Dear Coverage Pointers Subscribers:

Greetings from Delaware County, New York, separated from the State of Pennsylvania by the Delaware River.  Court beckons this morning.

We are at the end of a busy and well-traveled couple of weeks, which included a delightful trip to Connecticut and a great panel presentation to the local CPCU chapter on casualty coverage issues.  What a wonderfully interactive audience.  We welcome almost a score of new CP subscribers.

Here’s how our publication works.  Each issue will be in your mailbox on alternating Friday mornings (usually sent out Thursday evening) in order for you to enjoy it with your morning coffee or Mimosa.  It is attached to a cover letter (like this one) which outlines the highlights of the issue, interesting or compelling educational programs that may be upcoming, historical vignettes (what was it that happened 100 years ago, anyway?), discussions of emerging trends, notes from our team of talented authors and anything else that catches our fancy.  The issue is attached to the cover letter, and is in Word format so you can cut and paste into your files as you see fit. You will not find fancy formatting or photos, purposely designed so that you can use the issue in your daily activities, forward it to others and do with it whatever else makes you content.

The first part of the issue includes the summaries, the second part the New York cases discussed.  For those who enjoy the written word (still buy books rather than download them from the iTunes Store) feel free to print out the publication or, you may wish only to print out the first portion of the newsletter which summarizes the cases in the back of the issue.  For example, in this issue, the first 22 pages are summaries and the remainder of the 80+ page tome contains the cases discussed.

Past issues are on the firm’s website, www.hurwitzfine.com, where you will find a summary of every New York insurance coverage decision issued by a state appellate court within the last 12+ years and selected lower court opinions, as well.

Each member of our coverage team stands by to help.

An Approach to Coverage – Ascending the Podium

The roundtable discussions at the CPCU program revolved around 10 different fact patterns, each with unique coverage conundrums.  However, the give-and-take at the session by seasoned insurance professionals served as a reminder that the right “approach” to coverage problems sets the stage for an appropriate analysis.  It has been a couple of years since we addressed the formulaic approach to unraveling insurance coverage problems in this column (although too many of you have sat through one of my continuing education programs on the topic).  It’s worth a momentary reminder, or skip this section of the letter, if it is old hat! 

Remember that Torts and Coverage Claims Live in Parallel Universes
When faced with a new casualty claim, do not confuse the issues relating to the underlying file with the coverage questions that may relate to it.  Might the insured be liable for emitting toxic substances into atmosphere?  Surely so.  However, that does not necessarily mean that the loss is covered by the policy. 

Is the property owner protected by an indemnity agreement and promises of insurance coverage provided by the general contractor?  Absolutely.  However, that does not mean that the indemnity agreement is an “insured contract” or that the policy provides additional insured status for this particular loss.

Separate the Issues for Analysis, the Answer in One Plane May Not Be Consistent With the Other:
Sometimes, there can be coverage even without the named insured being liable in tort:  Perhaps the auto owner did not give permission to the driver to operate his or her car and therefore is not liable for the injuries caused by the pedestrian who was struck by the vehicle.  However, the owner’s insurer may still be responsible for paying the claim because the driver, having been given permission to drive the car by the owner’s son, had a reasonable belief that she was entitled to use it and thus qualified as an insured. 

Sometimes, there can be liability on the part of the named insured without coverage: Perhaps the named insured subcontractor did in fact orally agree to indemnify the general contractor for claims arising out of the worksite and thus is legally bound to do so.  However, since the contract was not in writing, it does not qualify as a “insured contract,” an exception to the contractual liability exclusion, and accordingly there is no coverage available to the subcontractor for the claim.

Once you have isolated the coverage issues, apply the Kohane Coverage Formula to work your way through the analysis:

C = [(WI – WO) + CPC]
Coverage = [(What’s In – What’s Out) together with (Compliance With Policy Conditions)]”

First consider the grant of coverage (the “what’s in” part of the policy) before even peeking at the exclusions.  Is there an “occurrence,” is there “bodily injury,” “property damage,” “personal or advertising injury,” a “loss,” etc.  Did the occurrence take place during the policy period, is an “insured” involved, is this a “covered location”?  Is this a Supplementary Payment? If the loss doesn’t fall within the grant of coverage, the exclusions are meaningless.

Second, if the claim falls within the “WI” part of the policy, look next to exclusions – the WO part of the policy.  Does an exclusion (or more than one), completely remove the claim from the policy.  If so, coverage is not available.  If some claims are removed and others are not, a defense under partial disclaimer or if you are outside of New York, a reservation of rights, may be appropriate, so long as there has been compliance with policy conditions.

Third, has there been CPC?  Was notice properly provided and if not, must there be a showing of prejudice if notice was untimely?  If so, has there been prejudice?  Has the insured complied with the cooperation clause?

If you follow this approach, you cannot miss a beat.

OK, for those who wanted to skip that lecture, resume reading here.  For those who found it useful, remember that on-site training is available for an extended presentation of these protocols.  I’ve jumped off the podium.

Liening Tower of Perley

A consistent theme in reporting on Medicare cases has been that Medicare should be discussed “early and often” in the course of settlement negotiations.  A federal court in Florida has added the additional requirement of “specifically” to our “early and often” recommendation. 

We report on a case today where, although approval of a Medicare Set-Aside appeared to be required in a written settlement agreement prepared at mediation.  The court refused to require a Medicare Set-Aside since the language of the mediation memorandum did not specifically require it. Defendants be warned!  When dealing with Medicare, precision is the new watchword.        

Michael F. Perley
[email protected]

One Hundred Years Ago:

Mountain (Placerville, CA) Democrat

May 11, 1912
Page 4
LIFE  INSURANCE LOSS ON TITANIC HEAVY

New York —The latest reports from the life insurance companies as to their losses by the Titanic disaster are published in the current tome of the Insurance Press.

The total loss on the part of those companies which have made up their figures comes to $1,881,111. The Northwestern Mutual Life heads the list, with $500,000. Next comes the Mutual Life, $246,000; Equitable Life, $176,000; Penn Mutual, $186,000; Travelers, $100,000; Pacific Mutual, $100,000.

The largest insurance carried by a single passenger aboard the Titanic was on the life of Herbert F. Chaffee of North Dakota. His life was insured for $146,750. The next largest was that of John B. Thayer, for $50,000. Thayer also carried $120,000 worth of accident insurance.

The latest reports from the accident insurance companies show that these companies lost a total of $1,583,000 on the Titanic. The Travelers reports a loss of $1,000,000, Aetna Life (accident), $200,000, and Standard Accident, $100,000. The biggest accident insurance policy was carried by Emil Brandeis of Omaha, $175,000.

Mr. Herbert Fuller Chaffee, 46, was born on November 20, 1865 at Sharon, Litchfield County, Connecticut, the son of Eben Whitney Chaffee and his wife Amanda Fuller Chaffee. Members of the Chaffee family had lived in Sharon since the Revolutionary War.

Herbert's father came from Litchfield Co., CT and came to Dakota in 1875 where he founded the bonanza-farming business, the Amenia-Sharon Land Co (organized with bondholders of the Union Pacific Rail Road) which had its headquarters in Amenia, North Dakota. Herbert Chaffee eventually became the chief executive officer of the family business which, at its greatest extent, controlled 42,000 acres of prime farmland, 34 grain elevators, a grain-trading firm, and three company towns with dozens of smaller company-owned businesses. Its holdings were worth perhaps $150 million in today's dollars. H. F. Chaffee, who routinely worked a 72-hour week, felt that this was only the beginning. He had developed sophisticated management systems and was constantly expanding the operation.

He continued in business in North Dakota, purchasing the interests of the remaining investors of the Amenia & Sharon Land Company in 1893.

Chaffee and his wife had been on a European trip and boarded the Titanic at Southampton, travelling in first class (cabin E-31). They were returning to their home in Amenia, Cass County, North Dakota.

Herbert died in the sinking. His body, if recovered, was never identified.

After Chaffee's death, remaining family members ran the firm jointly but continually disagreed on business strategy. In 1922 the company was dissolved and its assets distributed. Very little of its holdings remain in family hands today.

Audrey’s Angle:

This edition yet again gives rise to two common issues that are being spotted with peer reviews and IMEs.  The first issue is ensuring that a peer review denying durable medical equipment actually cites to authoritative sources that support the doctor’s conclusion.  The second issue is ensuring that your IME physician has the necessary records and films to review when the eligible injured person has pre-existing problems. 

The first issue is something that we are seeing more and more of in Upstate New York.  The arbitrators are reviewing the cited sources in the peer review to ensure that they support the doctor’s conclusion of lack of medical necessity.  It is noted that sometimes Applicant is not raising this issue in arbitration but the arbitrator is independently raising it.  Thus, an insurer should scrutinize the peer reviewer’s cited sources to ensure that they support the conclusion set forth in the peer review. 

The second issue is that an insurer, if it knows of a pre-existing or subsequent injury, must use its verification tool to obtain the medical records and films for the IME physician to review to determine causal relationship and/or medical necessity.  It is mildly alarming how many IME reports that are reviewed where the physician comments that it did not have medical records from a pre-existing accident or subsequent accident, but will still provide a conclusory opinion on lack of causal relationship or lack of medical necessity.  The more alarming reports are the ones found in the decision reported this edition where the physician does not provide a concrete opinion on causal relationship or medical necessity and the claim is denied. 

Also, please be sure to review Cassie’s Capital Connections this edition as she has reported on a significant proposed amendment to the no-fault regulations.

