Coverage Pointers - Volume XIII, No. 12

Dear Coverage Pointers Subscribers:

Hope your holiday season has been a joyous and healthy one.  When you have your health, you have everything.

We are pleased to provide the attached issue of Coverage Pointers.  We offer you the summaries of over 30 appellate opinions and arbitration decision involving New York Insurance coverage, all decided within the last two weeks.  We offer a typical array of additional insured and notice cases, a wide variety of Serious Injury threshold summaries and from Audrey, a very interesting case involving the settlement and unsettlement and resettlement of a no fault claim.

Labor Law Pointers, Volume 1, Number 2, has been sent to those who subscribe.

As a reminder, Dave Adams is quarterbacking the production of Labor Law Pointers to join Health Law Pointers, the latest addition to our Pointers newsletters.  Labor Law Pointers is published on the first Wednesday of each month and covers key appellate cases in the ever-changing work of New York Labor Law §§200, 240(1), 241(6).  If you are involved in construction site accident cases, you will want to subscribeto this publication.  Dave and his team just sent out their second issue, the first issue generating scores of subscribers.  Interested is subscribing, contact Dave at [email protected] and he’ll be happy to include you.

Audrey’s Angles:

There are a number of decisions this edition focusing on lost wages.  One of them is a case that own Margo Lagueras prevailed for a client on a lost wage claim that required five hearings and was near policy limits.

There is one decision from Arbitrator Benziger that is worthwhile reading and is an issue that we have been trying to consistently object to – can you have your paralegal or office rep represent a party at a no-fault arbitration.  The initial reaction I have received from attorney’s I have discussed this with is no if the person is making legal arguments before the Arbitrator.  Aside from the ethics question, there is a no-fault regulation that provides that a party can be represented by an attorney at a no-fault arbitration.  Many who sign on to a telephonic hearing or attend a live hearing and have received a letter of representation or reviewed an AR-1 signed by an attorney from a law firm do assume that the person appearing at the hearing is an attorney.  However, that may not be the case and you should clear that issue up fast before the hearing proceeds into argument of you client’s case.  We have not seen any directive from the American Arbitration Association or any Appellate Division on this issue.  The arbitrators also have different viewpoints on this issue.  We have found that an objection to a paralegal or office rep’s participation in the hearing has led to the attorney being required to take over the case.   However, we have also seen that left with no objection the entire case has been argued by a paralegal or office rep.  Arbitrator Benziger’s decision seems to indicate that if your case is in front of him this practice may not be tolerated based upon what occurred in the case reported this edition.

Finally, if you have not registered there is still time to register for the DRI Insurance Coverage and Practice Symposium being held in NYC from December 14-16.  You do not need to be a DRI member to attend.  You should know that the program has a record number of claims professionals and in-house counsel attending.  We also expect that this program will reach a record number of attendees this year.  There are four panel counsel meetings scheduled as well as eight or nine dine arounds.  If you need information on how to register please send me an email at [email protected]

Audrey Seeley

 

The One Hundredth Anniversary of the Birth of Lee J. Cobb (Through the Words of His Daughter, Julie):

Regular readers of this missive know my love and passion for history and my weekly look backs to events a century old.  When we can, we try to enhance those stories with reflections of special people who have unique insights into the event or the characters.  This week, we had a special opportunity to do so:

In 2008, the ABA Journal asked 12 prominent lawyers who teach film or are con­nected to the business to choose what they regard as the best movies ever made about lawyers and the law.  Number one on the list was “To Kill a Mockingbird,” which featured Gregory Peck’s defense of a black man falsely accused of rape.  Number two on the hit parade was “Twelve Angry Men,” a movie that every lawyer has seen at some point in his or her life.  A dozen jurors, from all walks of life, engage in hostile deliberations in a murder case.  Few can forget the spectacular ensemble cast, starring Henry Fonda as the lone hold-hold out for an early conviction and the wonderful Lee J. Cobb in a guy-wrenching role as “Juror Number 3,” whose relationship with his son leads to anger and combativeness.  Until he comes to grips with that emotion, he cannot vote for acquittal.

Lee J. Cobb was born on December 9, 1911 and died in February 1976, short of his 65th birthday.  I reached out to his only child, Julie Cobb, an actress and producer in her own right, and a life coach, to share some memories of her father on his 100th birthday.  Julie’s daughter is a 3L at NYU and also an actress.  Julie responded with delight and generosity and I thank her for her memories:

It is stunning to realize that my father would be turning one hundred years old this month. He was a big figure in my life and he still looms large on these anniversaries. I appreciate this invitation to share some memories about him.

Twelve Angry Men, all agree, is a very powerful film that deals with many issues. It is timeless in its exploration of assumptions, racism and the grief that comes from unresolved family conflicts. I am not objective, of course, but I have always felt that my dad’s character, Juror Number 3, carried the emotional burden of the movie. The scene in which he looks at the photo of his errant son, rips it up and then registers visceral remorse is a study in resentment, guilt and profound regret. . His pain renders him incapable of objectivity in his capacity as a juror.

The legal issues that are illuminated in the film have been commented on for many years. But how fascinating to watch this man struggle, holding out till the very end, unable to let go of his personal wound. Finally, he caves in and votes not guilty along with the others. One can only imagine his trip home that night and the thoughts he will have to sort out as a result of his day in the jury room. This is the brilliance of the writing, directing and acting of the film. It stays with us and we continue to resonate with everything those twelve went through.

I appeared in a stage production of Twelve Angry Men that was called Twelve Angry Americans. Odd as it may seem, I was cast as Juror Number 9. I’m fairly sure it was Number 9. In the play and movie it is the old man. Our production reworked the role and I played her as a pathologically shy young woman who was essentially afraid of her own shadow. My father came either on opening night or shortly after and he did not like what he saw. Never one to hold back, he gave me a thorough critique of Reginald Rose’s play and a nearly scathing review of my efforts. When he realized that I had weeks of performance ahead, he was very sorry to have been so harsh. I can smile about it now, but it stung at the time.

After his passing in 1976 I continued to work in stage and television roles. I had a great opportunity to embody Arthur Miller’s words as Maggie in After the Fall. The audacity and freedom I needed to fulfill the demands of that role might not have been accessible to me if my dad were alive. I cared far too much about his opinion and, frankly, I would have been inhibited in reaching for some of the sexuality and desperation of the role.

Sometime later I was asked to direct Twelve Angry Men in a small Hollywood theater. Never having directed, I’m not sure what gave me the chutzpah to say yes. I will always be grateful I did however. I cast eight men and four women, all wonderful actors. Our set designer created a wonderful room with a dirty window that looked out over the city. The audience could feel the sweltering heat as the debate proceeded toward violence. At one point we created an electrical storm that caused a short black out. When the power came back on, the fan that had never worked gave a few hopeful spins before conking out again. I won awards for my directing but, more importantly, I felt vindicated in my father’s eyes. I think he would have liked our production and I feel certain he would have been proud of me.

Julia Cobb

Peiper Piping:

Yet again we are left wanting for a First Party decision in this week’s edition.  We do, however, offer two interesting decisions on the application of Late Notice of Claim under General Municipal Law 50(e).  In addition, and just in time for the Holiday Season, we offer up the First Department’s beauty of a decision involving a punch up at an office party.  The combatants would include the company’s Chief Financial Officer, a surly staff member, and the spirit of your choice.  The decision does not mention the catalyst for the scuffle, but we’d hazard a guess that it involved time sheets, or lack thereof!
With this in mind, and because I have nothing else to write about this week, we offer our own thoughts on DOs and DONTs this Holiday Season.   

DO: Decide if you will drink ahead of time - Presumably this means decide ahead of time if you will drink, in moderation, AT THE PARTY.  We do not encourage drinking prior to attending the party.

DON'T: Over consume…anything –Think Seinfeld, George, Shrimp!

DO: Make proper intros ­– Between your guest and your co-workers.  This is not meant to apply to the bartender.

DON'T: Talk gossip, politics or religion – Or make any reference to the Kardashians,  Real Housewives of Beverly Hills, or any other sordid, ridiculous reality TV.  While not overtly offensive, your friends and co-workers will still thank you for it.  

DO: Dress appropriately – For a professional setting.

DON'T: Give the boss a gift –Sure glad that is cleared up.  Emily Post says it is ok, if not expected, to be cheap

DO: Say thank you – Again, to the host of the party… not the bartender!

DON'T: Skip the party – Where else can you see the CFO enter into a drunken rage, and then punch the daylights out of a wayward employee!

DO: Put away your phone - Unless promptly responding to a client, or taking a picture of the CFO flailing wildly at an employee!
Please note all appropriate acknowledgments to Emily Post’s Etiquette Guide and Fox Business Journal.com from whom we obtained this list.  The list is theirs, the mildly witty, satirical comments are all mine.  Cheers!

Steven E. Peiper
[email protected]

One Hundred Years Ago Today

Syracuse Herald
December 9, 1911
Page 1
MINE EXPLOSION
BURIES 10O MEN
Flames Drive Back Life-Savers in
Colliery Disaster in Tennessee-
Small Hope For Victims.
GREAT LOSS OF LIFE IS
FEARED—RESCUE DELAYED

Federal Mine Rescue Crew Summoned—Mighty Roar of Explosion Brings Crowds to Mouth of Pit—Disaster Due to Coal Dust Combustion—Town of Briceville in Convulsion of Panic and Grief.

Knoxville, Tenn., Dec-.9.—A "dust" explosion in the main mine -of the Cross Mountain system near Briceville early today entombed a large number of workers who had just entered for the day's toil.

The mine is usually manned by 200 miners and at least 100 had entered the shaft prior to the "dust" blast.

Rescue preparations were immediately under way, and at 10 o'clock gangs of miners from other "works" in the district had gone into the main Cross Mountain mine by three entrances. At that hour none of the rescue parties had reported.

The Cross Mountain Mine disaster was a coal mine explosion that occurred on December 9, 1911 near the community of Briceville, Tennessee, in the southeastern United States. In spite of a well-organized rescue effort led by the newly-created Bureau of Mines, 84 miners died as a result of the explosion. The likely cause of the explosion was the ignition of dust and gas released by a roof fall.

At least 22 of the miners killed in the Cross Mountain Mine disaster were buried in a circular memorial known as the Cross Mountain Miners' Circle, which is now listed on the National Register of Historic Places.

The Cross Mountain Mine operation was one of the first major rescue efforts carried out by the Bureau of Mines. Although only 5 of the 89 miners trapped by the explosion were rescued, the bureau collected invaluable information that aided later mine rescue efforts. The rescue effort also helped the bureau's public image, and ensured continued funding in the future.

The 84 miners killed as a result of the explosion were buried in several cemeteries in the Briceville-Fraterville area. At least 22 were buried in a circular memorial which became known as the Cross Mountain Miners' Circle. This circle is located at the south end of Briceville on the steep western slope of Walden Ridge. Shortly after the disaster, the United Mine Workers of America placed a marble obelisk in the middle of the Cross Mountain Miners' Circle containing the names of all 84 miners killed in the Cross Mountain Mine disaster. This memorial, around which a large cemetery has developed, was placed on the National Register of Historic Places in 2006. Others were buried at the Briceville Community Church cemetery, among them Eugene Ault, whose monument is inscribed with the "farewell message" he wrote on the wall of the mine as he lay dying. His farewell message says:

“Dear Father, Mother, Brothers, and Sisters, I guess I come to die.  Well I started out and come to the side track and Alonzo Wood is with me.  Air is not much now.  Well, all be good and I aim to pray to God to save me and all of you.  Tell Clarence to wear out my clothes, give him my trunk.  I guess I'll never be with you anymore.  So goodbye.  Give them all my love.  Give Bessie Robbins a stickpin of mine.  Tell her goodbye.”

In This Week’s Edition:

In this week’s Coverage Pointers you’ll find:

 

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

• Without Jurisdiction Over a Party, Court Cannot Rule on Substantive Issues
• Accident in Stairwell Used by Named Insured’s Employees Fell Within Additional Insured Protection
• While Injured Party Has Independent Right to Give Notice, No Proof of Any Effort on Part of Injured Party to Ascertain Identity of Defendant’s Insurer
• Action Against Broker Dismissed:  Coverage Purchased Was Coverage Requested and Insured Assumed to Have Read Policy
• Additional Insured Coverage Not Available if (a) Contracts Do Not Require AI Status Be Provided and (b) Injuries Do Not Arise Out of Work of the Named Insured
• Failure to Request Coverage for Particular Party Was Not a Ministerial Error Where Coverage Only to Be Provided for Those on Whose Behalf Request Made

 

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

• ROM Limitation Findings Defeat Summary Judgment
• Equal Weight Is Given to Report Stating Injuries Are Causally Related as to Report Stating Changes Are Degenerative
• Orthopedist’s Statement That Plaintiff Is “Totally Disabled” Is Too General
• Plaintiff’s 90/180-Day Claim Is Reinstated Where Defendants’ Expert Fails to Relate Findings to That Period
• Again, 90/180-Day Claim Set Forth in Bill of Particulars Must Be Adequately Addressed
• Plaintiff’s Deposition Testimony Defeats Her 90/180-Day Claim
• The Battle of Competent Medical Evidence Results in Denial of the Motion
• Contradiction by Defendants’ Expert in Expert’s Report Defeats Defendants’ Motion
• Another Battle of Competent Medical Evidence
• Causal Relationship Cannot Be Established Where the Only Evidence of Limitations Is Contained in a Report Years Post-Accident
• Plaintiff Raises Issue of Fact Regarding Causal Relationship
• Defendants Establish Alleged Injuries Do Not Constitute Serious Injuries
• Medical Reports Not in Admissible Form Will Not Raise an Issue of Fact
• Plaintiff’s Failure to Allege Category in Bill of Particulars Means Defendants Need Not Address That Category
• Again, Defendants Establish Alleged Injuries Do Not Constitute Serious Injuries

 

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

ARBITRATION

• Second IME Denial of Lost Wages Sufficient
• Lost Wage Claim Denied but Peer Review Insufficient to Deny Medical Expenses
• Additional Lost Wage Claim Denied as Submitted to Insurer in Arbitration Demand
• Exhaustive IME but Denial Found Defective Upon Confusing Box 33 Explanation
• Applicant Not Entitled to Additional Interest Because It Refused to Provide Written Settlement Document Forcing Case to Go to Arbitration Decision
• Applicant Not Entitled to Lost Wages as Laid Off from Seasonal Job and Not Due to Injuries from Accident

 

LITIGATION

• Insurer Prevails on Failure to Appear for Scheduled IMEs
• Failure to Rebut Insurer’s Showing Results in Insurer Obtaining Summary Judgment

 

Liening Tower of Perley
Michael F. Perley
[email protected]

• Recent Medicare decisions

 

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

• Continuous Violation Doctrine Does Not Save Plaintiff’s Claim from Failure to Assert a Timely Notice of Claim
• News You Can Use (but Hopefully Won’t Have to):  No Respondeat Superior Liability on Employer Where CFO Attacks a Co-Worker at Office Party
• Plaintiff’s Time, Under General Obligations Law § 50e, to File a Notice of Claim for Emotional Distress Did Not Start Until the Discovery of Allegedly Distressing Material
• For Indemnity Claims, the One Year Abandonment Doctrine Does Not Trigger Until the Proposed Indemnitee Actually Incurs a Loss

 

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

• Circular Letter No. 13

 

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

• Questions Certified to Florida Supreme Court

 

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

• If an Insurer Denies Coverage for a Loss, It Does Not Have Standing to Bring a Subrogation Claim Against an Allegedly Negligent Party

 

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

METH LAB BLOWS UP INTO COVERAGE DISPUTE

 

That’s all for now, folks.  See you right before Christmas.
Dan
Dan D. Kohane
Hurwitz & Fine, P.C.
1300 Liberty Building
Buffalo, NY 14202    
Phone:  716.849.8942
Fax:      716.855.0874
E-Mail:  [email protected]  
H&F Website:  www.hurwitzfine.com  
LinkedIn: www.linkedin.com/in/kohane

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

NEWSLETTER EDITOR
Dan D. Kohane
[email protected]

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
Liening Tower of Perley
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]

12/8/11           In re The Travelers Indemnity Company v. Armstead
Appellate Division, First Department
Without Jurisdiction Over a Party, Court Cannot Rule on Substantive Issues
In an uninsured motorists application for stay, Travelers had been directed to add State Farm as a party.  State Farm had claimed that it had canceled its policy and Travelers was challenging that cancellation.  However, Travelers failed to serve State Farm with a summons and therefore did not gain jurisdiction over State Farm.  Accordingly, the lower court lacked jurisdiction over State Farm to make a decision that would be binding upon that insurer.

12/06/11         1515 Broadway Fee Owner, LLC v. Seneca Ins. Co. Inc.
Appellate Division, First Department
Accident in Stairwell Used by Named Insured’s Employees Fell Within Additional Insured Protection
The issue was whether a stairwell area where the underlying accident occurred is covered by the additional insured clause in the policy procured by the plaintiff's employer from Seneca.  The owner and managing agent claimed AI coverage.

