too shallow for diving because the dam leaked. Claimant contends that he did not possess the requisite "specific and actual awareness of shallow water" necessary to warrant dismissal because he had previously dived into the lake from the spillway without incident and had "no knowledge that the water level [had] been altered."
Claimant, however, acknowledged that he was a frequent visitor to Colgate Lake to swim there, and that he routinely entered the lake on his numerous visits by executing a flat dive from the eastern spillway. It is undisputed that the lake has a mean depth of only 4.6 feet and would have been at most 4 feet deep at the lakeside face of the spillway when the lake was brimming with water, which claimant observed was decidedly not the case on September 4, 2005. He knew that the lake's water level fluctuated; he saw that the water was below the top of the spillway on September 4, 2005 and, as previously indicated, nearly contemporaneous photographs show what was there to be seen: a roughly two-foot differential between the water's surface and the top of the spillway. Any warning would have only alerted him to what he already knew about the approximate water level in the vicinity of the spillway as a result of his familiarity with the depth of the lake's water and the height of the spillway above the lakebed. And as the Court of Claims pointed out, there is no evidence, expert or otherwise, to support claimants' speculation that the dam was leakier in 2005 or the lake's water level was lower on September 4, 2005 than had been the case on other occasions when claimant dove into the lake.
Further, it does not follow, as claimants assume, that the lake's water level must have been lower than usual on September 4, 2005 because claimant did not hit bottom any of the other times he dove into the lake from the spillway or, if the water level was lower that day, that this was because of leaks in the dam, as claimants contend, rather than the amount of rainfall in the summer of 2005. The fact is, claimant engaged in reckless behavior when, on the date of the accident, he dove from the spillway into the dangerously shallow waters of Colgate Lake.
Relatedly, even assuming that the State owed claimant a duty to warn, we have consistently held that a plaintiff with actual knowledge that he is diving into shallow water has engaged in reckless conduct constituting the sole legal cause of any ensuing injuries, thus absolving a defendant of negligence. In Olsen, for example, an 18-year old boy dove into a shallow creek from a bridge owned by the defendant County. The evidence established that the boy was familiar with the creek and was aware that its water level fluctuated; further he understood that diving from the bridge required him to execute a shallow dive, which he failed to safely accomplish on the day he injured himself. We held that "on this record," which is essentially indistinguishable from the record in this case, "the sole legal cause of plaintiff's injuries was his own reckless conduct in attempting that dive" (Olsen, 81 NY2d at 1025; see also Lionarons, 215 AD2d at 853 ["plaintiff's own reckless dive headfirst into an area of water [in a creek] which he could only assume was of sufficient depth . . . constituted an unforeseeable superseding event relieving defendants of liability"]; Howard v Poseidon Pools, Inc., 72 NY2d 972 [1988] [the reckless conduct of a plaintiff who dove headfirst into a pool at a location where the water was at most chest-deep was an unforeseeable superseding event that absolved defendants of liability]; Boltax v Joy Day Camp, 113 AD2d 859 [2d Dept 1985], affd 67 NY2d 617 [1986] [same]).
Claimants would distinguish Olsen, Boltax and Howard on the basis that in those cases, the plaintiffs possessed "actual and specific knowledge" of the depth of the water into which they dove and proceeded despite the incredible and evident risk whereas here, claimant's knowledge of the risk was only imputed. But what the plaintiff actually knew about the depth of the water in Olsen was that "there was only a narrow-target of deep water entry that he had to hit precisely on the dive" (81 NY2d at 1025); the plaintiff in Boltax "admitted his familiarity with the various water levels at each part of the pool, yet chose to dive head first . . . into shallow water" (67 NY2d at 620); the plaintiff in Howard, who dove into an above-ground pool having a water depth of about four feet, "testified that he had been informed of the water depth and . . . when he stood in the pool, the water level was about 'chest-high'" (72 NY2d at 974). It is difficult to grasp any meaningful difference between what these plaintiffs "actually" knew about the depth of water in the creek (Olsen) or the pools (Boltax and Howard) into which they dove and claimant's knowledge about conditions at Colgate Lake. Here, as in these other cases, what claimant knew about those conditions should have alerted him that the water at the face of the dam on the lake side was not deep enough to support safe diving, yet he dove there anyway.[FN4]
Accordingly, the order of the Appellate Division should be affirmed, with costs.
* * * * * * * * * * * * * * * * *
Order affirmed, with costs. Opinion by Judge Read. Chief Judge Lippman and Judges Ciparick, Graffeo, Smith, Pigott and Jones concur.
Decided November 22, 2011
Footnotes