Finally, there is still time to register for the New York State Bar Association’s Basic Tort and Insurance Program.  The Buffalo program, which I am the local chair, will be held on June 13, 2012.  If you need additional information about the program or how to register please send me an email at [email protected] or call me at (716) 849-8900.

Audrey

One Hundred Years Ago This Week – And The Records Still Stand

Muskogee Times Democrat
Page 7
May 16, 1912
COBB WHIPS FAN

New York, May 16 —  Resenting an opprobrious epithet directed at him by an spectator during the fourth inning of Wednesday’s game, Ty Cobb leaped into the grandstand and administered a first class beating to the man who made the remark.  He immediately was put out of the game and Perry, who took Cobb’s place, struck out for the third out with the bases full in the fourth.

Detroit did not need more runs, however, as New York was defeated 8 to 4.

In May of 1912, a man named Claude Lucker, who had no hands, heckled baseball great Ty Cobb by calling the Georgia Peach "half a n****.”  Cobb entered the stands and slugged Lucker repeatedly, ignoring the pleas of fans for him to stop beating up a man with no hands.

Lucker had apparently lost his hands years earlier in an industrial accident. As the crowd pleaded, Cobb responded as he pummeled the man, "I don't care if he's got no feet!"

When Cobb was suspended indefinitely for the assault, his Tigers teammates went on strike until Cobb was reinstated. To avoid paying hefty fines and forfeiting the next game, the Tigers had to find a replacement team, and put one together made up of college and sandlot ballplayers, plus two Detroit coaches, and lost, 24–2.  Aloysius Travers was one of those replacements: a violist and college student who was assistant manager of the St. Joseph's College baseball team. In his one major league appearance, Travers pitched a complete game, allowing 26 hits and 24 runs (only 14 earned). The “giving up 24 runs in a game” record still stands.

Some of Major League Baseball's modern era (post-1901) negative records were established in this game, notably the 26 hits in a nine-inning game allowed in Travers’ complete game.  The strike ended when Cobb urged his teammates to return to the field. According to Cobb, this incident led to the formation of a players' union, the "Ballplayers' Fraternity" (formally the Fraternity of Professional Baseball Players of America), an early version of what is now called the Major League Baseball Players Association, and garnered some concessions from the owners.

Travers later entered the Society of Jesus (the "Jesuits") and was ordained as a Catholic priest in 1926. He is the only priest to have played major league baseball. Travers taught at St. Francis Xavier High School in Manhattan and was later named Dean of Men at St. Joseph College.
Editor’s Note:  On listverse.com , Cobb’s attack on Lucker (spelled Luecker in modern reports) is listed as the sixth worst event in baseball history, with George Brett’s pine tar incident being listed at number “10” and Lou Gehrig’s diagnosis and death of ALS being number “1”.

Note from Peipersville

By the time you’re reading this, I will be somewhere along the beautiful stretch of road otherwise known as Route 17.  Hopefully, I’ll be somewhere between Binghamton and Monticello.    At that same time, Dan will be somewhere in parts unknown (otherwise known as Delaware County) and Cassie will be headed to other parts unknown (Mineola).  Thanks to an ongoing partnership with our clients, our tentacles truly reach both near and far.

Speaking of the near, a special thank you to those of who turned out at the Erie County Bar Association’s recent Labor and Employment Law Symposium.  For those of you who didn’t, you missed a rousing discussion on Long Term Disability Insurance Litigation.  A second thank you is due to the group that attended NBI’s recent Coverage Update here in Buffalo. 

If you’ve missed us, or if you can’t get enough of us, please consider the New York Bar Association’s Advanced Insurance Coverage Update on May 21, 2012.  Dan and I will be presenting, as part of a top notch collection of insurance practitioners.  If that doesn’t work, you can catch Audrey and myself at the New York Bar Association’s Basic Tort Seminar on June 13, 2012. 

If you are afar, we remind you that we would be happy to come to you.  Please give us a call to schedule in-house training. 

Even if you don’t call, we will still come to you!  I was honored to be asked to speak at the Nassau Academy of Law’s Insurance Law Update.  The program, which is geared toward auto insurance, is scheduled for June 27, 2012.  Jonathan Dachs, a frequent contributor to Coverage Pointers and excellent coverage lawyer in his own right, will also be presenting at the event. 

See you in two weeks. In the meantime, please take a moment to review this week’s offering.  We’d especially direct your attention to the Fourth Department’s recent decision in Bermingham

Steven E. Peiper
[email protected]

Here are the headlines from today’s issue, attached:

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

  • Ohio Law Governs Late Notice Question for Policy That Was Issued in Ohio
  • Not Enough Proof to Resolve Choice of Law Question
  • Exclusion for “Unentitled Profit” Not Applicable to Contract Claim
  • In SUM Case, Framed Issue Judge’s Ruling That Consent to Settle Was Never Sought Is Upheld
  • No Acceptable Excuse for Late Notice Vitiates Coverage
  • Employer’s Exclusion Properly Invoked
  • Direct Action Permitted to Challenge Denial of Additional Insured Status as Well

 

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

 

COURT REFUSES TO ENFORCE MEDICARE SET-ASIDE WHERE SETTLEMENT AGREEMENT ONLY REQUIRES “APPROVED…MEDICARE PROVISIONS”

 

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

[email protected]

  • Yes, a Fractured Nose Is a Threshold Injury
  • Plaintiffs Fail to Raise Triable Issues of Fact
  • Plaintiff’s Evidence Raises Issue of Fact Regarding Right Shoulder Injury
  • 13% Limitation Is Insignificant
  • Contemporaneous Findings Are Relevant to Causation and 90/180-Day Category
  • Rebuttal Evidence Insufficient Where It Fails to Address Prior Complaints
  • Claims for Punitive Damages and Loss of Services Dismissed on Appeal
  • Plaintiff’s Claim Fails as Most Current Evidence Submitted Predates IME by Two Years
  • Allegation That Injury Is Degenerative Is Successfully Rebutted
  • Proof That Plaintiff Could Get Out of Bed Is Insufficient to Defeat 90/180-day Claim
  • Phantom Medical Evidence Fails to Support Plaintiff’s Claim
  • All You Need Is One Threshold-Meeting Injury
  • Lengthy Two-Judge Dissent – Albany Anyone?

 

AUDREY’S ANGLES ON NO-FAULT
Audrey A. Seeley
aas@hurwitzfine.com

 

ARBITRATION

  • Lack of Testimony on Receipt of Durable Medical Equipment Results in No Award for That Equipment
  • Lack of Verification for Pre and Post MVA Records Results in Expert’s Incomplete Opinion
  • Mother-In-Law’s Services Reimbursable as Household Help

 

LITIGATION

  • Claim Specialist’s Affidavit Sufficient to Establish Outstanding Verification
  • Plaintiff’s Rebuttal Affidavit Did Not Specifically Rebut Conclusions in Peer Review
  • Insurer Demonstrated Failure to Attend Scheduled IMEs
  • Peer Review Met Requirement of Sufficient Factual and Medical Rationale of Lack of Medical Necessity

 

PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper

[email protected]

Property

  • Absent an Express Provision in the Mortgage, a Lender Is Not Obligated to Procure Fire Insurance on the Subject Premises
  • Mechanism for Overturning an Order Based on Collateral Estoppel Is a Motion for Relief from Judgment/Order

 

Potpourri

  • Criminal Conviction Creates Collateral Estoppel in Subsequent Coverage Action
  • Appellate Division Adjusts Quantum Meruit Share on Attorneys’ Fees
  • Question of Fact on Proximate Cause Against One Party Does Not Preclude Summary Judgment Against Other Defendants

 

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

  • No Fault Fraud

 

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

  • Ambiguity in Policy Results in Coverage for the Insured

 

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

  • Where Insurer Fails to Timely Move for a Stay of SUM Arbitration, Court Refuses to Stay Arbitration Even Where Tortfeasor’s Insurance Policy has Not Yet Been Exhausted
  • Court Refuses to Consider Any Evidence of the Insured’s Late Notice Not Cited In Disclaimer Letter
  • Claim of Insured Dismissed Where It was Not Represented By Counsel; Claim of Injured Party Also Dismissed Where It Did Not Have a Judgment

 

EARL’S PEARLS
Earl K. Cantwell

[email protected]

$7 MILLION BAD FAITH AWARD ON BUILDER’S RISK POLICY REVERSED

That’s it.  Be well, stay happy, keep in touch.
P.S.  We love your feedback.
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

 

Volume XIII, No. 23
Friday, May 11, 2012

A Biweekly Electronic Newsletter

Hurwitz & Fine, P.C.
1300 Liberty Building
Buffalo, NY 14202

Phone: 716-849-8900

Fax: 716-855-0874
www.hurwitzfine.com

© Hurwitz & Fine, P. C. 2012
All rights reserved

As a public service, Hurwitz & Fine, P.C. is pleased to present its biweekly newsletter, providing summaries of and access to the latest insurance law decisions from the New York State appellate courts.  The primary purpose of this newsletter is to provide timely educational information and commentary for our clients and subscribers.

If you know of others who may wish to subscribe to this free publication, or if you wish to discontinue your subscription, please advise Dan D. Kohane at [email protected] or call 716-849-8900.

You will find back issues of Coverage Pointers on the firm website listed above.