The court found that the accident occurred in the course of an activity necessarily incidental to the operation of the space leased by the employer and in a part of the premises that was used for access in and out of the leased space when the freight elevator was not in service.  While it wasn’t part of the leased premises, it was “on or about the leased premises” and therefore covered by the AI clause.

11/29/11         Tower Ins. Co. of New York v. New Wok Hing Trading, Inc.
Appellate Division, Second Department
While Injured Party Has Independent Right to Give Notice, No Proof of Any Effort on Part of Injured Party to Ascertain Identity of Defendant’s Insurer
On June 6, 2007, Jiang was injured when his hand was crushed while he was delivering and unloading refrigerated goods at a store owned and operated by the defendant New Wok.  New Wok’s sole officer and principal, the defendant Lin, was present.  Three months later, in mid-September, Jiang and his wife sued Lin and New Wok.

New Wok had a liability policy with Tower but did not notify Tower of the accident and lawsuit until November, five months after the accident and two months after the suit was filed.  Tower promptly disclaimed on late notice.  Jiang and his wife Dong argued that they made reasonably diligent efforts to ascertain the identity of the insurer.

Tower demonstrated that Jiang failed to provide any explanation for their more than five-month delay in ascertaining Tower's identity and notifying Tower of the accident.  Accordingly, Tower wins another late notice case.

11/29/11         Motor P’kway Enter. v. Loyd Keith Friedlander Partners, Ltd.
Appellate Division, Second Department
Action Against Broker Dismissed:  Coverage Purchased Was Coverage Requested and Insured Assumed to Have Read Policy
Proof was that broker purchased coverage that was requested.  Moreover, there remains a conclusive presumption that the policyholder read the policy purchased.  Accordingly, malpractice claim against insurance professional dismissed.

11/29/11         B.R. Fries & Associates, LLC v. Illinois Union Ins. Co.
Appellate Division, First Department
Additional Insured Coverage Not Available if (a) Contracts Do Not Require AI Status Be Provided and (b) Injuries Do Not Arise Out of Work of the Named Insured
Facts not clear from opinion.  It appears that B.R. Fries (“Fries”) was insured under a primary policy issued by Illinois Union (“Illinois”) and an excess policy issued by Zurich.  When Illinois denied coverage, Zurich dropped down and took up the defense, paying all of the Fries’ legal fees.  Now Fries sues Illinois seeking to recover back those costs.  Illinois moved to dismiss the action, alleging that Fries was not injured, since Zurich paid its costs.  The court refused to dismiss the action because Zurich would just start the same lawsuit all over again and it would not be efficient to have all that happen. 

Secondarily, two other plaintiffs, 168 Jamaica and 166 Jamaica sought additional insurance coverage but were not entitled to it.  Under the blanket AI endorsement, only those organizations required by contract with the named insureds would be entitled to that status.  There was no evidence that Fries was required to name either 168 or 166 Jamaica as an additional insured.  The contract required Fries to insure the “owner” and the “owner” was defined as Home Depot.  The fact that Illinois did not promptly deny coverage to the two Jamaica entities does not create coverage for them.

Fries and Home Depot then sought coverage under a Virginia Surety policy issued to Atlas, a concrete contractor.  However, there was nothing in the underlying complaint to justify any inference that liability might arise out of Atlas's work.  The bare mention of anchor bolts in the bill of particulars in the underlying personal injury action was insufficient.

So Zurich gets its defense costs back, except for that portion paid for the Jamaica LLC defendants, since they were not insureds under the policy.

11/29/11         GJF Construction, Inc. v. The Sirius America Ins. Co.
Appellate Division, First Department
Failure to Request Coverage for Particular Party Was Not a Ministerial Error Where Coverage Only to Be Provided for Those on Whose Behalf Request Made
The policy contained an endorsement amending the policy to include, as insureds, persons or organizations "as on file with company."  While a written request was made to add 101 Park Avenue Associates to the policy, there was no evidence that such a request was made with regard to GJF Construction.  The act of requesting that an additional insured be named under the policy was not a purely ministerial act whose failure should be excused.  Here the failure to provide defendant with notice that GJF was an additional insured deprived the insurer from exercising its right to deny coverage under the policy which could have occurred had the request been made.

In an interesting side note, at one point, however, defense counsel advised that GJF was an insured under the policy.  The majority found that counsel’s statement, which led to fewer questions being asked by counsel in discovery, was a formal judicial admission of coverage.   However the court found, eventually, that coverage was not created where none existed.  Two judges thought that the acknowledgment of counsel’s error should have precluded a finding of formal judicial admission.  However, since coverage was not afforded anyway, it ended up making no difference.  The claimant, 101 Park Avenue, failed to demonstrate that it acted promptly in providing notice to the insurer of the claim.

 

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

12/08/11         Bonilla v. Abdullah
Appellate Division, First Department
ROM Limitation Findings Defeat Summary Judgment
Defendants taxi owner and driver moved for summary judgment alleging plaintiff did not sustain a serious injury while plaintiff-pedestrian cross moved on the issue of liability, and co-defendant Gooden cross moved also on the issue of liability.  The trial court had denied taxi owner’s motion, granted plaintiff’s cross-motion and denied Gooden’s cross motion.

The facts indicate that Gooden was driving his SUV when the taxi cut him off from the left and made a right turn, causing the two vehicles to collide.  The taxi then continued down the street where plaintiffs were crossing.  Plaintiff Michael “yanked” plaintiff Mayra out of the way, causing her to trip on the sidewalk.  She allegedly sustained injuries to the lumbar spine and her knees.

On appeal, the court found an issue of fact with regard to proximate cause and reversed the grant of summary judgment to plaintiffs.  The court also found that because Gooden, in his deposition, testified that he saw the taxi five or six seconds before the impact, there were issue of fact as to whether he was confronted with an emergency situation.

With respect to Mayra’s injuries, defendants met their prima facie burden through the affirmed reports of an orthopedist, who found normal range-of-motion in her spine and knees and concluded that her injuries had resolved, and a radiologist who reported the lumbar MRI revealed pre-existing degenerative disc disease. 

However, in opposition, plaintiff submitted the affidavit of her treating orthopedist containing objective, quantitative range-of-motion restrictions in both the lumbar spine and knees.  These findings contradicted defendants’ experts and the ROM limitations, particularly where coupled, as here, with MRI results, were sufficient to defeat summary judgment.  Plaintiff’s expert also rebutted the claim of pre-existing degenerative disc disease by noting that she was asymptomatic prior to the accident and that her injuries were caused by the accident.  Plaintiff further explained that she stopped treating when her no-fault benefits were terminated. 

The court determined, however, that her claim under the 90/180-day category should have been dismissed because in her bill of particulars she alleged being confined to bed and home for only a few weeks.  She later gave conflicting testimony alleging that she was confined to her house for two months following surgery but then stating she was only confined for two weeks in her affidavit.  The denial of defendant taxi owner’s motion was modified to grant the motion with respect to the 90/180-day claim.

12/01/11         Borja v. Delarosa
Appellate Division, First Department
Equal Weight Is Given to Report Stating Injuries Are Causally Related as to Report Stating Changes Are Degenerative
On appeal, the court dismisses the plaintiff’s claim regarding his shoulder as the plaintiff admitted the pain has already resolved.  The court also dismissed the plaintiff’s claim under the 90/180-day category because the plaintiff’s bill of particulars indicated that he only missed 40 days of work, and his reduced work schedule was insufficient to raise an issue of fact.

However, the court affirmed the dismissal of the defendants’ motion with respect to the plaintiff’s claim of permanent limitations to his cervical spine.  Plaintiff’s treating physician’s report contained objective and quantifiable findings that were consistent with the findings of a radiologist who found the MRI revealed anterior and posterior protruded disc herniations at C6-7.  He causally related the injuries to the accident.  An anesthesiologist, who administered epidural steroid injections to the plaintiff, also concluded that the plaintiff suffered from permanent cervical radiculopathy and myofascial pain syndrome. 

The court determined that even though the plaintiff’s treating physician did not specifically address the defendants’ expert’s nonconclusory opinion that the cervical injuries were degenerative, the fact that he specifically attributed the cause of the injuries to the accident was sufficient to allow the court to afford equal weight to his opinion as to that of the defendants’ expert, thus raising an issue of fact.

12/01/11         Winters v. Cruz
Appellate Division, First Department
Orthopedist’s Statement That Plaintiff Is “Totally Disabled” Is Too General
Plaintiff’s 90/180-day claim was dismissed because his orthopedist’s statement that the plaintiff was “totally disabled” was too general to raise an issue of fact, and the plaintiff’s statement that he missed four months of work was not supported by any documentation or affidavit from his employer. 

With respect to his claim of serious injury to the right knee, the defendants submitted affirmed reports from a radiologist and an orthopedist that both found a healed contusion and pre-existing degenerative arthritis.  This diagnosis was also previously documented by the records of the plaintiff’s orthopedic surgeon who, before the accident, administered a steroid injection to the right knee when he performed surgery to the plaintiff’s left knee.  In addition, even though the plaintiff’s expert attributed the knee injury to trauma and not degeneration, he did not set forth any contemporaneous or recent limitations and did not compare any limitations that he did note to what are normal ranges of motion, rendering his report insufficient.   Plaintiff’s expert in fact noted improved range-of-motion during a post-operative examination and the plaintiff did not submit any evidence of current quantitative or qualitative limitations.  The complaint was therefore dismissed.

11/29/11         Bangar v. Man Sing Wong
Appellate Division, Second Department
Plaintiff’s 90/180-Day Claim Is Reinstated Where Defendants’ Expert Fails to Relate Findings to That Period
Plaintiff alleged a 90/180-day claim in his bill of particulars.  In support of their motion, the defendants submitted the plaintiff’s deposition testimony.  However, that testimony indicated that the plaintiff was out of work for 110 days following the accident.  Although the defendants also submitted the report of their examining orthopedist, he did not examine the plaintiff until 14 months after the accident and he did not relate any of his findings to the relevant period of time.  As such, the defendants failed to meet their prima facie burden and, on appeal, the trial court is reversed and the motion denied without consideration of the plaintiff’s opposing papers.

11/29/11         Cohn v. Khan
Appellate Division, Second Department
Again, 90/180-Day Claim Set Forth in Bill of Particulars Must Be Adequately Addressed
And the defendants here failed to do so, resulting in the denial of their motion.  However, the plaintiff, a pedestrian struck by a taxi, failed to show in her cross-motion on the issue of liability, that she was free from comparative negligence or that the driver’s conduct was the sole proximate cause of the accident (she had left the sidewalk and was walking along the edge of the roadway with her back to oncoming traffic).  Therefore, on appeal, the denial of the defendants’ motion is affirmed, but the grant of the plaintiff’s cross-motion was reversed.

11/29/11         Grant v. New York City Transit Authority
Appellate Division, Second Department
Plaintiff’s Deposition Testimony Defeats Her 90/180-Day Claim
On appeal, the trial court is affirmed and the plaintiff’s complaint is dismissed where she testified during her deposition that, although she was prevented from performing some of her normal activities, her injuries did not prevent her from performing substantially all of her daily activities for at least 90 of the 180 days following the accident.

11/29/11         Henig v. Avana
Appellate Division, Second Department
The Battle of Competent Medical Evidence Results in Denial of the Motion
Plaintiff claimed injuries to her lumbosacral spine and, although the defendants submitted competent medical evidence establishing that the alleged injuries were not caused by the accident, the plaintiff submitted competent medical evidence that raised a triable issue of fact sufficient to defeat the defendants’ motion.

11/29/11         Jones v. Hampton
Appellate Division, Second Department
Contradiction by Defendants’ Expert in Expert’s Report Defeats Defendants’ Motion
In his report, the defendants’ examining orthopedist surgeon noted significant limitations in lumbar flexion but, at the same time, concluded that the plaintiffs’ lumbosacral spine was normal and he did not explain his conclusion given his findings.  The trial court’s grant of defendants’ renewed motion was reversed on appeal.

11/29/11         Knight v. Zena & Sol Taxi, Inc.
Appellate Division, Second Department
Another Battle of Competent Medical Evidence
Plaintiff alleged injury to the cervical spine and the defendants, in their motion, submitted competent medical evidence that the alleged injuries did not constitute serious injuries and that, in any event, they were not caused by the accident.  In opposition, the plaintiff submitted competent medical evidence raising triable issues of fact sufficient to defeat the defendants’ motion with respect to both questions.

11/29/11         Ovalles v. Herrera
Appellate Division, First Department
Causal Relationship Cannot Be Established Where the Only Evidence of Limitations Is Contained in a Report Years Post-Accident
On appeal, the trial court is unanimously affirmed as the defendants established, through the affirmed reports of their orthopedist and neurologist, that the plaintiff had normal range-of-motion in her cervical and lumbar spine.  Even though the findings were different, they were not different enough to impact the defendants’ entitlement to summary judgment.  Plaintiff, on the other hand, did not submit any contemporaneous medical evidence of limitations and did not explain the lack of such evidence.  Because the only objective medical evidence of limitations the plaintiff submitted was a report from several years after the occurrence, that report was “too remote” to establish a causal relationship to the accident.  Plaintiff’s 90/180-day claim also failed because, during her deposition, she testified she only missed a couple of days from work.

11/22/11         Cairo v. Awan
Appellate Division, Second Department
Plaintiff Raises Issue of Fact Regarding Causal Relationship
In a decision without any facts, on appeal the trial court’s denial of defendants’ motion is affirmed because, although the defendants established that the plaintiff’s cervical injuries were not caused by the accident, in opposition the plaintiff raised a triable issue of fact sufficient to rebut the defendants’ showing.

11/22/11         Foster v. Gayle
Appellate Division, Second Department
Defendants Establish Alleged Injuries Do Not Constitute Serious Injuries
In another decision without details, the trial court’s grant of the defendants’ summary judgment motion is affirmed.  Defendants established that the plaintiff’s alleged injuries to her cervical and lumbosacral spine and shoulders did not constitute serious injuries.  In opposition, the plaintiff failed to raise a triable issue of fact.

11/22/11         Karpinos v. Cora
Appellate Division, Second Department
Medical Reports Not in Admissible Form Will Not Raise an Issue of Fact
Defendant established both that the plaintiff’s alleged injuries to the cervical and lumbosacral spine and right knee did not constitute serious injuries under either the permanent consequential or significant limitation of use categories, and also that plaintiff did not qualify under the 90/180-day category.  In opposition, the plaintiff submitted medical reports that were not in admissible form and therefore failed to raise a triable issue of fact, resulting in the trial court’s grant of the defendant’s motion being affirmed on appeal.

11/22/11         Quintana v. Arena Transportation Inc.
Appellate Division, Second Department
Plaintiff’s Failure to Allege Category in Bill of Particulars Means Defendants Need Not Address That Category
In her bill of particulars, the plaintiff did not allege injury under the 90/180-day category.  As a result, the defendants were not required to address that category in their motion.  In addition, the defendants submissions established that the alleged injuries to the cervical and lumbar spine, head, shoulders and wrists did not constitute serious injuries under the permanent consequential and/or significant limitation of use categories.  In opposition, the plaintiff failed to raise an issue of fact because the report of her treating physical medicine expert was unaffirmed and therefore insufficient, and the affirmed report of her treating orthopedist, although noting that she had restrictions in the range-of-motion of her cervical and lumbar spine and right wrist, did not set forth the actual ranges of motion or compare the findings with normal ranges. 

11/22/11         Rotella v. Mace
Appellate Division, Second Department
Again, Defendants Establish Alleged Injuries Do Not Constitute Serious Injuries
In yet another decision without any detail, the grant of summary judgment to the defendants is affirmed on appeal as the defendants submitted competent medical evidence establishing that the alleged injuries to the cervicothoracic region of the spine did not constitute a serious injury and the plaintiff failed to adequately rebut.

 

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

ARBITRATION
12/06/11         Applicant v. A Central Ins. Co.
Arbitrator Veronica K. O’Connor, Erie County
Second IME Denial of Lost Wages Sufficient
The Applicant sought lost wages from May 4, 2010 through June 4, 2011, as a result of a March 31, 2009, accident.  The Applicant was employed as a driver for We Care at the time of the accident working 34-36 hours per week.

The insurer denied lost wages based upon the independent chiropractic examination conducted by Anthony Magnano, DC effective January 11, 2010, and the independent medical examination (“IME”) conducted by Dr. James Faulk on July 5, 2010.  The assigned arbitrator determined that the insurer’s denial of lost wages based upon the Magnano report could not be upheld.  This is because Mr. Magnano indicates the Applicant can return to work but fails to address the Applicant’s specific job duties and requirements.  The Applicant testified that his job required him to transport disabled individuals.  His job required him to push the individual in their wheel chair and raise and lower the vehicle’s ramp.  Accordingly, the Applicant demonstrated disability through July 2010 when Dr. Falk’s report was issued.