Footnote 1:The Town of Jewett, formed in 1849, was named after Freeborn G. Jewett, the first Chief Judge of the New York Court of Appeals.

Footnote 2:As part of a dam reconstruction in 2007-2008, the 1887 dam was excavated and a new dam was constructed slightly downstream on East Kill Creek.

Footnote 3:About 60% of the 287,514-acre Catskill Park Forest Preserve, or 155,000 acres, is designated wild forest land.

Footnote 4:We note that the State argued alternatively in the Court of Claims and the Appellate Division that this claim should be dismissed on the basis of the assumption of risk doctrine. The lower courts did not reach this issue in light of their conclusion that claimant's own reckless conduct was the sole legal cause of his injuries. On this appeal, the State mentions, but does not pursue, its argument about assumption of risk, and we therefore have no occasion to address it.
1840 Concourse Associates, LP v Praetorian Insurance Company

Weg and Myers, P.C., New York (Joshua L. Mallin of counsel),
for appellant.
Abrams, Gorelick, Friedman & Jacobson, P.C., New York
(Michael E. Gorelick of counsel), for respondent.
Order, Supreme Court, New York County (James A. Yates, J.), entered December 7, 2010, which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.
In this action for breach of contract based on a commercial property policy issued by defendant insurer to plaintiff property owner, defendant established its entitlement to judgment as a matter of law by showing that plaintiff commenced this action after expiration of the two-year limitations period contained in the policy (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967-968 [1988]). In opposition, plaintiff failed to raise a triable issue of fact as to whether the action was governed by the six-year statute of limitations set forth in CPLR 213 (id.). Moreover, plaintiff failed to raise a triable issue of fact as to waiver or estoppel (id.).
Because plaintiff's claim is barred by the applicable two-year statute of limitations, we decline to consider any remaining arguments.

Cassidy v DCFS Trust

Arnold S. Kronick, White Plains, for appellant.
Scott Baron & Associates, P.C., Howard Beach (Michael
Szechter of counsel), for respondent.
Order, Supreme Court, New York County (George J. Silver, J.), entered January 18, 2011, which, to the extent appealed from as limited by the briefs, denied that branch of defendants DCFS Trust and Gilad Realty, Inc.'s motion for summary judgment dismissing the complaint against DCFS Trust, unanimously affirmed, without costs.
DCFS Trust, as movant, failed to meet its initial burden to show prima facie entitlement to summary judgment (see CPLR 3212[b]; Frees v Frank & Walter Eberhart L.P. No.1, 71 AD3d 491 [2010]), inasmuch as it did not offer competent proof that it was engaged in the business or trade of leasing or renting motor vehicles (including the vehicle driven by the individual defendant), as would entitle it to immunity from vicarious liability for injury caused by the individual defendant (see 49 USC § 30106 [Graves Amendment]; cf. Ballatore v HUB Truck Rental Corp., 83 AD3d 978 [2011]). DCFS Trust also failed to present competent proof that the individual defendant was not its employee (see generally Gogos v Modell's Sporting Goods, Inc., 87 AD3d 248, 253 [2011]). The testimony of the president of defendant Gilad Realty, the company that rented the vehicle from DCFS Trust, is insufficient to establish DCFS Trust's business or trade or its employee roster.