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
Liening Tower of Perley
Margo’s Musings on “Serious Injury”
 Audrey’s Angles on No Fault
Peiper on Property and Potpourri

Cassie’s Capital Connection
Fijal’s Federal Focus
Jen's Gems
Earl’s Pearls
Across Borders

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

05/10/12       FC Bruckner Associates, L.P. v. Fireman's Fund Insurance Co
Appellate Division, First Department
Ohio Law Governs Late Notice Question for Policy That Was Issued in Ohio
Plaintiffs were New York subsidiaries of Forest City Enterprises, Inc., an Ohio corporation and were insured under a Fireman’s Fund (“FFIC”) excess policy issue to the parent corporation.  They sought indemnity under the FFIC policy.  Did New York Law apply (untimely notice did not require a demonstration of prejudice under the policy for pre-January 17, 2009 policies) or did Ohio law apply where an insured gives late notice of a claim has presumptively demonstrated prejudice but the claimant can be show the absence of prejudice.  Additionally, plaintiffs maintain that FFIC's notice of disclaimer was late and that they are entitled to the statutory timely-notice-of-disclaimer protection of New York Insurance Law § 3420(d).

A conflict of laws question was presented.  Applying New York’s “center of gravity” approach, Ohio law has the most significant relationship to the transaction and the parties. The insurance broker and third-party administrator are also located in Ohio, and the FFIC excess policy contained an Ohio-specific endorsement.  The policy applies to multi-state subsidiaries and risks and one state’s law should apply to the policy, Ohio.

The policy was not issued in New York, but in Ohio. Accordingly, Ohio law governs the dispute.

05/10/12       State Farm Mutual v. Hernandez
Appellate Division, First Department
Not Enough Proof to Resolve Choice of Law Question
Hernandez, a New York resident, was involved in an accident in New Jersey with a Freightliner tractor trailer driven by Byron. Hernandez filed a demand with the American Arbitration Association against State Farm seeking to arbitrate her uninsured motorist claim. State Farm argued that Lincoln General insured the vehicle. Lincoln disclaimed coverage on the ground that Byron was engaged in a business pursuit at the time of the accident. It invoked an exclusion in its "non-trucking" policy, which excluded from coverage an insured vehicle that was being used for a business purpose.

State Farm, argued that the exclusion is void as against public policy, as it violates New York law provisions requiring owners or operators of vehicles used or operated in this state to be financially liable for injuries or damages caused by an accident arising out of use of the vehicle.  Lincoln contends the accident occurred in New Jersey, Lincoln is located in Pennsylvania, the driver’s employer is in Florida, the owner of the truck is located in Texas, Byron was hauling a trailer owned by a Texas corporation, and Byron resides in Texas.

There was no proof offered as to where the truck was principally garaged or used although Lincoln claimed New York, delivered or where the truck was principally operated or garaged. As such, the record is insufficient to determine whether New York law is inapplicable.

05/08/12       Shoreham-Wading River CSD v. Maryland Cas. Co.
Appellate Division, Second Department
Exclusion for “Unentitled Profit” Not Applicable to Contract Claim
The Shoreham-Wading Central School District (“District”) was sued for allegedly breaching and (anticipatorily) repudiating a contract with a consultant. The consultant was hired to obtain additional state aid for the district in exchange for a payment of a percentage of the state aid ultimately received by the district for the years covered by the contract.  In the underlying action, the consultant seeks to recover damages "calculated on the basis of 10% of all additional state aid already received or to be received in the future" by the District for the years covered by the contract. The District sought coverage under a Maryland Casualty (“Maryland”) policy and Maryland agreed to defend under a reservation of rights.

Later, Maryland disclaimed under an exclusion "[a]ny Claim' based upon or attributable to the Insured' gaining any profit, advantage or remuneration to which the Insured' is not legally entitled." Maryland stopped paying defense costs.

The District sued and the insurer counterclaimed, seeking to recover past defense costs.

The Court found that Exclusion B does not apply to bar coverage for the underlying action. The consultant did not assert a claim based upon the District's acquisition of any profit, advantage, or remuneration to which it was not legally entitled, but seeks, as contractual damages, a percentage of the state aid which the district will ultimately receive for the years covered by the contract. There is no allegation that the district was not legally entitled to the state aid that it received.
Editor’s Note:  The decision was released two days before publication of this issue. We are trying to better understand the kind of policy involved.  This sounds like a breach of contract claim to us, rather than one that would fall within the ambit of a liability policy.

05/03/12       In the Matter of GEICO v. Morris
Appellate Division, Second Department
In SUM Case, Framed Issue Judge’s Ruling That Consent to Settle Was Never Sought Is Upheld
GEICO claimed that the insured, who was now trying to pursue a SUM claim, never sought permission to settle with the tortfeasor.  Insured’s counsel contended that he send a letter asking for consent but carrier rebutted this presumption by presenting evidence demonstrating its "regular practices and procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims.

05/03/12       Kalthoff v. Arrowood Ind. Co.
Appellate Division, Third Department
No Acceptable Excuse for Late Notice Vitiates Coverage
In July 1999, Kathloff was hurt when she fell on the insured’s premises (“Casual Male”). The insured had a policy with Arrowood and learned of the accident immediately. In 2001, plaintiff sued Casual Male and the insured filed for bankruptcy about that time.  Three years later, the bankruptcy stay was lifted to allow the personal injury action to go forward and five months after that, Arrowood was first put on notice of the accident and lawsuit. It denied coverage based on the late reporting.  After taking a default judgment, against the insured, the plaintiff-turned-judgment creditor brought a direct action against Arrowood to enforce the judgment.

Arrowood moved for summary judgment on the ground that the notice was late, Kalthoff cross-moved arguing that defendant's disclaimer of coverage was not effective against them.

In support of its motion, defendant presented evidence that, even though plaintiffs became aware in February 2003 that the insured had an applicable general liability insurance policy and, as of September 2003, that defendant was the entity that had issued such, plaintiffs did not provide notice to defendant until October 2004. The excuse offered by the plaintiffs was the bankruptcy of the insured.  Of course, bankruptcy by an insured does not impact on its liability coverage so the excuse was insufficient.

As notice first came from the plaintiff, and not the insured, the carrier was obligated to deny coverage based on the injured party’s late notice.  The Third Department found that the disclaimer letter worded broadly enough to encompass the lateness of notice by the injured party.
Editor’s note:  The last point is the one deserving special emphasis.  Not having seen the disclaimer, we cannot critique the finding but the lesson is important to remember.

Under the New York Insurance Law, the injured party and other claimants have the statutory right to give notice of an accident or claim to a liability insurer.  The timeliness of that party’s notice is measured by its ability to give notice and its diligence in seeking the identity of the carrier so that notice may be given.

IF notice is first provided by the injured party AND the carrier believes that the injured party did not exercise diligence in trying to identify the carrier to whom notice should be given, the insurer’s denial should be based on not only the insured’s breach of the policy conditions but on the injured party’s own late notice.  Our high court has held that a failure to raise the injured party’s late notice when notice comes from that party can be fatal to sustaining a coverage denial.

05/01/12       Total Concept Carpentry, Inc. v. Tower Ins. Co.
Appellate Division, Third Department
Employer’s Exclusion Properly Invoked
Tower denied coverage based on the “employer’s liability” exclusion in the policy
Based on the four corners of the insurance agreement , defendant had no duty to defend or indemnify because it established that there was "no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision".

The record shows that defendant properly disclaimed coverage to plaintiff contractor based on the Employer's Liability exclusion in the policy. Although this particular exclusion does not apply to liability the insured assumed under an "insured contract," the Contractual Liability Limitation endorsement deletes any reference in the definition of "insured contract" to a "contract or agreement pertaining to your business . . . under which you assume the tort liability of another party to pay for bodily injury' or property damage' to a third person or organization."

Moreover, Tower's disclaimer to Avalon relied on the Additional Insured endorsement that states: "[t]his insurance does not apply to acts or omissions of the Additional Insured nor liability imposed on the additional insured by statute, ordinance or law." In the underlying lawsuit, the court dismissed all claims against Avalon except for those based on Labor Law §§ 240(1) and 241(6). Even though Avalon could be found actively negligent under Labor Law § [*2]241(6), the endorsement excludes coverage for Avalon's acts or omissions.
Editor’s Note:  Attaboy Max.

04/26/12       Lue v. Finlekstein & Partners, LLP
Appellate Division, Third Department
Direct Action Permitted to Challenge Denial of Additional Insured Status as Well
This one came up in an interesting way.  Lue was hurt when he fell from a scaffold in 2002, while an employee of O’Connell at a site owned by K-Mart.  K-Mart filed bankruptcy and Lue’s lawyer failed to preserve the Labor Law Section 240 case in the Bankruptcy Court, so that right of recovery was lost.

While the plaintiff eventually settled his claim with the scissor lift rental company for $235,000, he brought a legal malpractice action asserting that he would have had a larger recovery if his Labor Law § 240 strict liability claim against K-Mart had been preserved by his lawyers.

Cross-motions for summary judgment were made, with the law firm arguing that plaintiff could not prove that defendants' alleged malpractice caused him any damages beyond what he had recovered from United Rentals.  The defendant law firm argued that, even if they had preserved a claim against K-Mart, funds would not have been available to collect on a favorable Labor Law § 240 cause of action because K-Mart was self-insured and the record does not establish that K-Mart was named as an additional insured on O'Connell Electric's policy with its insurer, Interstate Insurance Group.

The plaintiff argued that O'Connell Electric had agreed in a written contract to indemnify K-Mart as well as name K-Mart as an additional insured, and that an avenue to O'Connell Electric's insurer was provided by Insurance Law § 3420 and the Bankruptcy Code.