The assigned arbitrator upheld the insurer’s denial of lost wages based upon Dr. Falk’s report as the Applicant did not rebut the conclusions contained therein.  Thus, the Applicant was awarded lost wages from May 4, 2010 through July 7 or 8, 2010.

12/05/11         Applicant v. Esurance Ins. Co.
Arbitrator Thomas J. McCorry, Erie County
Lost Wage Claim Denied but Peer Review Insufficient to Deny Medical Expenses
The Applicant sought lost wages and medical expenses arising out of a December 27, 2008, motor vehicle accident.  The lost wage claim was denied by a blanket denial dated February 3, 2010 with three bases for denial – 1) late proof of claim, 2) the eligible injured person (“EIP”) was paid for her absence, and 3) the EIP was on a leave of absence.

The assigned arbitrator upheld the lost wage denial.  The employer’s wage verification indicated that the EIP would be out of work from June 24, 2008 through March 3, 2010.  The EIP was out on maternity leave and returned to work part time on January 11, 2009, as admitted on her no-fault application.  Further, the EIP had surgery on January 13, 2010.  There was no evidence that the EIP provided timely notice to the insurer of this lost wage claim until arbitration was filed.

The medical expense denial was upon the peer review of Dr. Raz Winiarsky which was determined not to be persuasive.  This is because the report did not assert that the treatment was not medically necessary or that the doctor was qualified to render an opinion on accident reconstruction.

12/05/11         Applicant v. Preferred Mut. Ins. Co.
Arbitrator Thomas J. McCorry, Erie County
Additional Lost Wage Claim Denied as Submitted to Insurer in Arbitration Demand
The Applicant sought additional lost wages.  The insurer was advised that the Applicant lost one week from work after the accident from her no-fault application.  However, as the assigned arbitrator pointed out that there was no evidence to demonstrate that the insurer was on notice of an additional lost wage claim until the arbitration demand was filed.  Hence, the insurer had not denied the claim.  The assigned arbitrator determined that in the absence of proof that claim was submitted, the claim was denied.

12/01/11         Buffalo Neurosurgery Group v. Nationwide Ins. Co.
Arbitrator Thomas J. McCorry, Erie County
Exhaustive IME but Denial Found Defective Upon Confusing Box 33 Explanation
The Applicant sought reimbursement for a surgery and neurological treatment rendered to its assignor allegedly as a result of a September 28, 2006, motor vehicle accident.  The insurer denied the treatment based upon the IME of Dr. Michael Smith.  The assigned arbitrator noted that Dr. Smith’s report indicated the complexity of the case and was exhaustive.  The problem arose with the denial’s wording.  The assigned arbitrator determined that the Box 33 explanation was confusing and contradictory.  He noted that if the denial’s wording was flawed due to the claims professional’s interpretation of the IME, then the best practice would have been to simply state that basis for denial was upon Dr. Smith’s IME and attach a copy of same for the medical rationale.  The assigned arbitrator indicated that the denial could not be upheld, but based upon the Box 33 explanation.

11/29/11         Twin City Ambulance v. Allstate Ins. Co.
Arbitrator Kent L. Benziger, Erie County
Applicant Not Entitled to Additional Interest Because It Refused to Provide Written Settlement Document Forcing Case to Go to Arbitration Decision
The issue presented in the arbitration was whether the Applicant was entitled to interest up to the date of the arbitration decision as Applicant refused to acknowledge settlement of the claim in writing, which the insurer offered the entire amount sought, attorney’s fees, filing fee, and interest until date of the settlement.

The assigned arbitrator reviewed the stipulated facts of the arbitration which were that during the conciliation process of the arbitration the insurer offered to pay Applicant the full amount in dispute with interest from date of filing, attorney’s fees, and the filing fee.  The insurer requested a written affirmative acknowledgement of the settlement reached.  Applicant agreed that the insurer’s settlement offer reflected the full amount Applicant could receive per the no-fault regulation.  The arbitrator noted that the offer included interest which is often waived by Applicants.  The Applicant’s counsel refused to send a written confirmation of the settlement.  Thus, both parties requested the arbitrator to order the settlement terms previously offered but disagreed on interest.  Applicant’s counsel contends that Applicant is entitled to interest up until the date of the arbitrator’s award and not when the parties reached a mutual understanding on settlement of the matter.

The assigned arbitrator stated that during the telephonic hearing the Applicant did not appear by counsel but by a paralegal or firm representative who stated that the facts were stipulated with interest being the only remaining issue.  The assigned arbitrator noted that neither party could clearly articulate the position and prior case history.  Thereafter, the assigned arbitrator stated that even though the insurer’s counsel did not object to the paralegal’s presence, the assigned arbitrator stated he will not again permit a non-attorney to appear for the Applicant to state a legal issue even if the facts are stipulated and the Applicant’s counsel can be brought to the phone.

Applicant’s refusal to provide any written confirmation of the settlement was upon the contention that it was not required to submit same.  The assigned arbitrator indicated that common sense dictated that the real reason to prolong acceptance was to receive additional interest.  Further, the no-fault regulations provide that the parties provide a document regarding the final agreed upon settlement terms.  Also, the Applicant chose arbitration and agreed to the procedural rules and equitable rulings.  The Insurance Law did not permit a provider to continue delaying a claim to permit unjust interest accrual.

Therefore, the settlement was confirmed with interest from date of filing until the date the settlement was reached.

Finally, the assigned arbitrator cautioned that had the insurer’s counsel requested administrative costs they would have been imposed upon the Applicant.  He determined that the arbitration filing was warranted but Applicant’s continuous pursuit of arbitration “after a full offer of settlement was frivolous and without factual or legal merit.”  The assigned arbitrator concluded with placing Applicant’s counsel on notice “that if this issue is again raised this arbitrator will consider imposition of the Applicant of the administrative costs of this arbitration as well as additional sanctions.”

11/28/11         Applicant v. Allstate Ins. Co.
Arbitrator Thomas J. McCorry, Erie County
Applicant Not Entitled to Lost Wages as Laid Off from Seasonal Job and Not Due to Injuries from Accident
Our own Margo Lagueras handled this one, great job Margo!

The Applicant sought lost wages arising out of a December 23, 2004, motor vehicle accident.  Applicant claimed at the time of the accident she was working at Holiday Candy Corporation as a temporary worker through a temp. agency.  The insurer delayed the claim pending receipt of an employer’s wage verification and doctor’s disability note.

The insurer received the wage verification which indicated that while the Applicant missed work on December 23rd because of the accident, she was subsequently laid off and not dismissed from injuries from the accident.

The insurer submitted an affidavit from the claims processor assigned to the claim from its inception that the Applicant never submitted disability notes or made a further claim for wage benefits until the arbitration demand was filed in October 2010.

The assigned arbitrator noted that this case was scheduled for five different hearings, most being adjourned due to difficulties or objections to Applicant’s interpreter.  At the final hearing, the owner of Holiday Candy testified that the Applicant was a temporary worker and laid off on January 4, 2005.  The lay-off was unrelated to any injuries the Applicant may have sustained from the accident.  The assigned arbitrator indicated that the owner’s testimony was credible, despite Applicant’s dispute with it, and was affirmed by the documentary evidence.  Also, the owner was found to be an unbiased witness and based upon his testimony the Applicant’s claim was denied.  The assigned arbitrator finally noted that it was troubling that the Applicant chose to bring this claim almost six years after the denial was issued.

LITIGATION

12/06/11         Socrates Med. Health, PC a/a/o Juan Acevedo v. Praetorian Ins. Co.
Appellate Term, First Department
Insurer Prevails on Failure to Appear for Scheduled IMEs
The plaintiff’s complaint should have been dismissed as the insurer demonstrated failure to appear for scheduled independent medical examinations.  The insurer established proper mailing of the examination notices and that the assignor failed to appear.

11/29/11         Westchester Med. Ctr. a/a/o Gregoria Young v. Progressive Cas. Ins. Co.
Appellate Division, Second Department
Failure to Rebut Insurer’s Showing Results in Insurer Obtaining Summary Judgment
The plaintiff’s summary judgment motion on the first cause of action should have been denied as the plaintiff moved for summary judgment on the ground that the insurer failed to timely pay or deny the claim.  The insurer created an issue of fact precluding summary judgment as it established that it issued a timely denial of the claim.  Yet, the insurer failed to rebut the plaintiff’s prima facie case on the second cause of action thus plaintiff was properly granted summary judgment.  However, the insurer on the third cause of action demonstrated that the claim was paid in a timely fashion.  Thus, the plaintiff’s motion should have been denied.

Liening Tower of Perley
Michael F. Perley
[email protected]

Recent Medicare Decisions

On November 21, 2011, the Sixth Circuit rendered a decision in a Hadden v. United States of America, a case involving an attempt to compromise reimbursement for conditional payments.  The news was not good for plaintiff’s attorneys which may mean that defendants will face stiffer challenges in resolving matters in the future.

In addition, one circuit court has determined that the United States cannot be included as a party on an interpleader basis based upon their interest in the outcome for a Medicare beneficiary.  Rather than bringing these issues closer to resolution, these two cases maintain the uncertain status quo.

Hadden v U.S., 211 U.S. App. LEXIS 23289, 2011 FED App 02939P (6th Circuit)

The plaintiff, Vernon Hadden, was injured in an automobile accident involving a vehicle owned by Pennyrile Rural Electric Cooperative Corporation.  All parties apparently agreed that the Pennyrile vehicle was caused to strike Mr. Hadden due to the negligence of an unidentified driver.  The matter was settled for $125,000, considered by the plaintiff to be a severe compromise.  From the time of the accident until the time of settlement, the plaintiff had incurred medical expenses totaling over $82,000.  All bills were paid by Medicare and, after the settlement was concluded, the plaintiff sought to compromise his obligation to reimburse Medicare, alleging that the settlement was only 10% of what Mr. Hadden was actually entitled to and, therefore, Medicare should receive only 10% of what it paid in his medical expenses.  CMS disagreed, as did the administrative law judge who heard the appeal.  The matter was then taken to the district court which affirmed the holdings of the Appeals Counsel and the matter was argued in the Sixth Circuit in October of 2010.  The plaintiff mounted every argument he could think of to convince the Circuit that Medicare’s recovery should be reduced, to no avail.  Perhaps the most appealing argument was brought under 42 U.S.C. § 1395gg, under which the plaintiff appealed to the court’s equitable jurisdiction to compromise the claim.

In the end, the Sixth Circuit held that Hadden was required to reimburse Medicare for the full amount of its payments less procurement costs.

The plaintiff’s main problem in this case appears to be that he did not attempt to negotiate a compromise prior to entering into the settlement.  Based upon the CMS rules, such an attempt is very difficult, if not impossible.  CMS only issues a final demand letter when they are advised that the case has settled.  In my discussions with plaintiff’s counsel, I found that it is difficult to speak to anyone at CMS prior to that time.

This is not good news for plaintiffs and, as a result, may not be good news for defendants either.  Compromised settlements based upon questionable liability become more difficult when the full amount of a Medicare reimbursement is part of the equation.

 

Oney v. Begi, 2011 U.S. Dist. LEXIS 118514 (Southern District of Ohio)
The plaintiff’s attorneys in Oney tried to avoid the problem that Mr. Hadden had in the Sixth Circuit.  After filing the lawsuit, they made a motion to compel joinder of the United States Department of Health and Human Services as a necessary party pursuant to Rule 19 of the Federal Rules of Civil Procedure.  They were confronted with a motion from the United States Government to dismiss the complaint on the grounds that it was protected by the Doctrine of Sovereign Immunity.  Unfortunately, the Oneys were unable to identify any waiver of the Sovereign Immunity on the part of the Department of Health and Human Services and their motion for joinder was denied.

It is becoming evident that engaging CMS or the federal government prior to the disposition of a case involving Medicare is approaching impossible.  This leaves all parties without guidance as their cases move through discovery toward disposition.  The watch words remain “be careful” and approach settlements with the expectation that Medicare will seek full reimbursement (less procurement costs) of its prior conditional payments and will require that its interests be protected for current and future Medicare beneficiaries who require medical treatment for the injuries they sustained after the settlement.

 

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

12/01/11         Thomas v City of Oneonta
Appellate Division, Third Department
Continuous Violation Doctrine Does Not Save Plaintiff’s Claim from Failure to Assert a Timely Notice of Claim
Plaintiff was employed as a police officer for the City of Oneonta.  It was in this capacity that he disclosed to his superiors the alleged misconduct on the part of other officers on the force.  Approximately one week after making the disclosures, plaintiff was reassigned to the midnight shift, he was switched to weekend patrols (from weekdays) and was assigned additional duties.  The changes were all made in early October of 2009. 

After complaining to his superiors about the treatment, plaintiff resigned his position on November 2, 2009.  His last day on the job was November 15, 2009.  Plaintiff then filed a Notice of Claim alleging constructive discharge on February 5, 2010.  He later commenced the instant action by service of a Summons and Complaint on November 3, 2010. 

Upon receipt, defendant moved to dismiss alleging that the matter was time barred.  Essentially, defendant argued that under General Municipal Law § 50(e) Notice of Claim must be provided with 90 days of the event giving rise to the claim.  Moreover, any action must be commenced within one year of the allegedly “retaliatory personal action” per the established deadlines in Labor Law § 740.  Since the alleged retaliatory action had taken place in late September/early October, plaintiff’s action was in violation of both statutes of limitation.

Plaintiff argued that the “continuous violation” doctrine saved his claim.  Under plaintiff’s theory, because the retaliatory action continued until the time of this resignation on November 15, 2010 his action was timely.  The Third Department disagreed by holding that the continuous violation doctrine did not apply here because the alleged violation “constitute[d] a single distinct act.”  Accordingly, the statute began to accrue from the date of the act, and as such plaintiff’s claim was time barred.

11/29/11         Milosevic v. O'Donnell
Appellate Division, First Department
News You Can Use (but Hopefully Won’t Have to):  No Respondeat Superior Liability on Employer Where CFO Attacks a Co-Worker at Office Party
With Holiday parties ramping up over the coming weeks, we thought we’d share this gem.  Plaintiff commenced this action against his employer and his employer’s CFO as a result of an altercation that occurred during a company party.  Plaintiff alleges that his employer’s drunk CFO attacked him “for no apparent reason” after he (the drunk CFO) “lost control of his senses.”  The instant lawsuit alleges personal injury claims against the CFO, as well as respondeat superior liability against the employer.  Plaintiff also commenced a common law negligence claim against the employer for sponsoring the event.

In dismissing the respondeat superior claims, the First Department noted that an employer will not be liable “if the assault was not within the scope of the employee’s duties, and there is no evidence that the assault was condoned, instigated or authorized by the employer.” 

In dismissing plaintiff’s common law negligence claim, the Court noted that was no evidence that the employer controlled the party which occurred at an off-premises location.  Further, the Court noted that there was likewise no evidence that the employer was aware of any violent propensities exhibited by its CFO when drinking. 

Peiper’s Point –It has long been accepted that every dog gets one bite.  For the employer, it now appears that every CFO gets at least one punch.  Tis’ the Season!

11/29/11         Reilly v Garden City Union Free School District
Appellate Division, Second Department
Plaintiff’s Time, Under General Obligations Law § 50e, to File a Notice of Claim for Emotional Distress Did Not Start Until the Discovery of Allegedly Distressing Material
The Plaintiff commenced the instant claim seeking damages for intentional infliction of emotional distress as a result of a certain publication issued by defendants.  Plaintiff discovered the material on June 26, 2008.  Thereafter, plaintiff filed a Notice of Claim, and, ultimately, commenced the instant lawsuit. 

Defendants moved to dismiss the case on the basis that plaintiff’s Notice of Claim was filed more than 90 days after the publication of the document.  The Second Department was not buying it.  In finding the claim timely commenced, the Court stated that the time to file a Notice of Claim accrued from the date of the alleged emotional distress.  Thus, it was not when the article was published, but rather when it was read by plaintiff, which triggered the Notice of Claim requirement.  Here, because the Notice of Claim was filed within 90 days of the discovery, plaintiff’s action was not time barred. 

11/22/11         IMP Plumbing & Heating Corp. v 317 E. 34th St., LLC
Appellate Division, First Department
For Indemnity Claims, the One Year Abandonment Doctrine Does Not Trigger Until the Proposed Indemnitee Actually Incurs a Loss
Plaintiff served as a plumbing subcontractor at a construction project owned by New York University.  When plaintiff was not paid, it asserted a lien against NYU and the defendant general contractor, 317 East.  Upon service of the action, NYU appeared and immediately asserted a cross-claim against 317 East for contractual and common law indemnification. 

Apparently, 317 East never appeared in either the main party action or in response to NYU’s cross-claims.  More than a year later, NYU moved for a default judgment against 317 East on the basis of the aforementioned cross-claims.  The trial court denied the motion on the basis that NYU was deemed to have abandoned its cross-claims by waiting more than one year to assert the default motion.

In reversing the trial court, the First Department noted that the one year standard for abandonment of defaults was not applicable to cross claims until there had been a finding of liability against the proposed indemnitee.  Where, as here, there had been no finding of liability, the time to pursue a default against 317 East had not yet ripened.  

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

Circular Letter No. 13

            According to the Albany Times Union, this Circular Letter was issued after FEMA contacted insurance companies around the state and issued a letter to Superintendent Lawsky informing both that FEMA believes that only federal law regulates the Standard Flood Insurance Policy.  As you may recall, very shortly after Tropical Storm Irene, the DFS was active and vocal about ensuring prompt payment of the flood claims.

            Circular Letter 13 states “The purpose of this Circular Letter is to remind insurers that, as stated in Circular Letter No. 15 (1996) the requirements of Insurance Law §2601 and 11 NYCRR Part 216 (Regulation 64) apply fully to insurers providing coverage through the National Flood Insurance Program (“NFIP”) Write Your Own Program (“WYO”).

            The Circular Letter continues on to remind insurers that Ins. Law §2601 applies to all claims processed in New York, and that insurers may not engage in unfair claims settlement practices.  The Circular Letter reiterates the following practices as unfair claims settlement practices:

•  Knowingly misrepresenting to claimants pertinent facts or policy provisions relating to coverage at issue;
• Failing to acknowledge with reasonable promptness pertinent communications as to claims arising under its policies;
• Failing to adopt and implement reasonable standards for the prompt investigation of claims arising under its policies;
• Not attempting in good faith to effectuate prompt, fair and equitable settlements of claims submitted in which liability has become reasonably clear…;
• Compelling policyholders to institute suits to recover amounts due under its policies by offering substantially less than the amounts ultimately recovered in suits brought by them…

 

The Circular Letter also then reminds insurers that Regulation 64 provides more detailed requirements such as the requirement to commence investigation within 15 days of receiving notice of the claim.

            DFS states that the fact that NFIP is a federal program does not affect the applicability of Insurance Law §2601 and Regulation 64 because the NFIP does not expressly preempt state claims handling or other laws.  In support of this position, the DFS cites the regulations implementing the National Flood Insurance Act wherein it states that WYO insurers are “subject to audit examination, and regulatory controls of the various States.”  Further, FEMA regulations also require WYO insurers to process flood claims in the same manner as the insurer processes its claims for all other policies.

            Further, DFS finds that Ins. Law §2601 and Regulation 64 are substantially consistent with FEMA standards.  As a result, no conflict preemption is needed.  DFS also assures insurers that to the extent FEMA regulations provide more stringent standards than New York’s laws and regulations, an insurer complying with the stricter standards will be in compliance with New York’s standards. 

Superintendent Lawsky’s Testimony Before The Joint Hearing of The NYS Assembly Committee on Insurance, Committee on Banks and Committee on Oversight, Analysis and Investigation

On December 1, 2011, Superintendent Lawsky spoke to the members of the above referenced Assembly committees.  His speech summarized the reasoning for the merger of the Insurance and Banking Departments, the goals and actions that have already taken place.

Superintendent Lawsky stated that when he was appointed the Superintendent of Financial Services, the Governor gave him three priorties

•  Help the industries we regulate thrive and create jobs;
• Do a better and smarter job of protecting consumers and preventing systemic risk; and
• Operate more efficiently.

To achieve this, the Department has been organized into five divisions: (1) Insurance, (2) Banking, (3) Financial Frauds and Consumer Protection Division (4) Real Estate Finance Division and (5) Capital Markets Division.

Superintendent Lawsky spoke about the Department’s early success in encouraging health insurers to make the details of rate requests public information, the decreased regulation of commercial insurance policies and the work done by the department in the aftermath of Tropical Storms Irene and Lee.  In 2012, it appears that a major focus of the Department will be the costs of health insurance to small business and the creation of a health insurance exchange to aid with this issue.

If you would like a copy of his speech, please let me know and I will gladly forward it to you.

 

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

11/2/11           Intervest Construction of Jax, Inc.  v. General Fidelity Ins. Co.
Eleventh Circuit Court of Appeals - Florida
Questions Certified to Florida Supreme Court
This controversy is between the insured, Intervest Construction of Jax, Inc. and ICI Homes, Inc. [collectively “ICI”], and their insurer, General Fidelity Insurance Company [“General Fidelity”], over whether General Fidelity breached its obligations under a CGL policy issued to ICI.  The coverage dispute arose out of a personal injury lawsuit filed against ICI by an injured homeowner.

In 2000, ICI contracted with Custom Cutting, Inc. for Custom Cutting to provide trim work, including installation of attic stairs in a residence that ICI was in the process of building.  The contract between ICI and Custom Cutting contained an indemnification provision requiring Custom Cutting to indemnify ICI for any damages resulting from Custom Cutting’s negligence.

In April 2007, the owner of the residence constructed by ICI, fell while using the attic stairs installed by Custom Cutting.  The owner later filed suit against ICI but not Custom Cutting.  In turn, ICI sought indemnification from Custom Cutting under the terms of the subcontract.  At the time Custom Cutting maintained a CGL policy with North Pointe Insurance Company – ICI was not an additional insured on the policy.  ICI was insured by General Fidelity at the time of the accident.  The General Fidelity policy contained a Self-Insured Retention [“SIR”] endorsement in the amount of $1,000,000.

ICI, Custom Cutting, North Pointe, General Fidelity and the injured property owner participated in mediation.  The parties agreed to a $1.6 million settlement. As part of the settlement, North Pointe agreed to pay ICI $1,000,000 to settle ICI’s indemnification claim against Custom Cutting.  ICI, in turn, would pay that $1,000,000 to the property owner.  A dispute then arose as to whether ICI or General Fidelity was responsible for paying the property owner the other $600,000.

The crux of the dispute focuses on the SIR endorsement and the transfer of rights clause.  The SIR endorsement states that General Fidelity will provide coverage only after the insured has exhausted the $1,000,000 SIR.  The transfer of rights clause, on the other hand, grants the insurer some subrogation rights, the extent of which was disputed by the parties.

ICI argued that North Pointe’s contribution of $1,000,000 to settle ICI’s indemnification claim, which was then passed on to the injured owner, satisfied the SIR obligation in the General Fidelity policy, and that General Fidelity was required to pay the remaining $600,000.

General Fidelity argued that North Pointe’s $1,000,000 payment to settle the indemnity claim did not reduce the SIR because the payment originated from Custom Cutting.

There was no disagreement that had ICI borrowed the $1,000,000 from a bank, deposited those funds, and then used those funds toward the settlement, that money would be credited toward the SIR.  The more difficult question is whether a separate insurance policy previously obtained by ICI to recover the retained amount could reduce the SIR.  Unlike the district court, the 11th Circuit Court of Appeals [“Court”] was not persuaded by the California cases cited by General Fidelity which establish that money derived from additional policies cannot be used to satisfy the SIR.  The Court noted that the particular language at issue in the General Fidelity policy was different from the language in the policies at issue in the California cases.  The Court found the California cases to be materially different for two reasons:  (1) the General Fidelity policy did not contain an explicit provision addressing the precise issue in question; and, (2) the language of the General Fidelity policy is arguably less restrictive than the language of the policies at issue in those cases.

The Court opined that the payment made from one’s “own account” [language in the California cases] was not necessarily the same as requiring that the retained limit by paid “by you” [language in the General Fidelity policy].  The Court then stated that a strong argument could be made that ICI exhausted its SIR because it paid for the protection afforded in the indemnification clause, i.e., ICI paid for that indemnity protection in the purchase price of the Custom Cutting subcontract and therefore hedged its retained risk, just as it could have paid for a load or paid a premium on an insurance policy. 

In summary, the court determined that without the language found in the California cases cited by General Fidelity, ICI’s indemnification clause appears on its face to be more permissive.  The question here is whether in the absence of any other provision requiring payments directly from the insured’s own account or expressly prohibiting the use of indemnification payments to satisfy the SIR, can a bargained-and-paid for right to indemnification serve to satisfy the SIR?  This is an unsettled issue in Florida so the Court certified the following question to the Florida Supreme Court:

Does the General Fidelity policy allow the insured to apply indemnification payments received from a third-party toward satisfaction of its $1,000,000 Self-Insured Retention?

An additional, related issue, was also before the court, i.e., whether the “made whole doctrine” applies or whether the parties contracted around that doctrine given the language of the transfer of rights provision.  Assuming that ICI could apply the funds it received to satisfy its SIR, the issue then becomes whether the transfer of rights provision in the General Fidelity policy gave ICI or General Fidelity the priority to recover.

The Court noted that pursuant to the transfer of rights provision both ICI and General Fidelity have some rights, but the language was completely silent as to who has priority to recover when the indemnity amount is insufficient to “make whole” both parties.  ICI argued that General Fidelity is not entitled to recover under the subrogation agreement because the plain language of the transfer of rights provision allows General Fidelity to recover only for payments “we have made”, and, at the time it received the indemnification payment from Custom Cutting, General Fidelity had not yet made any payment.  ICI also argued that even if the court disregards the tense of the language, the General Fidelity policy did not abrogate the “made whole doctrine” and thus ICI has priority to receive any indemnification before General Fidelity.

General Fidelity argued that the court cannot place excessive emphasis on the tense of the language, and further that the transfer of rights provision in the General Fidelity policy abrogated the common law rule of the “made whole doctrine” by writing into the General Fidelity policy priority rights for General Fidelity.

After hearing argument on the transfer of rights issued the district court found in favor of General Fidelity, and ICI appealed.  Relying on the express language of the General Fidelity policy, the district court emphasized that the General Fidelity policy required that the payments be made “by you [the insured]” and in other clauses required payments “by the insured”.  The district court concluded that, because the payments did not originate from ICI, Custom Cutting’s contribution to the settlement did not count against ICI’s self-insured retention.

Due to the lack of controlling precedent in Florida, the Court certified the following question to the Florida Supreme Court:

Assuming that funds received through an indemnification clause can be used to offset the Self-Insured Retention, does the transfer of rights provision found in the General Fidelity policy grant superior rights to be made whole to the insured or to the insurer?

We will monitor this case and update you once the Florida Supreme Court renders its decision.

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

12/2/11           Paris Suites Hotel, Inc. v. Seneca Ins. Co., Inc.
Supreme Court, Queens County
If an Insurer Denies Coverage for a Loss, It Does Not Have Standing to Bring a Subrogation Claim Against an Allegedly Negligent Party
This decision addresses whether an insurance company sued for breach of contract (i.e. nonpayment) has standing to bring a third-party action, based on subrogation, against the allegedly negligent tortfeasor.  A claim of subrogation is premised on the concept that the party who causes injury or damage should be required to bear the loss by reimbursing the insurer for payments made on behalf of the injured party.  Here, defendant denied plaintiffs’ claim, under a builder’s risk insurance policy, for water damage to their hotel.  At the time of the loss, the hotel was being expanded, with two additional stories being erected atop the existing structure. 

After being sued, defendant brought a third-party subrogation action against the general contractor, a subcontractor and the project’s architect.  These parties moved to dismiss portions of the complaint for failure to state a cause of action.  They argued that defendant had no standing to prosecute a claim based upon subrogation because it never paid the plaintiffs’ claim.  The court agreed that an insurer’s right of subrogation does not accrue until payment of the loss.  Thus, the subrogation claim was dismissed. 

However, defendant also asserted that it was a contractual subrogee of plaintiffs.  Pursuant to the insurance contract, it provided that “[i]f any person or organization to or for whom we make payment under this Coverage Part has rights to recover damages from another, those rights are transferred to us to the extent of our payment.”  While on the face of this provision, it likewise appears to require actual payment, the court found otherwise.  In its opinion, based on case law in New York, this provision did not preclude suit by defendant prior to payment.  Thus, this claim was not dismissed. 

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

METH LAB BLOWS UP INTO COVERAGE DISPUTE

            The recent case of State Farm Fire and Casualty Co., v. Groff, 2011 WL 3937917 (E.D.OKLA. Sept 7, 2011), dealt with a coverage denial for contamination for damage to a rental house caused by a methamphetamine lab.  The District Court ruled that State Farm did not act in bad faith when it invoked a contamination exclusion in the policy and denied coverage for damage to the property caused by the drug lab. 

            The case involved a rental house in Oklahoma owned by the Groffs.  A tenant allegedly damaged the property by manufacturing meth on premises.  The Groffs submitted a claim to State Farm which denied the claim based on a contamination exclusion and then sought a declaratory judgment absolving it of any duty to indemnify for that contamination.  The Groffs sued State Farm for breach of contract and bad faith, the two cases were consolidated, and the litigation proceeded.  State Farm moved for summary judgment and the Magistrate Judge granted summary judgment to State Farm with respect to any loss allegedly caused by “contamination.” 

            The policyholders claimed that the term “contamination” was ambiguous, and that the making of drugs inside the property constituted vandalism which was a covered cause of loss.  The Court noted that the policy did not define “contamination”, but used a dictionary definition as “To render unfit for use by the introduction of unwholesome or undesirable elements.”  Based on this definition, the Court concluded that meth fumes and residue on surfaces in the house fell within the ordinary definition of contamination as unwholesome elements introduced into the house that rendered it unfit for use.

            However, the policyholders’ claims did not completely go up in fumes, since the Magistrate Judge said they could proceed with certain other claims not caused by the drug making such as holes in the walls, broken windows, and corrosion to household fixtures, since there were issues as to whether certain damages were due to the “contamination” as opposed to vandalism or other covered causes of loss.  As to certain claims, the Court ruled that the Groffs might be entitled to some coverage for the damage.

            In this case, the policy did not define “contamination”, but insurance companies should rely upon policy definitions or turn to dictionary references for definitions if, for some reason, a claim or term is not specifically defined in the policy.  This case also indicates that coverage litigation may best be litigated on behalf of the insurance company in federal court as opposed to state court since, perceptively, federal court judges will more objectively apply insurance policy terms and conditions or other appropriate language and authorities to a given dispute. 

 

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

12/06/11         Cambridge Mutual Fire Insurance Co. v. Saxon
Appellate Court of Connecticut
Litigation Concerning Commercial Development of Property Triggered a Business Exclusion; Insurer Not Estopped from Denying Defense and Indemnity
The defendant was a named insured on a homeowner’s insurance policy issued by the plaintiff. The defendant filed an amended complaint against Joyce Manager and others alleging they breached a prior settlement agreement by speaking at public hearings in opposition to the defendant’s proposed property development. Manager filed a five count counterclaim alleging abuse of process, unintentional infliction of emotional distress, intentional infliction of emotional distress and violations of the Connecticut Unfair Trade Practices Act. The plaintiff initiated the declaratory judgment action to determine whether it owed defendant a duty to defend or indemnify against Manager’s counterclaim. Plaintiff’s insurance policy contained a business exclusion and defined a business as including a trade profession or occupation. In the counterclaim, Manager alleged that the defendant was acquiring property in Connecticut for the purpose of building a shopping center. The trial court determined that no genuine issue of material fact existed as to whether the counterclaim arose from the defendant’s business activities. The Appellate Court of Connecticut affirmed. The appellate court then addressed the estoppel argument as defendant argued the insurer was estopped from denying coverage as plaintiff provided a defense without reserving its rights to deny coverage. The court noted that generally there must be some intended deception on the part of the party to be estopped which the court found absent. The court concluded that plaintiff was not estopped from asserting its business exclusion.
Submitted by: Stacy Broman, Meagher & Geer, PLLP

12/02/11         The Travelers Indem. Co. of Connecticut v. Miller
Alabama Supreme Court
Claimant’s Notice to Defendant’s Insurer After Default Judgment WAS Entered Against Insured Was Untimely and Barred Claimant from Recovering Under Defendant’s Policies
In 2005, Miller entered into a contract with Smith to purchase a house and move it. Smith was to move the house, pour the foundation and place the home on a new foundation. Miller paid Smith for the house and the services. The foundation was improperly poured and did not fit and the house was damaged in the move. In January of 2006, Miller sued Smith. Smith did not answer the complaint and Miller applied for default. A default judgment was entered in March 2006. In May 2006, Miller’s counsel attempted to contact Travelers, the insurer for Smith. In October 2006, Travelers denied coverage based on the lack of notice because Travelers had not received notice until July 2006, after the default had been entered. The Court noted that Smith did not provide Travelers with notice of the occurrence nor did Smith forward copies of the complaint filed against it by Miller. Miller did not offer any excuses for Smith’s delay in failing to notify Travelers. Miller’s notice to Travelers after the default judgment was entered was untimely. The Court noted that as notice was provided after the default was entered, Travelers never had the opportunity to control the litigation because judgment had been entered before Travelers had knowledge of the lawsuit. Therefore, Miller was barred from recovering under the Travelers policies issued to Smith.
Submitted by: Stacy Broman, Meagher & Geer, PLLP

 

Reported Decisions

B.R. Fries & Associates, LLC v. Illinois Union Ins. Co.