The court held that the Legislature created a remedy in Insurance Law § 3420 to permit an injured party to challenge a denial of coverage to a defendant after a judgment was rendered against that defendant.  The “Direct Action” serves that purpose and applies equally to claims for status as a named insured as it does to claims that the defendant-turned-judgment debtor is an additional insured. In addition, the bankruptcy of a defendant does not protect its insurer for claims under the bankrupt’s policy.

There was no proof in the record of whether or not O’Connell actually named K-Mart as an additional insured.  Under such circumstances, plaintiff has failed to establish as a matter of law that a potential claim existed under Insurance Law § 3420 against Interstate Insurance Group.  Nor does this record support the conclusion that the contractual indemnification claim was established as a matter of law as a way that plaintiff could have reached the funds of Interstate Insurance Group.

LIENING TOWER OF PERLEY

Michael F. Perley
[email protected]

Bruton v. Carnival Corporation, 2012 U.S. Dist. LEXIS 64416 (U.S.D.C. – Southern District of Florida)

COURT REFUSES TO ENFORCE MEDICARE SET-ASIDE WHERE SETTLEMENT AGREEMENT ONLY REQUIRES “APPROVED…MEDICARE PROVISIONS”

In a settlement involving a slip and fall on one of Carnival Corporation’s cruise ships, the parties at a formal mediation agreed to a settlement that required “approved…Medicare provisions” but did not require the creation of a Medicare Set-Aside.  The release merely contained indemnity language for the benefit of the defendant and an agreement to retain a portion of the settlement proceeds in an attorney’s trust account for three years or “until Medicare provides [plaintiff] with written notice that any claim for reimbursement…has been waived or resolved, whichever occurs first.” The absence of a Medicare Set-Aside was based upon plaintiff’s representation that the plaintiff had reached maximum medical improvement and that no further treatment was required.  The defendant refused to make payment and a motion to compel the settlement was brought by the plaintiff.  The Court upheld the release and compelled payment based upon the fact that the mediation settlement did not specifically require a Medicare Set-Aside and held that the fact that the release contained provisions relating to Medicare satisfied the terms of the mediation settlement.

This ruling highlights the need for specificity when dealing with Medicare issues.  Even though Medicare was brought up as a general proposition, the failure of the defendant to specifically indicate the necessity of a Set-Aside prevented it from compelling the creation of a Set-Aside account by the plaintiff.

 

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

[email protected]

05/10/12       Lavy v. Zaman
Appellate Division, First Department

Yes, a Fractured Nose Is a Threshold Injury
Plaintiff hit her face on the partition between the front and rear seats when the taxi in which she was a passenger rear-ended another vehicle.  She claimed a fractured nose which defendants not only failed to disprove, but their own expert acknowledged that the ER records diagnosed a nasal fracture.  Clearly, summary judgment failed.

05/08/12       Gordon v. Blaha
                    Ramkalawon v. Correa
Appellate Division, Second Department

Plaintiffs Fail to Raise Triable Issues of Fact
In identical decisions, plaintiffs appealed, and lost, the decisions of the trial court which found defendants met their burdens establishing that the injuries to plaintiffs’ lumbosacral regions of their spines did not constitute serious injuries.

05/08/12       Smith v. Tampe
Appellate Division, Second Department

Plaintiff’s Evidence Raises Issue of Fact Regarding Right Shoulder Injury
Although defendant met her prima facie burden, plaintiff presented sufficient competent medical evidence to raise a triable issue of fact as to whether the injury to her right shoulder met threshold under the permanent consequential and/or significant limitation of use categories.

05/08/12       Il Chung Lim v. Chrabaszcz
Appellate Division, Second Department

13% Limitation Is Insignificant
Plaintiff claimed injuries to the left knee but defendant submitted evidence that the injury was degenerative and not caused by the accident.  In opposition, plaintiff’s treating physician’s most recent report indicated a 13% limitation in range of motion.  This is insignificant within the meaning of the no-fault statute.  In addition, neither plaintiff’s radiologist nor his treating physician addressed the findings of defendant’s radiologist regarding the degenerative condition of the left knee and the conclusion that the injuries were caused by the accident were speculative.  Plaintiff’s claim under the 90/180-day category also failed as he stated, in his bill of particulars, that he was only incapacitated for two days and he admitted to defendant’s examining orthopedist that he only missed two days of work as a limo driver.

05/03/12       Crawford-Reese v. Woodard
Appellate Division, Third Department
Contemporaneous Findings Are Relevant to Causation and 90/180-Day Category

The trial court granted defendant’s motion and, on appeal, plaintiff limited her argument to the 90/180-day category.  In opposition to defendant’s prima facie showing, plaintiff submitted the affidavit of her chiropractor, who began treating her four years after the accident.  He opined that, as a result of the 2006 accident, plaintiff suffered from a torn left bicep and various knee injuries, not the result of aging, and which, from the date of the accident, prevented her from performing substantially all her usual daily activities.  The court found, however, that the chiropractor’s conclusions were not supported by any medical restrictions placed on plaintiff during the relevant period and that, while quantitative testing years after an accident could be relevant with respect to the permanency of any injury, contemporaneous findings were relevant with respect to causation and the 90/180-day category.  Because plaintiff did not treat with the chiropractor until four years after the accident, he was not competent to discuss her activities during the 180 days following the accident.  As such, the complaint was properly dismissed.

05/03/12       Cirillo v. Swan
Appellate Division, Third Department

Rebuttal Evidence Insufficient Where It Fails to Address Prior Complaints
Plaintiff alleged injuries under the permanent consequential and/or significant limitation of use categories and submitted, in rebuttal to defendant’s prima facie showing, two affidavits.  Her family physician opined that the disc bulges and possible herniations seen in an MRI arose out of the accident and left plaintiff significantly and permanently disabled.  He did not explain, however, how her limitations were not related to her prior complaints for which she had treated extensively.  Similarly, the affidavit of her spine pain management specialist, although quantifying how the alleged injuries limited her range of motion, failed to address her prior back conditions.  As such, plaintiff’s submissions failed to raise a triable issue of fact to rebut defendant’s showing.

05/01/12       Rodgers v. Duffy
Appellate Division, Second Department

Claims for Punitive Damages and Loss of Services Dismissed on Appeal
Plaintiff was a passenger in a car driven by defendant, who allegedly was intoxicated.  Defendants’ motion was properly denied because they failed to meet their prima facie burden with respect to serious injury as their expert failed to set forth the objective tests performed with regard to plaintiff’s alleged wrist injuries.  However, on appeal, the trial court’s order was modified to grant defendants’ branches of their motion which were to dismiss the claims for punitive damages and loss of services.  Evidence of intoxication is insufficient, in of itself, to justify the imposition of punitive damages, and the alleged tortious conduct and injuries occurred prior to the plaintiff’s marriage.

05/1/12         Zambrana v. Timothy
Appellate Division, First Department

Plaintiff’s Claim Fails as Most Current Evidence Submitted Predates IME by Two Years
Plaintiff was involved in an accident in 2008.  In 2010, he underwent an orthopedic IME and was noted to have full range of motion.  Despite his contentions, the trial court found, and the appellate court affirmed, that he did not raise a triable issue of fact as the most recent evidence he submitted was from two years before the IME examination which found any symptoms to be fully resolved.  In addition, his own medical records and deposition testimony belied his 90/180-day claim and his affidavit, without any corroborating objective medical evidence, was insufficient to support the claim.

05/01/12       Thompkins v. Ortiz
Appellate Division, First Department

Allegation That Injury Is Degenerative Is Successfully Rebutted
On appeal, the order is modified to reinstate the claims under the permanent consequential and/or significant limitation of use categories.  Here, plaintiff was injured as she was alighting from a cab that began to drive away before she had completely exited.  The cab allegedly ran over her foot and the door hit her knee.  Defendants submitted evidence that the knee injury was degenerative and that there was no evidence of recent injury.  They also submitted the affirmed report of an orthopedic surgeon who found full range of motion in plaintiff’s knee, ankle and foot.

In opposition, plaintiff submitted reports that stated an MRI showed a meniscal tear, the report of the surgeon who performed arthroscopy on the knee, and an orthopedist who found limited ranges of motion during a recent examination and opined that the injuries were permanent and would require further treatment.  This evidence warranted reinstatement of the permanent consequential and/or significant limitation of use claims but plaintiff’s 90/180-day claim was, however, properly dismissed because she missed only one day of school.

05/01/12       Correa v. Saifuddin
Appellate Division, First Department

Proof That Plaintiff Could Get Out of Bed Is Insufficient to Defeat 90/180-day Claim
Plaintiff was delivering take-out on his bicycle when he was struck from behind by a taxi and thrown to the ground, allegedly injuring his head, neck, back and right shoulder and knee.  The only issue on appeal concerned the 90/180-day category.  Defendants’ relied on plaintiff’s deposition testimony where he admitted being confined to his home for one month.  Defendants’ also argued that plaintiff produced no evidence that he was directed to not work, and the conclusions of their experts that stated plaintiff suffered no traumatic injuries from the accident.

The trial court ruled, and on appeal the court agreed, that defendants did not meet their burden with respect to the 90/180-day category because reliance on plaintiff’s testimony that he was confined for one month was insufficient.  Plaintiff’s bill of particulars stated that he was incapacitated from work and from pursing his usual duties from the date of the accident in October 2008 to the date of the bill of particulars in May 2009.  The fact that plaintiff was able to leave his house did not demonstrate that he was able to perform substantially all his usual daily activities.  Thus, defendants failed to satisfy their burden and their motion, with respect to the 90/180-day category, was properly denied without plaintiff being required to make any showing.
Note:  This an interesting decision for understanding the nuances of the 90/180-day category of serious injury as the court compares and contrasts its previous decisions.  There is also an in-depth dissenting opinion – only one judge, however, so no trip to the Court of Appeals as of right this time.