Rubin, Fiorella & Friedman LLP, New York (James M.
Haddad of counsel), for Illinois Union Insurance Company, appellant.
Shay & Maguire, LLP, East Meadow (Jaret SanPietro of
counsel), for Virginia Surety Company, Inc., appellant.
Melito & Adolfsen P.C., New York (S. Dwight Stephens of
counsel), for respondents.
Judgment, Supreme Court, New York County (Louis B. York, J.), entered November 10, 2010, against defendants Illinois Union Insurance Company and Virginia Surety Company, Inc., and in favor of nonparty Zurich American Insurance Company in the amount of $344,099.74, unanimously modified, on the law, to declare that defendant Virginia Surety Company, Inc. is not obligated to defend or indemnify plaintiffs, and to vacate the money judgment as against it, to declare that defendants are not obligated to defend or indemnify plaintiffs 168 Street Jamaica, LLC (168 Jamaica) and 166-28 Jamaica Avenue, LLC (166 Jamaica), and to reduce the amount of the judgment in favor of Zurich American and against Illinois Union by the principal amount of $32,681, and otherwise affirmed, without costs. Appeals from orders, same court and Justice, entered May 13, 2010, which granted plaintiffs' motions for summary judgment and referred the amount of damages to a special referee, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Defendants contend that this action should be dismissed because plaintiffs sustained no damages, since Zurich paid all their legal fees and expenses in the underlying personal injury action. Under the circumstances, forcing Zurich to commence another action in its own name would not "secure the just, speedy and inexpensive determination" of this action (see CPLR 104). We note that the policy that Zurich issued to plaintiff Fries states that if Zurich's insurance is excess but no other insurer defends Fries and its additional insureds, Zurich will defend, but it "will be entitled to the insured's rights against" the non-defending insurers. The policy also states, "If the insured has rights to recover all or part of any payment we [Zurich] have made . . ., those rights are transferred to us . . . At our request, the insured will bring suit' or transfer those rights to us and help us enforce them."

Plaintiffs 168 Jamaica and 166 Jamaica are not entitled to defense or indemnification under the policies. Defendants' additional insured endorsements cover organizations required by contract with the named insureds. The contracts of defendants' named insureds require plaintiffs Fries, Home Depot, "and all other parties required of [Fries]" to be included as additional insureds. Plaintiffs presented no evidence that Fries was required to include either 168 or 166 Jamaica as an additional insured. Nor are the Jamaica LLCs included as "Owners." The contracts between Fries and defendant J.C. Steel Corp. (Illinois's insured) and between Fries and defendant Atlas Concrete Construction Corp. (Virginia's insured) define "Owner" as Home Depot. Since the denial of coverage was based on lack of coverage pursuant to the additional insured endorsement, Illinois was not required to issue a timely disclaimer (Hunter Roberts Constr. Group, LLC v Arch Ins. Co., 75 AD3d 404, 407 [2010]; see also e.g. Albert J. Schiff Assoc. v Flack, 51 NY2d 692, 700 [1980] ["the defense of noncoverage . . . is never waived by a failure to assert it in a notice of disclaimer"]).

Virginia Surety has no duty under its policy to defend Fries and Home Depot as additional insureds. Under the liability policy it issued to Atlas - the contractor that performed the concrete work for the project - additional insureds are covered only to the extent liability arises out of Atlas's work. Plaintiffs' interpretation of Virginia's policy, to the effect that it creates additional insured coverage "as required by written contract" without limitation, would leave the endorsement captioned "Additional Insured — Owners, Lessees or Contractors — (Form B)" without force and effect. The interpretation offered by Virginia Surety gives meaning to both that endorsement and endorsement IL 12 01 11 85 (see Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208, 221-222 [2002]). Not only was it ultimately determined that there was no liability arising out of Atlas's work, but there was nothing in the underlying complaint to justify any inference that liability might arise out of Atlas's work. The bare mention of anchor bolts in the bill of particulars in the underlying personal injury action was insufficient.

The record does not demonstrate that Illinois Union failed to disclaim on the ground that plaintiffs failed to cooperate in its investigation and thereby waived the defense (see Continental Cas. Co. v Stradford, 11 NY3d 443, 449-450 [2008]). However, Illinois Union did not satisfy its heavy burden of establishing that plaintiffs wilfully failed to cooperate (see Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 168 [1967]). For instance, it failed to demonstrate that it made the requisite efforts to bring about Zurich's cooperation with respect to the conflict of interest issue (see Thrasher, 19 NY2d at 168), since there is no indication that during the four months between March 7, 2007 (when Zurich suggested to Illinois that there was a conflict of interest in having the same lawyer represent both Fries and Home Depot) and July 6, 2007 (when Illinois threatened to disclaim for lack of cooperation), Illinois ever asked Zurich to explain the claimed conflict of interest. Similarly, with respect to Zurich, Fries and Home Depot's alleged refusal to turn over files, Illinois Union failed to show that it made efforts to respond to the additional insureds' expressed hesitations or concerns.

We reject defendants' contentions that the claimed legal fees were unreasonable, that the special referee improperly determined the reasonableness of the fees, and that Zurich acted as a volunteer.

Finally, to the extent the determination of Zurich's entitlement to reimbursement for its defense costs includes the charges for counsel for the Jamaica LLCs, the total must be reduced by that amount since 168 Jamaica and 166 Jamaica are not entitled to defense or indemnification under the policies.

GJF Construction, Inc. v. The Sirius America Ins. Co.

Melito & Adolfsen P.C., New York (S. Dwight Stephens of
counsel), for appellants.
Rubin, Fiorella & Friedman, LLP, New York (Paul Kovner of
counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Richard F. Braun, J.), entered on or about December 21, 2010, after a nonjury trial, declaring that the insurance policy issued by defendant Sirius America Insurance Company does not afford additional insured coverage to plaintiff GJF Construction, Inc. or plaintiff 101 Park Avenue Associates, LLC for claims asserted against them in an underlying personal injury action, affirmed, without costs.

All concur. Manzanet-Daniels and Román, JJ. concur in a separate memorandum by Román, J. as follows:

ROMAN, J. (concurring)

In this declaratory judgment action we find that where the insurance policy requires that the insurer be given notice of any additional insureds which its policy is intended to cover, the failure to provide such notice precludes coverage as to any such additional insured.

The insurance policy contains an endorsement amending the policy to include, as insureds, persons or organizations "as on file with company." While a written request was made to add 101 Park Avenue Associates to the policy, the record fails to indicate that such a request was made with regard to GJF Construction. Contrary to plaintiffs' contention, the act of requesting that an additional insured be named under the policy was not a purely ministerial act whose failure should be excused, because while not the only act required by the policy to have the person or organization named as an additional insured under the policy, it was a critical and material act which would have given defendant the option to deny coverage. Accordingly, while it is true that "[w]hen a substantial performance is shown, the party claiming the benefit of the contract should not be defeated for the want of a literal compliance as to some unimportant detail." (Porter v Traders' Ins. Co. of Chicago, 2 Bedell 504, 509 [1900]; see also Jacob & Youngs, Inc. V Kent, 230 NY 239, 241 [1921]), here the failure to provide defendant with notice that GJF was an additional insured deprived defendant from exercising its right to deny coverage under the policy (Blumberg v Paul Revere Life Ins. Co., 177 Misc2d 680, 682 [1998] ["The general rule is that an insurance application constitutes nothing more than an offer to the insurer, which it may accept or reject after determining whether an applicant is a desirable risk"]), such that the failure to fully comply with the policy cannot be deemed unimportant (cf. Anderson Clayton & Co. v Alanthus Corp., 91 AD2d 985, 985 [1983] [plaintiff not excused from contractual obligations when defendant had substantially performed and its breach was trivial in nature]).

The trial court erroneously treated the letter sent by defense counsel to plaintiffs' counsel, advising that GJF was an additional insured under the policy, as an informal, rather than a formal, judicial admission. A formal judicial admission takes the place of evidence and is conclusive of the facts admitted in an action (People v Brown, 98 NY2d 226 n 2 [2002]). The hallmark of a formal judicial admission is that it "dispenses with the production of evidence by conceding, for the purposes of the litigation, the truth of a fact alleged by the adversary" (id. [internal quotation marks omitted]).

Here, on February 26, 2008, in response to plaintiffs' letter dated January 14, 2008, wherein plaintiffs stated that they "need[ed] either a letter . . . confirming that . . . GJF Construction, Inc. . . . [was an] . . . additional[] insured[] . . . under the . . . policy . . . or deposition dates for the Sirius underwriter," defendant sent plaintiff a letter, wherein defendant, clearly in order to avoid producing a witness from its underwriting department, acknowledged that GJF was an additional insured. On June 3, 2008, months after its initial letter and after plaintiffs filed their note of issue and made a motion in reliance on defendant's representation, defendant contended that its letter acknowledging that GJF was an additional insured was sent in error and retracted its statement by telephone and in writing. Certainly, defendant's statement had all the trappings of a formal judicial admission, and it was thus bound by it (Brown at 226 n 2; Burdick v Horowitz, 56 AD2d 882, 883 [1977] [statement made by defendant's counsel during a deposition, to preclude line of questioning, deemed a binding formal judicial admission]).

Contrary to the position taken by our concurring colleagues, while defendant ultimately produced its underwriter, a witness employed by its agent, it did so only after plaintiffs had already relied on defendant's representation to their detriment and notably only after the close of discovery. Accordingly, on these facts, it is evident that defendant's representation was designed to preclude the exchange of discovery and the production of defendant's witness did not make its prior admission any less binding. Moreover, we decline to limit the ambit of what constitutes a formal judicial admission to where within a proceeding, a letter, affirmation or deposition, happens to manifest itself. Guided by Court of Appeals precedent we instead think it more prudent to adhere to the definition promulgated in Brown, aptly applicable here-where plaintiff forewent discovery and relied on defendant's representation to support its motion for summary judgment-which defines a formal judicial admission as an admission made to avoid having to produce discovery on a fact at issue (Brown at 226 n 2). Notwithstanding the foregoing, defendant's formal judicial admission acknowledging that GJF was an additional insured under the policy fails to confer coverage to GJF since, as noted above, there was no compliance with a critical contractual provision of the insurance policy and even by formal judicial admission, defendant an insurer, cannot be compelled to provide coverage where none exists by waiver (Albert J. Schiff Assoc. v Flack, 51 NY2d 692, 698 [1980]; Drew Chem. Corp. v Fidelity & Cas. Co. of N.Y., 60 AD2d 552, 552 [1977], affd. 46 NY2d 851 [1979]).

101 Park Avenue Associates failed to demonstrate that it acted reasonably and with due diligence in notifying defendant of the claim. In fact, 101 Park Avenue Associates never directly notified defendant of the claim at all, simply tendering it to GJF, who then tendered the claim to defendant 51 days after 101 Park Avenue Associates was first notified of the incident underlying the claim. While a justifiable lack of knowledge of insurance coverage may excuse a delay in reporting an occurrence, 101 Park Avenue Associates adduced no evidence that it made any effort, let alone reasonably diligent efforts to ascertain whether coverage existed pursuant to the project contract in order to promptly notify defendant (see Winstead v Uniondale Union Free School Dist., 201 AD2d 721, 723 [1994]). As such, 101 Park Avenue Associates's failure to directly notify defendant and the delay in notification stemming therefrom is inexcusable as a matter of law (id.). Nor can 101 Park Avenue Associates rely on the notice provided to defendant by GJF as a "similarly situated" insured, since, as noted above, GJF is not an insured under the policy (see American Home Assur. Co. v BFC Constr. Corp., 81 AD3d 545 [2011]).
Catterson, J.P. and Richter, J. concur in a separate memorandum by Richter, J. as follows:

RICHTER, J. (concurring)

I agree that there is no coverage because GJF's status as an additional insured was not "on file" with Sirius, as required by the policy language. However, I do not conclude that the letter from defendant's counsel constitutes a formal judicial admission. During the course of discovery, plaintiffs' counsel sent a letter to defendant's counsel asking whether GJF was an additional insured under Sirius's policy. The letter advised that plaintiffs would seek to depose a Sirius underwriter if Sirius's position was that GJF was not an additional insured. In response, defendant's counsel sent a letter confirming that GJF was an additional insured under the policy.

Several months later, defendant's counsel realized that he had made a mistake and informed plaintiffs' counsel that GJF was not an additional insured. Defendant's counsel expressed his regret over the mistake and offered to submit a Sirius underwriter for deposition. Plaintiffs' counsel subsequently deposed Patrick J. Conklin, chief underwriting officer for Inter-Reco, the underwriting arm for Sirius, about GJF's status as an additional insured under the policy.

"A formal judicial admission is an act of a party done in the course of a judicial proceeding, which dispenses with the production of evidence by conceding, for the purposes of the litigation, the truth of a fact alleged by the adversary" (People v Brown, 98 NY2d 226, 232 n 2 [2002] [citation omitted]). "[A] formal judicial admission takes the place of evidence and is conclusive of the facts admitted in the action in which [it is] made" (id. [internal quotation marks and citation omitted]). An informal judicial admission is a fact "incidentally admitted during the trial or in some other judicial proceeding" (Morgenthow & Latham v Bank of New York Co., 305 AD2d 74, 79 [2003], lv denied 100 NY2d 512 [2003] [internal quotation marks and citation omitted]). "Such an admission is not conclusive . . . in the litigation but is merely evidence of the fact or facts admitted" (People v Brown, 98 NY2d at 232 n 2 [internal quotation marks and citation omitted]).

Examples of formal judicial admissions include (1) statutory admissions, such as an admission of fact made pursuant to CPLR 3123, (2) facts admitted by stipulation, (3) facts formally admitted in open court and (4) facts admitted in pleadings (Prince, Richardson on Evidence, § 8-215 [Farrell 11th ed]; see Penna, Inc. v Ruben, 72 AD3d 523, 523-24 [2010] [statements in pleadings]; Matter of Columbia County Support Collection Unit v Interdonato, 51 AD3d 1167 [2008] [facts formally admitted in open court]). Examples of informal judicial admissions include (1) statements made in a deposition, (2) statements in a bill of particulars and (3) statements in affidavits (Morgenthow & Latham, 305 AD2d at 79).

Defendant's counsel's letter to his adversary, which was sent during the course of discovery, and which was later discovered to be a mistake and corrected, constitutes, at most, an informal judicial admission. If statements made in affidavits and depositions do not qualify as formal judicial admissions, then a statement made in correspondence between counsel, which is unsworn, cannot be considered a formal judicial admission. The letter contains no indicia of formality, was not copied to the court and contains no language suggesting that it was meant to be a stipulation between the parties.

The language in People v Brown (98 NY2d at 232 n 2) relied upon by my colleagues, which is in a footnote, does not change the result here. There is no indication in counsel's letter, nor any testimony in the record, that the letter was written to "dispense[] with the production of evidence by conceding, for the purposes of the litigation, the truth of a fact alleged by the adversary" (id.). Plaintiffs produced no evidence to refute defendant's contention that the statement in the letter was a simple mistake (that was subsequently corrected).

Burdick v Horowitz (56 AD2d 882 [1977]), is distinguishable. In Burdick, which does not even use the term "formal judicial admission," the court found the defendants to be bound by "a stipulation which was made so as to preclude a certain line of questioning at a pretrial deposition" (56 AD2d at 883). Here, in contrast, there was no stipulation. Nor, as noted above, was it shown that the letter was written to preclude further discovery.

Ovalles v. Herrera

Law Office of Arnold Treco, Jr., PLLC, Bronx (Arnold Treco of
counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for respondents.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered December 3, 2010, which, in this action for personal injuries sustained in a motor vehicle accident, granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants established their entitlement to judgment as a matter of law. Defendants submitted, inter alia, the affirmed reports of a neurologist and an orthopedist, who examined plaintiff and concluded that she had normal ranges of motion in her lumbar and cervical spine. To the extent the findings of the experts differed, such differences were not so significant as to affect defendants' entitlement to summary judgment (see Feliz v Fragosa, 85 AD3d 417 [2011]).

In opposition, plaintiff did not raise a triable issue of fact. She failed to present any competent medical evidence contemporaneous to the time of the accident showing limitations in the range of motion in her lumbar and cervical spine (see Rubencamp v Arrow Exterminating Co., Inc., 79 AD3d 509 [2010]). Nor did she present any explanation for the absence of such records. The only objective evidence of limitation of motion is contained in a report of a physician who examined plaintiff several years after the accident. This finding is "too remote to raise an issue of fact as to whether the limitations were caused by the accident" (Lopez v Simpson, 39 AD3d 420, 421 [2007]).