05/01/12       Rosa v. Mejia
Appellate Division, First Department

Phantom Medical Evidence Fails to Support Plaintiff’s Claim
Although plaintiff testified she was treated by numerous medical providers immediately following the accident, and her deposition testimony stated that she was treated in the ER the day of the accident and again three days later, and her bill of particulars referenced numerous providers and stated that bills and records were attached, there were no bills or treatment records before the court.  Nor could plaintiff recall the names of any of her providers other than that of her treating physician, who did not see her until five and a half months after the accident.  In fact, other than uncertified copies of MRI reports from February 2008, there was no evidence of any treatment prior to June 2008 when she first saw her treating physician.

The court noted that the Court of Appeals decision in Perl v Meher does not abrogate the need for a contemporaneous qualitative assessment and the Court, fact, quoted with approval from a legal article which stated that “a contemporaneous doctor’s report is important to proof of causation; an examination by a doctor years later cannot reliably connect the symptoms with the accident.  But where causation is proved, it is not unreasonable to measure the severity of the injuries at a later time.”

Here, there was no admissible proof that plaintiff saw any medical provider until five and a half months after the accident.  While contemporaneous quantitative measurements are not a prerequisite to recovery, some type of contemporaneous treatment is necessary so as to establish the causal relationship to the accident. 

04/26/12       Camacho v. Espinoza
Appellate Division, First Department

All You Need Is One Threshold-Meeting Injury
Plaintiff claimed cervical, lumbar, left shoulder and left wrist injuries.  In opposition to defendants’ motion, she submitted the affirmed report of her orthopedic surgeon which stated that she continued to have range of motion restrictions in her left shoulder even after surgery.  She also submitted an affidavit from her chiropractor which quantified the range of motion limitations in her cervical spine.  Even though her physicians did not directly address defendants’ expert’s opinion that the cervical injuries were degenerative, because her physician attributed the injuries to a different, but plausible cause, namely the accident, this was sufficient, and because she established that some of the injuries met threshold, it was not necessary to show that all her injuries did.  Her alleged lumbar injury, however, could not be considered because plaintiff did not rebut defendants’ proof with respect to causation.

04/26/12       Vaughan v. Leon
Appellate Division, First Department

Lengthy Two-Judge Dissent – Albany Anyone?
The central issue is one that comes up often, and we have even in this very issue of Coverage Pointers:  Defendant’s experts attribute the injuries to degenerative conditions.  In rebuttal, plaintiff’s experts do not directly address the findings of defendant’s experts, but rather attribute the injuries to “a different, but plausible, cause”, meaning, naturally, the accident (see Camacho, discussed above). 

Here, the majority determined that the findings of plaintiff’s treating physician, who first saw her nine days after the accident, were sufficient to establish that the injuries were caused by the accident and the fact that he did not explain what the MRI report stated or whether it was affirmed, was not important. The majority determined that what is important is the fact that the treating physician’s report is affirmed and that he made his own clinical findings based on the history provided by plaintiff and his education, training and experience. 

The majority and the two-judge dissent disagree on the application and meaning of the holdings in Perl, as well as in Carrasco v Mendes, one of the appeals in the Pommells trilogy.  The dissent compares this case to Carrasco, where the plaintiff offered “nothing on causation but the treating physician’s naked assertion.”  The dissents’ position is that the Court of Appeals, and the weight of authority in the First Department, holds that “in the face of expert evidence attributing a plaintiff’s alleged symptoms to a preexisting degenerative condition, the plaintiff must come forward with an expert opinion articulating some reason for attributing the symptoms to the accident.”  Here, in contrast, the majority has permitted (according to the dissent) the plaintiff to defeat summary judgment with “nothing more than a boilerplate, uninformative “catechism” over a physician’s signature.”
Note:  A rather “naked” summary because this is a must read.

 

AUDREY’S ANGLES ON NO-FAULT
Audrey A. Seeley
aas@hurwitzfine.com

ARBITRATION
05/07/12       RS Medical v. Respondent
Arbitrator Kent L. Benziger, Erie County
Lack of Testimony on Receipt of Durable Medical Equipment Results in No Award for That Equipment

The Applicant sought reimbursement for an RS interferential muscle stimulator and cervical traction unit.  The Applicant’s assignor was involved in a September 7, 2010, motor vehicle accident with complaints of, inter alia, headaches, neck pain, left should pain, mid and low back pain.  Dr. Butani prescribed the durable medical equipment to the assignor a little over three months post accident to treat intervertebral disc displacement, cervicobrachial syndrome and brachial neuritis.

The insurer denied the muscle stimulator upon the peer review of Dr. Alexander Merson and the cervical traction unit upon the independent examination performed by Dr. Joseph Margulies.  Dr. Merson’s peer review cited to a number of authoritative sources for the proposition to support his conclusion that the muscle stimulator was excessive since it was prescribed while physical therapy was being performed.  Dr. Margulies’ examination concluded that the assignor had resolved cervical and lumbar sprain based upon the negative objective testing.

The assigned arbitrator determined that the cervical traction unit was not medically necessary since the assignor during her testimony at the arbitration never mentioned receiving the cervical traction device.

Yet, the assigned arbitrator determined that the peer review was not persuasive to deny the muscle stimulator.  He reasoned that Dr. Merson’s peer review cited to sources that provided conflicting standards and did not set forth a basis that the equipment deviated from the generally accepted practice.

05/08/12       Buffalo Neurosurgery Group v. Respondent
Arbitrator Thomas J. McCorry, Erie County
Lack of Verification for Pre and Post MVA Records Results in Expert’s Incomplete Opinion

The Applicant sought reimbursement for post surgical office visits for treatment allegedly related to a May 23, 2009, motor vehicle accident.  The insurer denied the treatment upon the independent medical examination of Dr. Fred Cohen.  Dr. Cohen’s report indicated that the assignor’s health was severely compromised by his prior surgeries and failure to cease smoking.  Dr. Cohen indicated that his examination was very limited.  He further stated he was only able to scratch the surface on the assignor’s problems.  Dr. Cohen opined that he doubted there was any causal relationship between the assignor’s current issues and the motor vehicle accident.  However, he further admitted he could not reach the conclusion was any degree of medical probability without reviewing x-ray, MRIs, and CT scans from before and accident the accident as well as a pre and post accident medical records.

The assigned arbitrator did not uphold the denial as Dr. Cohen’s report indicated he needed additional records to render a complete medical opinion.  The insurer had the ability to seek verification of these records and its failure to do so was noted to have an adverse effect on sustaining its burden of lack of causal relationship or medical necessity.

05/01/12       Applicant v. Respondent
Arbitrator Kent L. Benziger, Erie County
Mother-In-Law’s Services Reimbursable as Household Help

The Applicant sought reimbursement for lost wages and household help that the Applicant’s mother in law provided.  The Applicant was involved in an October 8, 2010, accident and was diagnosed with either disc bulges or herniations from C2/3 through C67 as well as an L5/S1 disc herniation impinging on the S1 nerve root.  The Applicant submitted disability notes from his treating physicians for the lost wage period sought.

The insurer denied the entire no-fault claim upon an independent medical examination conducted by Dr. Mario Lecuona.  Dr. Lecuona’s initial examination revealed positive objective findings with a determination of a mild orthopedic disability.  Dr. Lecuona opined the Applicant could work with no lifting over 25 pounds and should be re-examined in six weeks.

Dr. Lecuona performed a follow up examination and determined that the Applicant did not fully cooperate with the examination.  He determined that the Applicant’s injuries resolved.

The assigned arbitrator did not find Dr. Lecuona’s examination persuasive in denying the lost wage claim.  Dr. Lecuona’s examination did not discuss Applicant’s job requirements and the positive diagnostic findings when determining that Applicant could return to work.  The assigned arbitrator determined that the denial was issued without further inquiry into the Applicant’s job’s physical requirements.  The assigned arbitrator indicated that the Applicant was employed stocking store shelves and it was unlikely that he was required to lift less than the restriction placed upon him in order to perform his job.  Also, Dr. Lecuona did not address or discuss the positive MRI and CT studies in his report.  Overall, the assigned arbitrator determined that the treating physician’s reports, which were contemporaneous with Dr. Lecuona’s examinations were more thorough and persuasive.

With regard to the household help claim for services the Applicant’s mother in law performed, the assigned arbitrator did not uphold the denial.  The denial was based upon a conclusion that the work the mother in law performed was done by someone who would ordinarily perform the service as party of a family relationship.  The assigned arbitrator determined that there was nothing documented by the Respondent that the Applicant and mother in law resided at the same premises or that the services were part of a family relationship. 

LITIGATION

04/27/12       Infinity Health Products Ltd. a/a/o Brent Smith v. Liberty Mut. Fire Ins. Co.
Appellate Term, Second Department
Claim Specialist’s Affidavit Sufficient to Establish Outstanding Verification

The insurer’s cross-motion for summary judgment should have been granted.  The insurer’s submission of a claim specialist’s affidavit did establish that the insurer timely mailed requests and follow-up requests for verification.  Further, that affidavit also established that the plaintiff did not respond to the verification requests.  Thus, the plaintiff’s action is premature.

04/25/12       Neomy Med. PC a/a/o Jermel Washington v. American Transit Ins. Co.
Appellate Term, Second Department
Plaintiff’s Rebuttal Affidavit Did Not Specifically Rebut Conclusions in Peer Review

Again, the insurer’s cross-motion for summary judgment should have been granted.  The insurer submitted sufficient evidence to establish lack of medical necessity based upon a peer review.  The plaintiff’s supervising physician’s affidavit to not justify with specificity the additional studies warranted to rebut the conclusions set forth in the peer review.  Thus, the plaintiff did not raise any triable issue of fact in opposition to the insurer’s cross-motion.

04/25/12       Axis Chiropractic, PLLC a/a/o James Galarza v. Clarendon Nat’l Ins. Co.
Appellate Term, Second Department
Insurer Demonstrated Failure to Attend Scheduled IMEs

The insurer’s motion dismissing the complaint was proper as the insurer demonstrated a policy condition violation of failure to appear for scheduled IMEs.  The insurer submitted sufficient affidavits from the third party company’s president that scheduled the insurer’s IMEs as well as an affirmation from the expert orthopedist who was to perform the IMEs that the assignor did not appear for the scheduled IMEs.  Further, the insurer submitted a sufficient affidavit from its claims examiner as to the timely issuance of the denial based upon a policy violation to appear for scheduled IMEs.

04/25/12       Complete Radiology, PC a/a/o Nathaniel Hunt v. GEICO Ins. Co.
Appellate Term, Second Department
Peer Review Met Requirement of Sufficient Factual and Medical Rationale of Lack of Medical Necessity

The insurer’s summary judgment motion was properly granted as the peer review report it relied upon to establish lack of medical necessity set forth a sufficient factual and medical rationale for the determination.

PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper

[email protected]

Property

05/08/12       Dookie v Astoria Federal Savings Bank
Appellate Division, Second Department
Absent an Express Provision in the Mortgage, a Lender Is Not Obligated to Procure Fire Insurance on the Subject Premises
Plaintiff obtained a mortgage for the purchase of multi-family dwelling.  The mortgage provided that plaintiff would procure, and maintain, fire insurance on the premises.  The mortgage also provided that if insurance on the premises should lapse, Astoria (as the lender) was permitted to procure insurance.  It is noted that the mortgage did not obligate Astoria to purchase insurance for the premises.

At the conclusion of the first policy term, plaintiff apparently elected not to renew its insurance policy.  Thereafter, plaintiff obtained coverage with a different insurer.    Plaintiff alleges that the insurance he later procured contained terms that were not as favorable as the initial policy, and that per the mortgage terms Astoria was obligated to maintain the insurance for the premises.  As a result plaintiff commenced the instant suit against Astoria, therein alleging that Astoria had breached its contractual obligations to procure coverage.

In affirming the trial court’s dismissal of the claim, the Appellate Division noted that (a) plaintiff elected to not renew the original policy at the conclusion of the first policy period and (b) that the mortgage indicated that Astoria could procure coverage if it so chose.  There was no obligation in the mortgage which would have compelled Astoria to procure coverage.

05/03/2012   Beneficial Homeowner Serv. Corp. v Mason
Appellate Division, Third Department
Mechanism for Overturning an Order Based on Collateral Estoppel Is a Motion for Relief from Judgment/Order
Prior to his death, Kevin Mason obtained a life insurance policy which would cover the mortgage issued by Beneficial.  When Mr. Mason died shortly after the policy was written, his Estate made a claim under the Policy issued by First Central Life Insurance.  First Central subsequently denied the claim, and defendant immediately proceeded with a breach of contract action. 

At approximately the same time, Beneficial instituted foreclosure proceedings in the instant lawsuit.  Defendant Mason appeared in this action, and asserted counter-claims in breach of contract, bad faith and a breach of implied covenant of good faith and fair dealing.

First Central then moved to dismiss plaintiff’s breach of contract claim in the insurance coverage action, and such motion was granted by the Trial Court.  In light of that motion, Beneficial then moved to dismiss defendant’s counter-claims in the foreclosure action on the basis of collateral estoppel.  Beneficial’s motion was likewise granted. 

Thereafter, defendant Mason appealed the Trial Court’s decision in the insurance coverage action, and obtained a reversal.  With Mason’s insurance coverage action reinstated, Mason then appealed Trial Court’s decision to grant Beneficial’s collateral estoppel motion. 

In refusing to overturn the collateral estoppel decision, the Third Department noted that the argument was not properly before it.  Rather, where, as here, as Order has been entered, Mason was directed to make a motion to vacate the Beneficial collateral estoppel motion under CPLR 5015(a).  If that motion is denied, presumably, Mason could then proceed with appellate review at that time.

Potpourri
05/08/12       DaimlerChrysler Ins. Co. v Jennemen
Appellate Division, Second Department
Criminal Conviction Creates Collateral Estoppel in Subsequent Coverage Action
Jennemen was operating a Jeep Grand Cherokee that was owned by non-party DCFS Trust when she struck a pedestrian.  DCFS Trust was insured by Chrysler. 
The wrongful death case was subsequently settled for $200,000, with Chrysler contributing $100,000 to that settlement.  At the same time, Ms. Jennemen was convicted of second degree manslaughter. 

Chrysler commenced the instant action against Jennemen seeking to recover the $100,000 it paid as part of the settlement.  When Jennemen appeared, and opposed Chrysler’s claim, Chrysler moved for summary judgment.  Chrysler’s motion was, in part, supported by a collateral estoppel claim based upon Ms. Jennemen’s criminal conviction. 

In affirming the Trial Court, the Appellate Division noted that collateral estoppel can apply where the “criminal conviction is based upon facts identical to those in issue in a related civil action.”  In addition, where Chrysler’s obligations were caused solely due to the actions of Jennemen, a common law indemnity obligation was created. 

Peiper’s Point We are surprised that Chrysler’s action was not barred by the anti-subrogation rule.  Perhaps the Chrysler policy had a “criminal acts” exclusion, thereby extinguishing insured status to Jennemen. 

05/01/12       In re. Sucheron
Appellate Division, Second Department
Appellate Division Adjusts Quantum Meruit Share on Attorneys’ Fees
The facts of this case are relatively straight-forward.  Mr. Sucheron was killed in a traffic accident in March of 2007.  Although the accident occurred in Connecticut,   Mr. Sucheron’s Estate retained the law firm of Cassisi & Cassisi to represent it in a tort action that was commenced Nassau County.  At some point during its representation, Cassisi negotiated at $150,000 settlement with the tortfeasor, and presented the same to the Estate for consideration.  The Estate decided to turn down the offer, and retained Saasto as new counsel to prosecute the claim.

Thereafter, the defendant/tortfeasor moved to dismiss the action on forum non conveniens grounds.  Saasto later re-commenced the action in Connecticut Superior Court, and obtained a $300,000 settlement which the Estate accepted. 

The final dispute to be resolved was the respective shares afforded to Saasto and Cassisi given their representation of the Estate with regard to this matter.  In hearing the evidence, the Nassau County Surrogates Court awarded Saasto 65% of the contingency fee (with Cassisi being awarded 35%). 

Upon appeal, the Appellate Division intervened and increased Saasto’s recovery of attorneys’ fees to 90%.  In supporting its decision, the Court noted that Saasto obtained a more favorable resolution, engaged in extended discovery, retained expert consultants and engaged in extended mediations in the Connecticut action.  Accordingly, the Appellate Division ruled that the Surrogate’s Court split of 65/35 was inequitable given the effort undertaken by Saasto.  This was despite the Court’s acknowledgement that the Surrogate’s Court has the “ultimate responsibility of deciding what constitutes reasonable legal compensation.” 

04/26/12       Grant v Nembhard
Appellate Division, Third Department
Question of Fact on Proximate Cause Against One Party Does Not Preclude Summary Judgment Against Other Defendants
The infant plaintiff in this case was a rear-seated passenger in a vehicle being operated by Reynolds.  While driving on I-87, Ms. Reynolds pulled off of the road onto the shoulder after she developed a headache and became drowsy.  Ms. Reynolds, although completely off of the road, did not enable her four-way flashers, nor otherwise attempt to advise other motorists that her car was positioned just off of a major interstate highway.  This was despite the fact that Ms. Reynolds stopped the car at approximately 4:00 am in the morning.
Unfortunately, Ms. Reynolds’ car was rear-ended by an automobile being operated by Nembhard.  The vehicle was owned by Mr. Nembhard’s mother, Tyner.  Plaintiff commenced the instant action against Nembhard, Tyner, Reynolds, and Nembhard’s employer (SEIU).  A flurry of motion practice took place in this case, and the following is the Appellate Division’s discuss of each motion.

Reynolds’ Motion for Summary Judgment -  Reynolds moved for summary judgment alleging that no-one could establish (a) she was negligent and (b) even if she was negligent it was not the proximate cause of the incident.  The Trial Court ruled that question of fact existed as to whether Ms. Reynolds decision to park the car along I-87 was negligent.  However, the Court granted Reynolds’ summary judgment on the basis that regardless of Reynolds’ negligence, the proximate cause of the incident was Nembhard’s collision with the parked Reynolds’ vehicle. 

In reversing the Trial Court, the Appellate Division noted that a question of fact existed as to the decision to park the car along I-87.  In addition, the Court found a question of fact as to proximate cause.  According to the Court, a jury could reasonably conclude that this accident would have been a foreseeable consequence of pulling of alongside an interstate without the use of flashers or flairs to alert oncoming motorists. 