Dismissal of plaintiff's claim under the 90/180-day category of Insurance Law § 5102(d) was also warranted. Defendants submitted plaintiff's testimony that she only missed two or three days of work as a result of the accident (see De La Cruz v Hernandez, 84 AD3d 652 [2011]; Canelo v Genolg Tr., Inc., 82 AD3d 584 [2011]). In opposition, plaintiff failed to raise a triable issue of fact.

We have considered plaintiff's remaining arguments and find them unavailing.
Cairo v. Awan

Salenger, Sack, Kimmel & Bavaro, LLP, Woodbury, N.Y. (Daniel
Justus Solinsky of counsel), and Bragoli & Associates, P.C.,
Melville, N.Y., for respondent (one brief filed).

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Muhammad A. Awan and Charles Lindenbaum appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated February 3, 2011, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed insofar as appealed from, with costs.

The appellants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiff alleged, inter alia, that the cervical region of his spine sustained certain injuries as a result of the subject accident. The appellants established, prima facie, inter alia, that those alleged injuries were not caused by the subject accident (see Pommells v Perez, 4 NY3d 566, 579; Jilani v Palmer, 83 AD3d 786, 787).

In opposition to the appellants' motion the plaintiff submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the cervical region of his spine were caused by the accident (see Jaramillo v Lobo, 32 AD3d 417). Accordingly, the Supreme Court properly denied the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.

Foster v. Gayle

Harold Solomon, Rockville Centre, N.Y. (Bernard G. Chambers of
counsel), for appellant.
Richard T. Lau, Jericho, N.Y. (Gene W. Wiggins of counsel),
for respondents Margaret F. Gajda and
Stanley Gajda.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Marber, J.), entered July 7, 2010, which granted the motion of the defendants Margaret F. Gajda and Stanley Gajda, and the separate motion of the defendant Karen Gayle, for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with one bill of costs payable to the defendants Margaret F. Gajda and Stanley Gajda.

 

The defendants met their respective prima facie burdens 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 plaintiff alleged, inter alia, that as a result of the subject accident, the cervical and lumbosacral regions of her spine, and shoulders, sustained certain injuries. However, the defendants provided competent medical evidence establishing, among other things, that those alleged injuries did not constitute serious injuries within the meaning of Insurance Law § 5102(d) (see Rodriguez v Huerfano, 46 AD3d 794, 795).

In opposition, the plaintiff failed to raise a triable issue of fact (see Jackson v Colvert, 24 AD3d 420, 420-421; Lentini v Melina, 287 AD2d 550). Accordingly, the Supreme Court properly granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.

Karpinos v. Cora

Samuels & Associates, P.C., Rosedale, N.Y. (Violet E. Samuels
of counsel), for appellant.
Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success,
N.Y. [Marshall D. Sweetbaum], of
counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Saitta, J.), dated August 17, 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 affirmed, with costs.

The defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiff alleged that the cervical and lumbosacral regions of his spine, and his right knee, sustained certain injuries as a result of the subject accident, and the defendant submitted competent medical evidence establishing, prima facie, that those alleged injuries did not constitute serious injuries within the meaning of Insurance Law § 5102(d) under the permanent consequential limitation of use or the significant limitation of use categories (see Rodriguez v Huerfano, 46 AD3d 794, 795). Furthermore, while the plaintiff also alleged that he sustained a serious injury under the 90/180-day category of Insurance Law § 5102(d), the defendant submitted evidence establishing, prima facie, that during the 180-day period immediately following the subject accident, the plaintiff did not have an injury or impairment which, for more than 90 days, prevented him from performing substantially all of the acts that constituted his usual and customary daily activities (see Ranford v Tim's Tree & Lawn Serv., Inc., 71 AD3d 973, 974).
In opposition, the plaintiff submitted medical reports that were not in admissible form, and, therefore, were insufficient to raise a triable issue of fact (see Grasso v Angerami, 79 NY2d 813, 814-815; cf. Kearse v New York City Tr. Auth., 16 AD3d 45, 47 n 1). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

Quintana v. Arena Transport, Inc.

Morris Duffy Alonso & Faley, New York, N.Y. (Iryna S.
Krauchanka of counsel), for appellants.
Polizzotto & Polizzotto, LLC, Brooklyn, N.Y. (Miguel A.
Torrellas of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated July 27, 2010, as denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants' evidentiary submissions, including the affirmed report of their examining neurologist, established, prima facie, that none of the injuries the plaintiff allegedly sustained to the cervical and lumbar regions of her spine, and to her head, shoulders, and wrists, constituted a serious injury under the permanent consequential limitation of use or the significant limitation of use categories of Insurance Law § 5102(d) (see Frederique v Krapf, 86 AD3d 533; Lively v Fernandez, 85 AD3d 981, 982; Oginsky v Rasporskaya, 85 AD3d 990; Staff v Yshua, 59 AD3d 614). Further, since the plaintiff did not allege in her bill of particulars that she sustained a medically determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days following the subject accident, the defendants were not required to address this category of serious injury in their motion (see Ali v Mirshah, 41 AD3d 748, 749).

In opposition, the plaintiff failed to raise a triable issue of fact. The report of the plaintiff's treating expert in physical medicine and rehabilitation was unaffirmed and, thus, insufficient to raise a triable issue of fact as to whether any of her alleged injuries constituted a serious injury (see Grasso v Angerami, 79 NY2d 813, 814; Lively v Fernandez, 85 AD3d at 982; D'Orsa v Bryan, 83 AD3d 646, 647; Resek v Morreale, 74 AD3d 1043, 1044). Moreover, while the plaintiff's treating orthopedist concluded in an affirmed report that she had restricted range of motion in her cervical spine, and mildly restricted range of motion in her right wrist, his report failed to set forth the actual ranges of motion achieved by the plaintiff, and failed to compare these findings to the normal range of motion. Thus, the orthopedist's report was insufficient to raise a triable issue of fact as to whether the injuries to the plaintiff's cervical spine and right wrist constituted a serious injury under the permanent consequential limitation of use or the significant limitation of use categories of Insurance Law § 5102(d) (see Johnson v Tranquille, 70 AD3d 645, 646; Berson v Rosada Cab Corp., 62 AD3d 636, 637; Morris v Edmond, 48 AD3d 432, 433). Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.
Rotella v. Mace

Vasti & Vasti, P.C., Pleasant Valley, N.Y. (Thomas F. Vasti III
of counsel), for appellants.
Kaplan, Hanson, McCarthy, Adams, Finder & Fishbein,
Albany, N.Y. (Paul G. Hanson of counsel), for respondents.

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, Dutchess County (Dolan, J.), dated July 27, 2010, as granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Linda Rotella did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendants met their prima facie burden of showing that the plaintiff Linda Rotella (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiffs alleged, inter alia, that as a result of the subject accident, the cervicothoracic region of the injured plaintiff's spine sustained certain injuries, and the defendants provided competent medical evidence establishing, inter alia, that those alleged injuries did not constitute a serious injury within the meaning of Insurance Law § 5102(d) (see Rodriguez v Huerfano, 46 AD3d 794, 795).

In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.

Borja v. Delarosa

Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for appellants.
Paris & Chaikin, PLLC, New York (Jason L. Paris of counsel),
for respondent.

Order, Supreme Court, Bronx County (Diane A. Lebedeff, J.), entered June 15, 2010, which, in this action for personal injuries sustained in a motor vehicle accident, denied defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, to grant the motion to the extent of dismissing plaintiff's 90/180-day claim and any claim relating to his shoulder injury, and otherwise affirmed, without costs.
Plaintiff was injured on September 16, 2006 when driving west on 155th Street in Manhattan. His vehicle was struck on the driver's side by a truck owned by defendant Benycol. Although defendants submitted sufficient evidence to rebut plaintiff's claim of serious injury to his shoulder, plaintiff submitted medical evidence in admissible form raising a triable issue of fact with respect to permanent limitations of motion of his cervical spine. Plaintiff's treating physician,

Dr. Javier Chacon, submitted a sworn statement opining that plaintiff sustained injuries to his cervical spine that were objective and specifically quantifiable and were caused by the motor vehicle accident. Dr. Chacon's findings were consistent with those of radiologist Dr. Steven Brownstein's, whose reading of an MRI revealed anterior and posterior protruded disc herniations at C6-7. Dr. Arden Kaisman, an anesthesiologist, based on a finding of spasm and limited range of motion in the cervical spine, concluded that plaintiff suffers from permanent cervical radiculopathy and myofascial pain syndrome. He administered epidural steroid injections.

On the other hand, defendants' experts, Dr. Kudlip Sachdev, a neurologist, and Dr. Michael J. Katz, an orthopedist, found normal range of motion in the cervical spine. Dr. David L. Milbauer, a radiologist, noted disc bulging in the C6-7 area, but attributed it to degenerative changes. Although Dr. Chacon did not directly address Dr. Milbauer's nonconlusory opinion that the cervical spine injuries were degenerative, he specifically attributed the cause of the injuries to the motor vehicle accident. Thus, his opinion is entitled to equal weight with that of the defense experts (Linton v Nawaz, 62 AD3d 434, 439 [2009], affd 14 NY3d 821 [2010]; Yuen v Arka Memory Cab Corp., 80 AD3d 481, 482 [2011]).

Plaintiff acknowledged that the pain in his shoulder resulting from the accident had resolved, and thus any claim relating to the shoulder is dismissed. Similarly, the record also demonstrates that dismissal of plaintiff's claim under the 90/180-day category of serious injury is warranted. Plaintiff's bill of particulars and affidavit indicate that he missed only 40 days of work (see Hospedales v "John Doe," 79 AD3d 536, 837 [2010]). Moreover, plaintiff's reduced work schedule was insufficient to raise a triable issue of fact on this claim (see Perez v Corr, 84 AD3d 646, 647 [2011]).

Winters v. Cruz

Mead, Hecht, Conklin & Gallagher, LLP, White Plains
(Elizabeth M. Hecht of counsel), for appellants.
Morton J. Sealove, New York, for respondent.

Order, Supreme Court, Bronx County (Lizbeth González, J.), entered May 27, 2011, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the complaint in its entirety, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

Defendants established their entitlement to judgment as a matter of law by showing that the injury to plaintiff's right knee was not serious within the meaning of Insurance Law § 5102(d). Defendants submitted, inter alia, affirmed reports from a radiologist and an orthopedist, showing a healed right knee contusion and a preexisting condition of degenerative arthritis, which diagnosis was previously documented in the medical records of plaintiff's orthopedic surgeon (see Spencer v Golden Eagle, Inc., 82 AD3d 589, 590-591 [2011]). Plaintiff had surgery on his left knee weeks before the accident, and received a steroid injection to the right knee at the same time.

In opposition, plaintiff raised a triable issue of fact with his expert's affirmation stating that the trauma of the automobile accident, and not the degeneration, caused his knee injury (see Torain v Bah, 78 AD3d 588 [2010]). However, he failed to set forth any contemporaneous or recent limitations sustained as a result of that trauma (see generally Thompson v Abbassi, 15 AD3d 95, 97-98 [2005]). The limitations the expert did note relative to plaintiff's knee were not compared with the standards for normal ranges of motion, and thus, his report was deficient (see Soho v Konate, 85 AD3d 522, 523 [2011]). Moreover, during a post-surgery examination, the expert found improved range of motion, and no evidence is submitted of current quantitative or qualitative restriction.

The record further demonstrates that there are no triable issues with respect to plaintiff's 90/180-day claim. The orthopedist's statement that plaintiff was "totally disabled" was too general to raise an issue of fact (see Morris v Ilya Cab Corp., 61 AD3d 434 [2009]). Furthermore, plaintiff's statement that he missed approximately four months of work was not supported by any documentation or affidavit from his employer (see Dembele v Cambisaca, 59 AD3d 352 [2009]).

Bangar v. Man Sing Wong

Parker Waichman Alonso, LLP, Port Washington, N.Y. (Jay L. T.
Breakstone of counsel), for appellants.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York,
N.Y. (Stacy R. Seldin of counsel), for
respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (F. Rivera, J.), dated April 9, 2010, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff Ken Bangar 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 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 NYd 955, 956-657). In their bill of particulars, the plaintiffs alleged that the injured plaintiff had sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary activities for not less than 90 days during the 180 days immediately following the subject accident. However, the defendant failed to show, prima facie, that the injured plaintiff did not sustain such an injury. In support of his motion, the defendant submitted the injured plaintiff's deposition testimony, which indicated that the injured plaintiff missed work for the first 110 days after the subject accident (see Takaroff v A.M. USA, Inc., 63 AD3d 1142, 1143; Shaw v Jalloh, 57 AD3d 647, 648; Ali v Rivera, 52 AD3d 445, 446; DeVille v Barry, 41 AD3d 763). Moreover, the defendant's orthopedist, who examined the injured plaintiff more than 14 months after the accident, did not relate any of his findings to the period of time immediately following the accident (see Cabey v Leon, 84 AD3d 1295, 1296; Mugno v Juran, 81 AD3d 908, 909; Lewis v John, 81 AD3d 904, 905; Takaroff v A.M. USA, Inc., 63 AD3d at 1143; Shaw v Jalloh, 57 AD3d at 648; DeVille v Barry, 41 AD3d at 763-764). Since the defendant did not sustain his prima facie burden on his motion, it is unnecessary to determine whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see Mugno v Juran, 81 AD2d at 909; Galofaro v Wylie, 78 AD3d 652, 653). Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.
Cohn v. Khan

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Thomas Torto [Jason Levine], of counsel), for appellants.
Roth & Roth, LLP, New York, N.Y. (David A. Roth and Audra
R. Roth of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Schmidt, J.), entered July 29, 2010, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and granted that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiff commenced this action to recover damages for personal injuries allegedly sustained when she was struck by a taxicab while she was walking on Avenue A in Manhattan. At the time of the accident, the taxicab allegedly was owned by the defendant Nancy Transit, Inc., and operated by the defendant Rahim Khan. The defendants moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The plaintiff cross-moved, among other things, for summary judgment on the issue of liability. The Supreme Court denied the defendants' motion and granted that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability. We modify.

The defendants' motion papers failed to adequately address the plaintiff's claim, clearly set forth in her bill of particulars, that she sustained a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Reynolds v Wai Sang Leung, 78 AD3d 919; Udochi v H & S Car Rental Inc., 76 AD3d 1011; Strilcic v Paroly, 75 AD3d 542; Bright v Moussa, 72 AD3d 859; Encarnacion v Smith, 70 AD3d 628; Negassi v Royle, 65 AD3d 1311; Alvarez v Dematas, 65 AD3d 598; Smith v Quicci, 62 AD3d 858; Alexandre v Dweck, 44 AD3d 597; Sayers v Hot, 23 AD3d 453). Accordingly, the Supreme Court properly denied the defendants' motion because they failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). Since the defendants failed to meet their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition to the defendants' motion were sufficient to raise a triable issue of fact (see Bright v Moussa, 72 AD3d at 859; Menezes v Khan, 67 AD3d 654, 654; Alvarez v Dematas, 65 AD3d at 600; Coscia v 938 Trading Corp., 283 AD2d 538).

However, the Supreme Court erred in granting that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability. In support of her cross motion, the plaintiff submitted evidence which indicated that she left the sidewalk and was struck by the taxicab while she was walking along the edge of the roadway with her back to oncoming traffic (cf. Vehicle and Traffic Law § 1156[a]). Since the plaintiff's submissions failed to establish, prima facie, that she was free from comparative negligence or that the defendant driver's allegedly negligent conduct was the sole proximate cause of the accident, the Supreme Court should have denied that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability (see Mackenzie v City of New York, 81 AD3d 699, 700; Singh v Doo Jae Lee, 76 AD3d 555; Roman v A1 Limousine, Inc., 76 AD3d 552; Yuen Lum v Wallace, 70 AD3d 1013; see also Thoma v Ronai, 82 NY2d 736).
Grant v. New York City Transit Authority

Sacco & Fillas, LLP, Whitestone, N.Y. (Lamont K. Rodgers of
counsel), for appellant.
Wallace D. Gossett, Brooklyn, N.Y. (Jane Shuffer of counsel),
for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Sherman, J.), dated September 13, 2010, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants demonstrated their prima facie entitlement to judgment as a matter of law by submitting competent medical evidence which established that the injuries sustained by the plaintiff did not constitute a serious injury within the meaning of Insurance Law § 5102(d) (see Klvelowitz v Calia, 43 AD3d 1111). In opposition, the plaintiff failed to raise a triable issue of fact either through her medical submissions or via her deposition testimony. The plaintiff testified at her deposition that while her injuries from the accident prevented her from performing some normal activities, they did not prevent her from performing substantially all of her daily activities for not less than 90 days out the first 180 days immediately following the accident (see Pacheco v Conners, 69 AD3d 818; Farozes v Kamran, 22 AD3d 458; see also Dembele v Cambisaca, 59 AD3d 352).
Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

Henig v. Avana

John C. Buratti & Associates, Hicksville, N.Y. (Alan M. Shushan
of counsel), for appellants.
Arthur Levine, Garden City, N.Y., for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered April 13, 2011, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiff alleged, inter alia, that as a result of the subject accident, the lumbosacral region of her spine sustained certain injuries. The defendants submitted competent medical evidence establishing, prima facie, among other things, that the alleged injuries to that region of her spine were not caused by the subject accident (see Pommells v Perez, 4 NY3d 566, 579; Gentilella v Board of Educ. of Wantagh Union Free School Dist., 60 AD3d 629, 629-630).
However, in opposition, the plaintiff submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the lumbosacral region of her spine were caused by the subject accident (see Sforza v Big Guy Leasing Corp., 51 AD3d 659, 660-661). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.
Jones v. Hampton

Law Offices of Joel L. Getreu, P.C., New York, N.Y. (Willard G.
LaFauci of counsel), for appellant.
Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock
of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Strauss, J.), dated November 16, 2010, which granted the defendant's renewed motion for summary judgment dismissing the complaint on the ground that she 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 renewed 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 under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendant submitted an affirmed medical report from an examining orthopedic surgeon, who noted the existence of a significant limitation in lumbar flexion (see Karvay v Gueli, 77 AD3d 625, 626). Although the examining physician nonetheless concluded that the lumbosacral region of the plaintiff's spine was normal, he failed to adequately explain that conclusion in light of his finding of a significant limitation (cf. Gonzales v Fiallo, 47 AD3d 760).
Additionally, although the defendant demonstrated, prima facie, that the plaintiff's alleged injuries were not caused by the accident, in opposition, the plaintiff raised a triable issue of fact in that regard (see Jaramillo v Lobo, 32 AD3d 417, 418).
Accordingly, the defendant's renewed motion for summary judgment dismissing the complaint should have been denied.