Plaintiff’s Motion for Summary Judgment Against Nembhard -
The uncontroverted testimony is that Nembhard was extremely drowsy, and likely fell asleep prior to impact.  As it was rear-end collision, the Trial Court had no problems granting plaintiff’s motion.  In opposition, Nembhard argued that the finding of a question of fact on Reynolds’ negligence precludes a finding of summary judgment.  Essentially, Nembhard argued that where there could be two negligent parties summary judgment was inapplicable until causation could be determined. 

The Appellate Division disagreed, and stated that Nembhard’s liability to plaintiff is established regardless of the potential negligence of the other defendants.  Because there can be more than one proximate cause of the accident, summary judgment was appropriate.  Nembhard may be entitled to contribution from Reynolds if, in fact, Reynolds is found negligent (and such negligence was a proximate cause of the incident).  However, such a finding will not absolve Nembhard of his liability to plaintiff.  Accordingly, summary judgment was appropriate.

SEIU’s Motion for Summary Judgment Against Plaintiff – Nembhard’s employer, SEIU, was added as a party defendant after it was determined that at the time of the incident, Nembhard was traveling to his grandmother’s house directly after attending a barbeque.  Mr. Nembhard was at the barbeque seeking to enroll additional members in the SEIU, and thus his attendance was directly related his employment as a SEIU organizer.  The Trial Court, as did the Appellate Division, found a question of fact on this issue, and denied SEIU’s motion. 

04/20/12       Bermingham v Peter, Sr. & Mary L. Liberatore Family Ltd.
Appellate Division, Fourth Department
Who’s Got a Duty? Fourth Department Distinguishes Common Law Indemnity vs. Common Law Contribution in Premises Liability Cases
Herein, the Appellate Division offers an interesting distinction between common law indemnification and common law contribution that is not commonly seen.  The basic facts of the dispute involve a slip and fall incident which resulted in injury to the plaintiff.  Upon being named as a defendant, owner commenced a third-party action against its snow plow contractor, S&K Landscaping.  Because there was no contractual indemnity provision, owner’s claims against S&K were limited to common law indemnification/contribution. 

For some reason which we don’t quite understand, the third-party action was severed prior to trial. At the conclusion of the main-party trial (which resulted in 100% liability finding against the owner), S&K moved for summary judgment dismissing the third-party action.  The Trial Court, finding a question of fact, denied S&K’s motion in its entirety. 

With regard to owner’s common law contribution claim, the Court cited to the well-known Espinal standard when it ruled that S&K owed no duty to the plaintiff.  Accordingly, as S&K could not be liable to the plaintiff, there was no basis for a contribution claim.

However, defendant/owner smartly argued that the Espinal standard did not apply to a common law indemnity claim.  Under a common law indemnity analysis, the comparative fault of S&K is irrelevant.  Either (a) owner was purely vicariously liable due to the negligence of S&K or (b) defendant/owner bore some level of liability.  If there is a finding of 1% against defendant/owner, it follows the indemnity claim would fail.  In denying S&K’s motion, the Court effectively ruled that a question of fact existed as to whether defendant/owner was purely liable due to acts of another (ie., S&K was the only “active” tortfeasor)

Peiper’s Point – Hats off to owner’s counsel for creatively pointing out this important distinction to the Court.  Well done, Jim.

 

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

No Fault Fraud
No Fault fraud remains front and center in Albany.  On Tuesday, Senate Republicans held a press conference where they pointed out that they have passed legislation which purports to “crack down” on the runners or scam artists steering people towards fraudulent doctors or lawyers while that legislation continues to be held up in the Assembly. 

The Department of Financial Services is also concerned with No-Fault Insurance Fraud, and the following proposed changes to Regulation 68 are going to be published in the State Register on May 16, 2012 and followed by a forty-five (45) day public comment period:

65-3.5 amendment

This provision of Regulation 68 will be amended to include two new subdivisions, (o) and (p).  Subdivision (o) states that an applicant upon whom verification was requested must, within 120 days from the initial request, submit all the verification within their possession or control or provide written proof of a reasonable justification for the failure to comply.  The insurer must advise the applicant in the initial verification request that the insurer may deny the claim if the verification is not provided within 120 days unless written justification is provided.  This subdivision does not apply to a prescribed NF form, medical exam request or EUO request. 
Note:  Form Verification Requests would need this additional information.

Subdivision (p) contains a big change for insurers if the regulation is adopted.  This provision states that with regard to a verification request and notice, “an insurer’s non-substantive technical or immaterial defect or omission, as well as an insurer’s failure to comply with a prescribed time frame, shall not negate an applicant’s obligation to comply with the request or notice.”

65-3.8(b)(3) amendment

Previously this provision merely stated that an “insurer shall not issue a denial of claim form (NF-10) prior to receipt of verification.”  This was amended to allow an insurer to issue a denial when the verification request has not been complied with for more than 120 days after the initial request.

65-3.8 further amendments

Initially subdivisions (g) through (j) will be relettered to subdivisions (i) through (l) and there will be a new subdivision (g) and a new subdivision (h).

Subdivision (g) sets forth two situations where proof of the fact and amount of the loss will not be deemed supplied by an applicant to an insurer and payment will not be for the claimed services.  These two situations are:

  • When the claimed services were not provided to an injured party; or
  • For those claimed service fees that exceed the charges permissible under the schedules prepared and established pursuant to Ins. Law §5108(a) and (b).

 

Subdivision (h) would also lead to a big change in that an NF-10 will not be deemed invalid because of “an insurer’s non-substantive technical or immaterial defect or omission.”

 

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

05/08/12       Western World Ins. Co. v. Markel American Ins. Co.
Tenth Circuit Court of Appeals –Oklahoma law applied
Ambiguity in Policy Results in Coverage for the Insured
The problems began at the front door of the Bricktown Haunted House in Oklahoma City.  There Mr. Hodges was working in the twilight hours checking tickets as guests entered.  When the flashlight he used began flickering and then died, he ventured inside in search of a replacement.  To navigate through the haunted house he tried to use the light from his cell phone but one of the actors complained that the light dampened the otherworldly atmosphere, so Mr. Hodges turned it off and he stumbled along as best he could.  Mr. Hodges was trying to locate the freight elevator where the spare flashlights were stored.  When he reached the elevator, Mr. Hodges lifted the wooden gate across the entrance and stepped in.  Because of the darkness Mr. Hodges could not see that the elevator was on a floor above him and he fell 20 feet down an empty elevator shaft.

Mr. Hodges sued Brewer Entertainment [“Brewer”], the haunted house’s operator. Brewer had two policies in effect, one with Western World and one with Markel.  Western World acknowledged coverage and proceeded to defend Brewer and ultimately settled the case.  Markel, on the other hand, denied coverage.

Western World then brought suit against Markel seeking a declaration that Western World in entitled to half the cost of defending, and eventually settling, Mr. Hodges claim.  At summary judgment before the district court, Western World pointed out that Markel’s’ policy covers Brewer for its haunted house operation and the very sort of accident that occurred here.  In reply, Markel directed the court to an “escape clause” that, Markel argued, allowed it to elude the liability that would otherwise arise from the terms of its policy.  The district court agreed with Markel; and, for the following reasons the Tenth Circuit [“Court”] reversed. 

The Court noted that if the clause is viewed in isolation it does seem to suggest that no coverage existed under the Markel policy.  The clause, standing alone, provides that “this insurance shall not apply to any entity that is already an insured under any other insurance provided by any company.”  However, although the clause appears to support Markel’s argument in isolation, the Court found that Markel’s argument faced serious problems when viewed in context. The Court noted that the escape clause did not appear in Markel’s general commercial liability policy.  Instead, the clause was added by later endorsement.  After analyzing the endorsement the Court stated that the escape clause appears only in Paragraph 2 (Brewer was insured under Paragraph 1) of the endorsement which modifies Who Is An Insured, and can be read as applying only to entities listed in that paragraph (your volunteer workers; any person or organization acting as your real estate manager; any person or organization having proper temporary custody of your property if you die; your legal representative if you die; and, any legally incorporated entity of which you own at least 51% of the voting stock on the inception dates of this Coverage Form, and on the date of any covered “occurrence”, claim or ‘suit’). 

The Court determined that there were at least three ways the “escape clause” could be applied:  (1) to both paragraph 1 and paragraph 2 of Who Is An Insured; (2) only to paragraph 2; and, (3) only to paragraph 2(e) – any legally incorporated entity for which Brewer owned 51%.  Essentially, the Court concluded that the policy was ambiguous.

In reviewing the rest of the Markel policy the Court also addressed the “Other insurance” provision in Section IV of the policy which states that Markel’s’ insurance provides “primary” coverage.  Further providing that if another insurance policy is also “primary” (as was the case with Western World’s), the two carriers will share the cost of coverage according to a specified formula – either in equal shares or pro rate based on the policy limits, all depending on the contents of the other policy.

The Court noted that the “Other insurance” provision of Markel’s policy posed a problem for Markel’ interpretation of its “escape clause” because Markel’s reading of the “escape clause” renders its own “Other Insurance” provision superfluous in violation of well settled law in Oklahoma that “the whole of a contract is to be taken so as to give effect to every party, if reasonably practicable”.

In conclusion, the Court held that even in the best light the applicability of the escape clause to an entity, like Brewer, insured under Paragraph 1 of Who Is An Insured, is far from clear.  Under the circumstances, Oklahoma contract law states that a tie must go to the insured.  If, as here, the relevant limiting policy provisions are “unclear or obscure”, then the objectively reasonable expectations of a person, in the position of the insured, control. Put differently, the Court stated, “when a policy’s escape hatch is less a clearly marked exit than it is a hidden trap door, the reasonable expectations of the insured who has read and become familiar with the policy language supplies the rule of decision.” 