Knight v. Zena & Sol Taxi, Inc.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellants.
Martin R. Munitz, P.C., New York, N.Y. (Jason M. Kaufer of
counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (F. Rivera, J.), dated June 3, 2011, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff Julia Knight did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
The defendants met their prima facie burden of showing that the plaintiff Julia Knight (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiffs alleged, inter alia, that as a result of the subject accident, the cervical region of the injured plaintiff's spine sustained certain injuries. The defendants submitted competent medical evidence establishing, prima facie, among other things, that the alleged injuries to that region of her spine did not constitute a serious injury within the meaning of Insurance Law § 5102(d) (see Lively v Fernandez, 85 AD3d 981, 981-982), and, in any event, were not caused by the subject accident (see Jilani v Palmer, 83 AD3d 786, 787).
However, in opposition, the plaintiffs submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the cervical region of the injured plaintiff's spine constituted a serious injury under the significant limitation of use category of Insurance Law § 5102(d) (see Mahmood v Vicks, 81 AD3d 606, 607). The plaintiffs also submitted competent medical evidence raising a triable issue of fact as to whether those alleged injuries were caused by the subject accident (see Jaramillo v Lobo, 32 AD3d 417, 418). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.

Motor Parkway Enterprises, Inc.v. Loyd Keith Friedlander Partners, Ltd.

Kenneth Geller, P.C., Inwood, N.Y., for appellant.
Milber, Makris, Plousadis & Seiden, LLP, Woodbury, N.Y.
(Lorin A. Donnelly and Heather A.
Morante of counsel), for respondents.

DECISION & ORDER
In an action to recover damages for negligent procurement of insurance coverage, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Emerson, J.), dated April 16, 2010, which granted that branch of the defendants' motion which was, in effect, pursuant to CPLR 3211(a)(1) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

Contrary to the plaintiff's contention, the Supreme Court properly granted that branch of the defendants' motion which was, in effect, pursuant to CPLR 3211(a)(1) to dismiss the complaint. The documentary evidence submitted by the defendants, including the application for insurance signed by the plaintiff's president and the resulting policy of insurance furnished by the defendants to the plaintiff, conclusively disposed (see Leon v Martinez, 84 NY2d 83, 88; Fontanetta v John Doe I, 73 AD3d 78, 83) of the plaintiff's claims that the defendants procured insurance coverage in an amount other than that requested by the plaintiff (see Sung v Kyung Ip Hong, 254 AD2d 271, 272). Moreover, the plaintiff is "conclusively presumed to have read and assented to the terms of the . . . policy" (Loevner v Sullivan & Strauss Agency, Inc., 35 AD3d 392, 394; see Portnoy v Allstate Indem. Co., 82 AD3d 1196, 1198; Maple House, Inc. v Alfred F. Cypes & Co., Inc., 80 AD3d 672; Stilianudakis v Tower Ins. Co. of N.Y., 68 AD3d 973, 974; Catalanotto v Commercial Mut. Ins. Co., 285 AD2d 788, 790-791; Rotanelli v Madden, 172 AD2d 815), and therefore cannot claim that it believed that it possessed greater coverage than that set forth in the policy.

The plaintiff's remaining contentions are either improperly raised for the first time on appeal or without merit.

Tower Ins. Co. of New York v. New Wok Hing Trading, Inc.

Caesar & Napoli, New York, N.Y. (James C. Napoli and Milena
Hanukov of counsel), for appellants.
Mound Cotton Wollan & Greengrass, New York, N.Y.
(Vanessa M. Bakert and Francis A. Garufi of
counsel), for respondent.

DECISION & ORDER
In an action for a judgment declaring that the plaintiff is not obligated to defend or indemnify the defendants New Wok Trading, Inc., and Qi Chao Lin in an underlying action entitled Jiang v Lin, pending in the Supreme Court, Queens County, under Index No. 23284/07, the defendants Zeng-Fei Jiang and Xiu-Mei Dong appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Butler, J.), entered July 6, 2010, as granted that branch of the plaintiff's motion which was for summary judgment on the complaint declaring that it is not obligated to defend or indemnify the defendants Qi Chao Lin and New Wok Hing Trading, Inc., in the underlying action.

ORDERED that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the plaintiff is not obligated to defend and indemnify the defendants Qi Chao Lin and New Wok Hing Trading, Inc., in an underlying action entitled Jiang v Lin, pending in the Supreme Court, Queens County, under Index No. 23284/07.

On June 6, 2007, the defendant Zeng-Fei Jiang (hereinafter Jiang) allegedly was injured when his hand was crushed while he was delivering and unloading refrigerated goods at a store owned and operated by the defendant New Wok Hing Trading, Inc. (hereinafter New Wok), and its sole officer and principal, the defendant Qi Chao Lin (hereinafter Lin). Both Jiang and Lin were present when the accident occurred. On September 12, 2007, Jiang and his wife, the defendant Xiu-Mei Dong (hereinafter Dong), suing derivatively, brought an action, inter alia, to recover damages for personal injuries against Lin and New Wok.

At the time of the accident, New Wok and Lin had a general commercial liability policy with the plaintiff, Tower Insurance Company of New York (hereinafter Tower). Although the policy required them to notify Tower of an accident or occurrence, or a resulting lawsuit, as soon as practicable, New Wok and Lin did not notify Tower until November 15, 2007, more than five months after the accident and over two months after commencement of the underlying action. Tower [*2]sent a letter dated December 3, 2007, to New Wok and Lin disclaiming coverage on the ground that notice was not timely, and thereafter commenced this action for a judgment declaring that it was not obligated to defend or indemnify them. Tower moved, inter alia, for summary judgment on the complaint declaring that it was not obligated to defend or indemnify them. Jiang and Dong opposed Tower's motion arguing, inter alia, that they made reasonably diligent efforts to ascertain the identity of the insurer and that they subsequently provided Tower with timely notice. In the order appealed from, the Supreme Court, inter alia, granted that branch of Tower's motion which was for summary judgment on the complaint. We affirm the order insofar as appealed from.

Insurance Law § 3420(a) provides the injured party with an independent right to provide the insurer with notice of the accident in order to satisfy the notice requirement of the policy (see Seneca Ins. Co. v W.S. Distrib., Inc., 40 AD3d 1068, 1069-1070; Steinberg v Hermitage Ins. Co., 26 AD3d 426, 428). "(T)he injured party has the burden of proving that its attorney acted diligently in attempting to ascertain the identity of the insurer, and, thereafter, expeditiously notified the insurer" (Seneca Ins. Co. v W.S. Distrib., Inc., 40 AD3d at 1070; see Steinberg v Hermitage Ins. Co., 26 AD3d at 428).

Here, Tower established its prima facie entitlement to judgment as a matter of law by demonstrating that Jiang and Dong failed to provide any explanation for their more than five-month delay in ascertaining Tower's identity and notifying Tower of the accident (see Seneca Ins. Co. v W.S. Distrib., Inc., 40 AD3d at 1070; Steinberg v Hermitage Ins. Co., 26 AD3d at 427-428; Trepel v Asian Pac. Express Corp., 16 AD3d 405, 406). In response, Jiang and Dong failed to raise a triable issue of fact as to whether they diligently attempted to identify Tower (see Seneca Ins. Co. v W.S. Distrib., Inc., 40 AD3d at 1070; Steinberg v Hermitage Ins. Co., 26 AD3d at 427-428; Trepel v Asian Pac. Express Corp., 16 AD3d at 406). Accordingly, the Supreme Court properly granted that branch of Tower's motion which was for summary judgment on the complaint.

The remaining contentions by Jiang and Dong are without merit.

We note that since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that Tower is not obligated to defend and indemnify New Wok and Lin in the underlying action entitled Jiang v Lin, pending in the Supreme Court, Queens County, under Index No. 23284/07 (see Lanza v Wagner, 11 NY2d 317, appeal dismissed 371 US 74, cert denied 371 US 901).

1515 Broadway Fee Owner, LLC v. Seneca Ins. Co. Inc.

Tese & Milner, New York (Michael M. Milner of counsel), for
appellant-respondent.
Wechsler & Cohen, LLP, New York (Debora A. Pitman of
counsel), for respondents-appellants.
Order, Supreme Court, New York County (Debra A. James, J.), entered March 1, 2011, which denied defendant's motion for summary judgment, and granted in part plaintiffs' cross motion for partial summary judgment and declared that defendant was obligated to defend plaintiffs in the underlying personal injury action, unanimously modified, on the law, to further declare that defendant's insurance policy afforded primary coverage to plaintiffs, and otherwise affirmed, without costs.

At issue is whether the stairwell area where the underlying accident occurred is covered by the additional insured clause in the policy procured by the underlying plaintiff's employer from Seneca. The clause extends coverage to plaintiffs herein, the employer's landlord and the managing agent of the building. Coverage exists because the underlying claim arose out of the "maintenance or use" of the leased premises, within the meaning of the additional insured clause.

The accident occurred in the course of an activity necessarily incidental to the operation of the space leased by the employer. Furthermore, the accident happened in a part of the premises that was used for access in and out of the leased space when the freight elevator was not in service (see ZKZ Assoc. v CNA Ins. Co., 89 NY2d 990 [1997]; New York Convention Ctr. Operating Corp. v Cerullo World Evangelism, 269 AD2d 275, 276 [2000]). This result is consistent with the lease, which required the employer to procure insurance against any liabilities "on or about the demised premises or any appurtenances thereto" (Jenel Mgt. Corp. v Pacific Ins. Co., 55 AD3d 313, 313 [2008]). Accordingly, a duty to defend has been triggered and we need not address plaintiffs' argument that the disclaimer was inadequate.

Where all applicable policies have been made available for review (cf. Liberty Mut. Ins. Co. v Trystate Mech., Inc., 15 AD3d 236, 237 [2005]), priority of coverage can be determined as a matter of law (see Sport Rock Intl., Inc. v American Cas. Co. of Reading, Pa., 65 AD3d 12, 21 [2009]). The Seneca policy, providing additional insured coverage, is primary in the underlying action (see Tishman Constr. Corp. of N.Y. v American Mfrs. Mut. Ins. Co., 303 AD2d 323, 324 [2003]; see also Harleysville Ins. Co. v Travelers Ins. Co., 38 AD3d 1364, 1365 [2007], lv denied 9 NY3d 811 [2007]; Pav-Lak Indus., Inc. v Arch Ins. Co., 56 AD3d 287, 288 [2008]).

Because plaintiffs failed to address why an immediate hearing was required to determine past defense costs pursuant to CPLR 3212(c), the motion court did not improvidently exercise its discretion in declining to grant such a request.
Decided and Entered: December 1, 2011

THOMAS v CITY OF ONEONTA

Calendar Date: October 11, 2011
Before: Mercure, J.P., Spain, Lahtinen, Malone Jr. and Egan Jr., JJ.

Law Firm of Frank Miller, East Syracuse (Bryan N.
Georgiady of counsel), for appellant.
Aswad & Ingraham, Binghamton (Richard N. Aswad
of counsel), for respondent.

MEMORANDUM AND ORDER

Egan Jr., J.
Appeal from an order of the Supreme Court (Coccoma, J.), entered March 4, 2011 in Otsego County, which partially denied defendant's motion to dismiss the complaint.

On September 29, 2009 plaintiff, a police officer employed by defendant, approached his supervisor and disclosed various acts of on-duty misconduct allegedly committed by certain of his fellow officers. Plaintiff subsequently repeated these allegations to the Chief of Police and an investigation ensued, as a result of which three officers were placed on suspension. Approximately one week after reporting the alleged misconduct, plaintiff was advised that — effective immediately — he would be assigned to the 4:00 P.M. to midnight shift (instead of his usual day shift), his days off would switch from weekends to midweek and he would be assigned certain additional duties previously performed by one of the suspended officers. Plaintiff met with his supervisor again on October 29, 2009, at which time he complained of harassment by the suspended officers and contended that he was being punished for reporting the alleged misconduct. Thereafter, on November 2, 2009, plaintiff tendered his resignation effective November 15, 2009.[FN1]  

On February 5, 2010, plaintiff served a notice of claim upon defendant pursuant to General Municipal Law § 50-e and, on November 3, 2010, commenced this action pursuant to Civil Service Law § 75-b alleging, among other things, that he was the victim of retaliatory personnel actions. Defendant answered and moved to dismiss asserting, insofar as is relevant to this appeal, that the underlying claims were time-barred. Supreme Court dismissed as time-barred that portion of plaintiff's claim premised upon the Common Council's failure to act upon his request for reinstatement, but otherwise denied defendant's motion. This appeal by defendant ensued.

In order to maintain this action, plaintiff was required to serve a notice of claim upon defendant within 90 days after his underlying claims arose (see General Municipal Law § 50-e [1] [a]; Donas v City of New York, 62 AD3d 504, 505 [2009]; see also Rowe v NYCPD, 85 AD3d 1001, 1002 [2011]) and, further, commence this action "within one year after the alleged retaliatory personnel action[s]" took place (Labor Law § 740 [4] [a]; see Civil Service Law § 75-b [3] [c]; Donas v City of New York, 62 AD3d at 505). Although the alterations to plaintiff's work schedule and the assignment of additional duties became effective on or about October 6, 2009,[FN2] plaintiff did not serve his notice of claim until February 5, 2010 — well beyond the 90-day period — and did not commence this action until November 3, 2010 — outside the one-year statute of limitations. Plaintiff's constructive discharge claim is equally untimely, as such claim arose when he tendered his resignation on November 2, 2009 — the date upon which plaintiff "severed his relationship with his former employer" (Kowalski v Department of Corrections of City of N.Y., 66 AD2d 814, 815 [1978]) — not the date upon which he deemed his resignation te be effective (see Clark v State of New York, 302 AD2d 942, 944 [2003]; see also Matter of Amorosi v South Colonie Ind. Cent. School Dist., 9 NY3d 367, 373 [2007]; cf. Matter of Lewis v State Univ. of N.Y. Downstate Med. Ctr., 35 AD3d 862, 863 [2006]). Accordingly, as plaintiff neither served the required notice of claim in a timely fashion nor commenced this action within the applicable statute of limitations, defendant's motion to dismiss should have been granted in its entirety.

Contrary to plaintiff's assertion, the continuing violation doctrine does not operate to toll either of the foregoing limitations periods. As prior decisions of this Court make clear, the doctrine "may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct" (Selkirk v State of New York, 249 AD2d 818, 819 [1998]; see Rowe v NYCPD, 85 AD3d at 1002; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687, 688 [2000]; compare Dobson v Loos, 277 AD2d 1013 [2000]). Here, all of the acts alleged by plaintiff — the change in shifts/days off, the assignment of additional duties and the constructive discharge — constitute single and distinct events (cf. Matter of Ballard v HSBC Bank USA, 42 AD3d 938, 939 [2007]; see generally National R.R. Passenger Corp. v Morgan, 536 US 101, 114 [2002]). Thus, while the effects of the allegedly unlawful acts may have been ongoing, such acts — for purposes of the statutory periods — were deemed complete as of the respective dates upon which they occurred (see National R.R. Passenger Corp. v Morgan, 536 US at 110)[FN3] . In light of this conclusion, we need not address the remaining arguments raised by defendant.

Mercure, J.P., Spain, Lahtinen and Malone Jr., JJ., concur.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as partially denied defendant's motion; motion granted in its entirety and complaint dismissed; and, as so modified, affirmed.
Footnotes

Footnote 1: Although plaintiff subsequently reconsidered, he apparently was advised that defendant's Common Council would need to approve his reinstatement. The Common Council allegedly declined to consider plaintiff's request and, as such, he was not reinstated.

Footnote 2: Plaintiff does not allege a specific date as to these actions, stating only that the changes to his work schedule and duties occurred approximately one week after his September 29, 2009 meeting with his supervisor.

Footnote 3: To the extent that plaintiff argues that he was subject to ongoing harassment by the suspended officers up to and including the effective date of his resignation (November 15, 2009), which defendant purportedly failed to curtail or otherwise address, any claim for defendant's alleged inaction in this regard accrued on November 2, 2009 when plaintiff tendered his resignation and terminated the employment relationship.

Salvatore v Board of Education of Mineola Union Free School District

Shaw, Perelson, May & Lambert, LLP, Poughkeepsie, N.Y. (Mark
C. Rushfield of counsel), for appellant.
Hamburger, Maxson, Yaffe, Knauer & McNally, LLP,
Melville, N.Y. (Richard Hamburger and
William P. Caffrey, Jr., of counsel), for
respondent.

DECISION & ORDER

In an action to recover damages for breach of fiduciary duty, the defendant appeals from an order of the Supreme Court, Nassau County (Woodard, J.), dated December 22, 2010, which denied its motion pursuant to CPLR 3211(a)(1), (4), (5), and (7) to dismiss the complaint based on documentary evidence, pendency of another action, collateral estoppel, res judicata, law of the case, and failure to state a cause of action

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the defendant.

The Supreme Court properly denied those branches of the defendant's motion which were pursuant to CPLR 3211(a)(1), (4), and (5) to dismiss the complaint based on documentary evidence, pendency of another action, res judicata, and collateral estoppel, since the plaintiff's current claim was not, and could not properly have been, before the court that determined the CPLR article 78 proceeding in question (see CPLR 3211[a][1], [4], [5], [7]; 7806; Matter of Hunter, 4 NY3d 260, 269; People v Evans, 94 NY2d 499, 502; Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349-350; People v Manino, 306 AD2d 541, 542). Likewise, the doctrine of law of the case was inapplicable (see People v Evans, 94 NY2d at 502).

Nevertheless, the Supreme Court erred in denying that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. Even affording the complaint a liberal construction, accepting all facts alleged in the complaint to be true, and according the plaintiff the benefit of every possible inference, the facts alleged do not fit within any cognizable legal theory (see EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19; Leon v Martinez, 84 NY2d 83, 87; East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 66 AD3d 122, 125, affd 16 NY3d 775; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704; Smith v Meridian Tech., Inc., 52 AD3d 685, 686). We reject the plaintiff's contention that, under the circumstances alleged, the defendant had a fiduciary duty to her arising from the alleged scope of an insurance policy it obtained (cf. EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d at 19).

Reilly v Garden City Union Free School District

Godosky & Gentile, P.C., New York, N.Y. (Robert E. Godosky,
Brian J. Isaac, and Kenneth J. Gorman of counsel), for appellants.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis &
Fishlinger, Uniondale, N.Y. (Kathleen D.
Foley of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for intentional infliction of emotional distress, the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Nassau County (Feinman, J.), entered February 11, 2010, as, upon an order of the same court entered December 2, 2009, granting the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint, is in favor the defendant and against them dismissing so much of the complaint as alleged intentional infliction of emotional distress.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

Contrary to the plaintiffs' contention, the defendant timely moved to dismiss the complaint, inter alia, on the ground that the action was time-barred (see CPLR 3211[e]; Matter of Abramov v Board of Assessors, Town of Hurley, 257 AD2d 958, 960; cf. Daugherty v City of Rye, 63 NY2d 989, 991-992; Lipman v Vebeliunas, 39 AD3d 488, 490; Fade v Pugliani/Fade, 8 AD3d 612, 614).

The Supreme Court erred in determining that the notices of claim filed by the plaintiffs were untimely, and that the action was time-barred (see General Municipal Law § 50-e[1][a]; § 50-i[1]). The plaintiffs' cause of action to recover damages for intentional infliction of emotional distress accrued "when all of the elements of the tort" could "be truthfully alleged in a complaint" (Snyder v Town Insulation, 81 NY2d 429, 432; see Kronos, Inc. v AVX Corp., 81 NY2d 90, 94; Barrell v Glen Oaks Vil. Owners, Inc., 29 AD3d 612, 613). One of the elements of the tort of intentional infliction of emotional distress is that the plaintiffs must suffer severe emotional distress (see Howell v New York Post Co., 81 NY2d 115, 121). In the case at bar, the plaintiffs could not have suffered severe emotional distress until the date of discovery of the written material which is the basis for their claim, on June 26, 2008. Thus, all of the elements of the tort of intentional infliction of emotional distress could not have been truthfully alleged in the complaint until that date. Accordingly, the notices of claim were timely filed and the action was not time-barred (see Dixon v City of New York, 76 AD3d 1043, 1044; Schultes v Kane, 50 AD3d 1277; Long v Sowande, 27 AD3d 247).

Nevertheless, the Supreme Court correctly determined that the defendant was entitled to dismissal of so much of the complaint as alleged intentional infliction of emotional distress on the ground that the plaintiffs failed to state a cause of action. Even accepting the facts alleged in the complaint as true, according the plaintiffs the benefit of every possible inference, and according to the complaint a liberal construction (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v Martinez, 84 NY2d 83, 87-88; Elisa Dreier Reporting Corp. v Global NAPs Networks, Inc., 84 AD3d 122; Holster v Cohen, 80 AD3d 565, 566; Poliah v Westchester County Country Club, Inc., 14 AD3d 601), the defendant's conduct, as alleged by the plaintiffs, did not constitute extreme and outrageous conduct (see Howell v New York Post Co., 81 NY2d at 121; Murphy v American Home Prods. Corp., 58 NY2d 293, 303; Stella v County of Nassau, 71 AD3d 573, 574; Seltzer v Beyer, 272 AD2d 263, 264-265; Shannon v MTA Metro-N. R.R., 269 AD2d 218, 219; Roach v Stern, 252 AD2d 488; LaDuke v Lyons, 250 AD2d 969, 972-973; Rubinstein v New York Post Corp., 128 Misc 2d 1; Restatement [Second] of Torts, § 46[1]; cf. Cavallaro v Pozzi, 28 AD3d 1075, 1078; 164 Mulberry St. Corp. v Columbia Univ., 4 AD3d 49; Esposito-Hilder v SFX Broadcasting, 236 AD2d 186, 187-188).

The parties' remaining contentions either need not be reached in light of our determination or are without merit.

Milosevic v. O'Donnell

Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac
of counsel), for appellant.
Kent, Beatty & Gordon, LLP, New York (Joshua B. Katz of
counsel), for respondents.

Order, Supreme Court, New York County (Carol Edmead, J.), entered June 21, 2010, which, in an action to recover for personal injuries sustained by plaintiff when he was struck by defendant coworker at an office party held at premises owned by defendant Obivia, LLC, granted defendant employer Joost US Inc.'s motion to dismiss the fourth and fifth causes of action against it for failure to state a claim, unanimously affirmed, without costs.

The motion court properly dismissed the fourth and fifth causes of action as against Joost, alleging negligence and "intentional and/or wanton conduct" respectively. The causes of action fail to state a claim under the theory of respondeat superior. Pursuant to that doctrine, an employer will not be vicariously liable for its employee's alleged assault "where the assault was not within the scope of the employee's duties, and there is no evidence that the assault was condoned, instigated or authorized by the employer" (Yeboah v Snapple, Inc., 286 AD2d 204, 204-205 [2001]). Here, there is no allegation or indication that plaintiff's coworker acted within the scope of his employment when he allegedly attacked plaintiff or that the alleged assault was precipitated by a work-related issue. Indeed, the complaint alleged, among other things, that the coworker "lost control of his senses" and attacked plaintiff "for no apparent reason." Moreover, there is no allegation or indication that Joost condoned, instigated or authorized the alleged assault. That the coworker was the chief financial officer (CFO) of Joost is of no moment (see Velasquez-Spillers v Infinity Broadcasting Corp., 51 AD3d 427, 428 [2008]).

The causes of action also fail to state a claim based on a theory of common-law negligence in sponsoring an event. Even viewing the facts alleged in the complaint in the light most favorable to plaintiff, at best the complaint alleges that a "culture" of alcohol use at off-premises, after-hours company events, contributed to the company CFO becoming intoxicated at the party. There are no allegations or indication that Joost controlled the premises such that it could be held responsible for injuries caused by the intoxicated CFO (see D'Amico v Christie, 71 NY2d 76, 85 [1987]). Nor are there any allegations or indication that Joost was aware of the CFO's violent propensities when intoxicated or of the possibility of an assault (see generally D'Amico, 71 NY2d at 85; Yeboah, 286 AD2d at 205). Dismissal of the claims cannot be avoided by speculation as to what discovery might reveal (see Silverstein v Westminster House Owners, Inc., 50 AD3d 257, 258 [2008]).

In view of the foregoing, we need not determine whether plaintiff's claims are barred by the Workers' Compensation Law.

IMP Plumbing and Heating Corp. v. 317 East 34th Street, LLC.

Holland & Knight LLP, New York (Deborah C. Roth of
counsel), for appellant.
Sherwood Allen Salvan, New York, for respondent.

Appeal from order, Supreme Court, New York County (Joan M. Kenney, J.), entered September 21, 2010, which granted plaintiff's motion for summary judgment on its first cause of action against defendant NYU Hospital Centers for an unpaid lien and for dismissal of NYU's cross claims against defendant general contractor, deemed appeal from judgment, same court and Justice, entered October 7, 2010 (CPLR 5520[c]), and so considered, said judgment unanimously reversed, on the law, without costs, the judgment vacated, and plaintiff's motion denied.

Plaintiff plumbing subcontractor failed to establish its entitlement to judgment as a matter of law. Plaintiff's rights under the Lien Law are wholly derivative of the general contractor's right to payment, as a subcontractor's lien can only be satisfied out of funds "due and owing from the owner to the general contractor" (Timothy Coffee Nursery/Landscape v Gatz, 304 AD2d 652, 654 [2003] [internal quotation marks and citations omitted]). Plaintiff bore the initial burden of showing that funds were, in fact, due and owing to the general contractor (see Penava Mech. Corp. v Afgo Mech. Servs. Inc., 71 AD3d 493, 495-496 [2010]). Although plaintiff's moving papers calculated the balance owed to the general contractor under the prime contract had it fully performed its contractual duties, it did not address the merits of NYU's position that the general contractor breached the contract.

Even assuming that plaintiff met its prima facie burden, NYU's opposition raised triable issues as to whether the general contractor was owed the unpaid balance of the contract price. The affidavit of NYU's Vice President for Facilities and the exhibits proffered in opposition directly challenged the adequacy of the general contractor's performance.

Dismissal of NYU's cross claims against the general contractor was also not warranted. NYU correctly asserts that, as in third-party actions, CPLR 3215(c)'s mandate that an action is deemed abandoned unless "proceedings" towards a default are taken within one-year of the default, does not apply to indemnification claims until liability is established in the main action (see Multari v Glalin Arms Corp., 28 AD2d 122, 124 [1967], appeal dismissed 23 NY2d 740 [1968]). Indeed, the motion court recognized such principle, but applied it only to the first cross claim. To the extent the second cross claim is one for contribution, the same principle applies, as the claim is asserted in the verified answer as specifically contingent upon a finding of liability against NYU in the main action.

Furthermore, with respect to all three cross claims, the standard employed by the motion court — one year from service of the verified answer — is not required by CPLR 3215(c), which mandates the one-year period as accruing from the default in answering the claim. Here, the moving papers do not indicate the  date of the general contractor's alleged default, and only provide the date NYU's pleading containing the cross claims was served.

In re The Travelers Indemnity Company v. Armstead

Martin , Fallon & Mullé, Huntington (Richard C. Mullé of counsel), for appellant.
Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered September 15, 2010, which granted petitioner's motion for a permanent stay of uninsured motorist arbitration, unanimously reversed, on the law, without costs, the motion denied, petitioner directed to join State Farm as an additional respondent and serve it with a supplemental petition and notice of petition, and the matter remanded for a hearing on the issue of State Farm's cancellation of its policy, and stayed pending the hearing. Appeal from order, same court and Justice, entered January 18, 2011, which granted State Farm's motion to reargue and, upon reargument, adhered to the initial determination, unanimously dismissed, without costs, as academic.

Petitioner concedes that the court lacked jurisdiction over State Farm (see Matter of American Tr. Ins. Co. [Carillo], 307 AD2d 220 [2003]; Matter of Allstate Ins. Co. v Perez, 157 AD2d 521 [1990]). Accordingly, the court improperly considered the merits of the petition.

Bonilla v. Abdullah

Marjorie E. Bornes, New York, for Mohammed Abdullah and
Raymond Solomon, appellants.
Cheven, Keely & Hatzis, New York (William B. Stock of
counsel), for Errola Gooden, appellant.
Belovin & Franzblau, LLP, Bronx (David A. Karlin of
counsel), for respondents.

Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered October 25, 2010, which, to the extent appealed from as limited by the briefs, denied defendants' motions for summary judgment dismissing the complaint based on the failure to establish a serious injury within the meaning of Insurance Law
§ 5102(d), granted plaintiffs' cross motion for summary judgment on the issue of liability, and denied defendant Gooden's cross motion for summary judgment dismissing the complaint based on the issue of liability, unanimously modified, on the law, to grant defendants' motions to the extent of dismissing plaintiffs' 90/180-day claim, and to deny plaintiffs' cross motion, and otherwise affirmed, without costs.

The record demonstrates that, as defendant Gooden was operating his SUV on Seventh Avenue South, a taxi owned by defendant Solomon and operated by defendant Abdullah cut in front of him from his left, turned right, and caused a collision between the two vehicles at the intersection of Seventh Avenue South and Charles Street. The taxi continued on toward Charles Street, where plaintiffs Mayra and Michael Bonilla were crossing. Michael "yanked" Mayra out of the way of the oncoming cab, which caused her to trip on the sidewalk.
Plaintiffs' cross motion should have been denied, since issues of fact exist as to proximate causation. Defendant Gooden, however, failed to make a prima facie showing of entitlement to judgment as a matter of law. Indeed, his deposition testimony that he saw the taxi five to six seconds before impact raises issues of fact as to whether he was confronted with an emergency and acted prudently under the circumstances (see Dayong Liu v Peng Cheng, 82 AD3d 405, 405-406 [2011]; Trevino v Castro, 256 AD2d 6 [1998]).

Defendants made a prima facie showing that the injured plaintiff did not sustain a serious injury as a result of the accident. Indeed, defendants submitted the affirmed reports of an orthopedist finding normal ranges of motion in plaintiff's knees and lumbar spine and concluding that any injuries had resolved (Dennis v New York City Tr. Auth., 84 AD3d 579 [2011]). Defendants also submitted the affirmed report of their radiologist who, upon reviewing plaintiff's MRI film, opined that there was preexisting degenerative disc disease in the lumber spine (Colon v Bernabe, 65 AD3d 969, 970 [2009]).

In opposition, plaintiffs raised triable issues of fact as to whether the injured plaintiff sustained a significant or permanent consequential limitation of use of her knees and lumbar spine (see Insurance Law § 5102[d]). The affidavit of plaintiff's treating orthopedist contains objective, quantitative evidence of range-of-motion deficits in the lumbar spine and knees based on testing performed both immediately and approximately two years after the accident. These range-of- motion findings conflict with those of defendants' experts, who found no restrictions in range of motion. Evidence of range-of-motion limitations, especially when coupled with positive MRI test results, are sufficient to defeat summary judgment (see Colon, 65 AD3d at 970). Additionally, plaintiff's expert adequately addressed defendants' claims of preexisting degenerative disease by attributing the cause of plaintiff's injuries to the accident and noting that she was asymptomatic before the accident (see Byong Yol Yi v Canela, 70 AD3d 584, 584-585 [2010]). Plaintiff adequately explained the gap in treatment by asserting in her affidavit that she stopped receiving treatment for her injuries when her no-fault insurance benefits were cut off (see Browne v Covington, 82 AD3d 406, 407 [2011]).

Plaintiffs' 90/180-day claim, however, should have been dismissed. The injured plaintiff alleged in her bill of particulars that she was confined to bed and home for only a few weeks immediately following the accident. Although she alleged that she was confined to bed for two weeks and home for two months immediately following her surgery, she asserted in her affidavit that she was home for only two weeks after her surgery (see Williams v Baldor Specialty Foods, Inc., 70 AD3d 522, 523 [2010]).