The district court’s order was reversed and the case was remanded for further proceedings.

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

05/04/12       Matter of Geico Gen. Ins. Co. v. Schwartz
Supreme Court, Kings County
Where Insurer Fails to Timely Move for a Stay of SUM Arbitration, Court Refuses to Stay Arbitration Even Where Tortfeasor’s Insurance Policy Has Not Yet Been Exhausted
Geico brought this matter by order to show cause seeking a permanent stay of the demanded SUM arbitration on the ground that the limits of liability of all bodily injury bonds or insurance policies applicable at the time of the accident had not been exhausted.  In other words, the respondents had not resolved or settled their claims with the underlying tortfeasor.  In opposition, respondents argued that Geico failed to move for a stay of arbitration within 20 days; thus, it was precluded from objecting to the arbitration. 

The court began by noting that while an insurer which fails to seek a stay of arbitration within 20 days after being served with notice of intention or demand to arbitrate is generally precluded from objecting to the arbitration, there is a limited exception to the rule.  Specifically, the Court of Appeals has held that an otherwise untimely petition to stay arbitration can be entertained when its basis is that the parties never agreed to arbitrate, as distinct from situations in which there is an agreement which is nevertheless claimed to be invalid or unenforceable because its conditions have not been complied with. 

Ultimately, the court held that this exception did not apply as the dispute went to the conditions of the contract, not whether the parties had agreed to arbitrate.  With that said, it was noted by the court that while Insurance Law 3420(f)(2)(a) precludes Geico from making payments under the policy’s SUM coverage prior to exhaustion, it does not preclude the arbitration of the claims.  Thus, there was nothing to prevent the arbitration from going forward.  In the event of an award in favor of respondents, Geico’s obligation to pay the SUM claim would be stayed until such time as the tortfeasor’s policy was exhausted. 

The court also denied the request for pre-arbitration discovery as this relief would effectively constitute a stay of arbitration, which it failed to move for in time.  The court noted that this issue could be raised at the arbitration.   

04/24/12       Tower Ins. Co. of NY v. Metro Prop. Group, LLC
Supreme Court, New York County
Court Refuses to Consider Any Evidence of the Insured’s Late Notice Not Cited in Disclaimer Letter
This decision arises out of a lead-based paint exposure claim.  The underlying action was brought by the parent and natural guardian of Baboucarr Camara (“Baboucarr”) and Maimuna Camara (“Maimuna”).  It was alleged that Baboucarr (on or about August 11, 2002) and Maimuna (on or about October 1, 1996) were exposed to lead-based paint while residing at 2710 Valentine Ave.  Up until 2005, the property was owned by Bruce Wittenberg and managed by Rex Management Corp.  Thereafter, it was purchased by another entity and managed by Metro Property. 

Plaintiff issued a CGL policy to the Metro Property.  While plaintiff’s policy included coverage for lead-based exposure, the coverage was limited to that occurring during the policy period.  Also, the policy required that plaintiff be notified of any lead occurrence as soon as practicable.  Following receipt of the notice from Metro Property about the lawsuit, it denied based on late notice.  The denial stated that “our investigation reveals you were aware of the claimed injuries or damages in or about August 2007.”  It went on to state that “you breached the policy conditions…by failing to notify us of the incident(s) and by failing to forward the notices of violation you received from the Department of Health in August 2007 immediately.”

In considering plaintiff’s motion, the court began by considering the evidence submitted.  It appears that plaintiff entirely relied on a statement from Metro Property’s resident superintendent who attested that the he was told the Camaras were going to make a claim against Metro Property and that he told Metro Property this information the following day.  The court determined that an insurer’s justification for denying coverage is limited to the grounds set forth in the notice of disclaimer, which must be stated with a high degree of specificity.  Here, as the disclaimer did not reference this statement, plaintiff was not permitted to rely on it now. 

The court further held that even if the statement was admissible, the insured submitted another affidavit from Metro Property’s superintendent that further stated that he believed that there would be no claim against Metro Property, but, rather, the claim would be against the prior owners. 

Take Away:   This decision should make insurers nervous.  It is essentially saying that, on a motion for summary judgment, a carrier can only rely on the facts and reasoning cited in its disclaimer.  How often does an insurer set forth all of its evidence, in detail, in support its disclaimer?

04/24/12       Total Fitness & Karate Center, Inc. v. Zurich North America
Supreme Court, Queens County
Claim of Insured Dismissed Where It Was Not Represented by Counsel; Claim of Injured Party Also Dismissed Where It Did Not Have a Judgment
This is an odd decision.  Apparently, the underlying plaintiff was injured while on property owned by Total Fitness.  The complaint alleged that the injury occurred as a result of the negligence of Total Fitness and two of its employees.  At the time of the accident, Total Fitness was insured under a policy issued by Zurich.  However, after the Zurich policy expired, Total Fitness was then insured by Philadelphia Indemnity. 

When Zurich and Philadelphia Indemnity denied coverage for the claim, this action was brought in the name of Total Fitness, the two employees and the injured party.  Apparently, Philadelphia Indemnity moved to dismiss all claims against it.  With regard to the claim of Total Fitness, the court granted the motion to dismiss because Total Fitness was not being represented by counsel.  Per CPLR 321, a corporation or voluntary association is required to appear by attorney.  The court agreed that Total Fitness’ counsel had withdrawn and no new counsel was appointed within the require time; thus, the motion was granted.  

Next, the court considered the claim of the injured party.  In New York, an injured party is only permitted to bring an action seeking a declaration that the at-fault party’s insurance company is obligated to defend and indemnify its insured after the injured party has obtained a judgment against the at-fault insured, and it has gone unpaid for 30 days.  Here, there was no dispute that the injured party did not have a judgment.  Thus, the court granted this section of Philadelphia Indemnity’s motion.

Lastly, the court considered the claim of the two employees.  Philadelphia Indemnity argued that there was no privity of contract with the employees; thus, their claim should be dismissed.  The court determined that Philadelphia Indemnity failed to meet its prima facie case.  Per Philadelphia Indemnity’s own defense, these claims did not out of the issuance of its policy as it did not have one in effect at the time of the loss.  Accordingly, only the claims of the two employees were left intact. 

EARL’S PEARLS
Earl K. Cantwell

[email protected]

$7 MILLION BAD FAITH AWARD ON BUILDER’S RISK POLICY REVERSED

          An appeals court in Wisconsin recently overturned a jury verdict awarding a developer some $7 Million for an insurer’s failure to pay alleged lost income after a fire at a condominium complex.  Park Terrace LLC v. Transportation Insurance Co., 2011 WL 5984717 (Wis. Ct. App. December 1, 2011). 

          Park Terrace had a builder’s risk policy with Transportation Insurance for a condominium development being constructed on the Milwaukee River.  During construction, a fire occurred and Park Terrace sought coverage under the Transportation policy.  The insurance company paid reconstruction costs and some other costs but denied a claim for lost income.  The developer then sued for breach of contract, contract reformation, and bad faith.

The trial court “reformed” the policy to include lost income coverage and a jury awarded the developer $370,000 in contract damages, $3 Million in bad faith damages, $4 Million in punitive damages, and $1 Million for attorneys’ fees because of the insurer’s alleged bad faith.  Quite naturally, Transportation appealed the verdict.  The Court of Appeals upheld the $370,000 contract award, but struck down the other damages components for bad faith, etc.

          The appeals court reasoned that the developer was not entitled to $3 Million in bad faith damages because it failed to establish that the insurance company’s acts, as opposed to the fire itself, caused the damages.  The court said that the developer pointed to evidence showing that losses flowed from the fire itself, not from Transportation’s failure to pay Park Terrace for lost income.  Finding no bad faith, the appeals court also reversed the awards for punitive damages and attorneys’ fees.

          In short, the appeals court found no evidence that the insurer’s failure to pay some $370,000 for lost income caused Park Terrace to incur any new or additional losses.  Construction delays cited by the developer that led to financial losses were caused by the fire, not the insurer’s failure to pay. 

          The lessons from Park Terrace are these:

  • If an insurance company gets whacked for $7 Million on a bad faith award, an appeal is a certainty and there is a good chance some, or all of the claim, will be set aside or reversed on appeal.
  • Even in bad faith litigation, it must be carefully considered whether and to what extent the insurance company’s alleged failure to pay or late payment caused any loss independent of the occurrence itself. 

 

In Park Terrace, the appeals court said that the insurer’s failure to pay $370,000 in lost income did not cause the developer to sustain any new or additional losses as opposed to problems, delays, and other issues that were really the result of the fire occurrence.  Issues with respect to causation and the amount of damages can and should be front and center as items contested on the law and facts in bad faith litigation.

 

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

05/02/12       Grief v. AMISUB of South Carolina, Inc.
South Carolina Supreme Court
An Expert Affidavit in a Medical Malpractice Case Does Not Have to Contain an Opinion as to Proximate Cause

Section 15-79-125(A) of the South Carolina Code of Law provides, "Prior to filing or initiating a civil action alleging injury or death as a result of medical malpractice, the plaintiff shall contemporaneously file a Notice of Intent to File Suit and an affidavit of an expert witness, subject to the affidavit requirements established in Section 15-36-100." The statute then gives specific guidance as to the requirements for the notice document but it provides no specifics for the expert affidavit. For that, the statute directs the reader to section 15-36-100. This section in turn states the plaintiff has to submit "an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim based on the available evidence at the time of the filing of the affidavit." Interpreting these provisions the Court held that the affidavit is not required to address the issue of proximate cause.
Submitted by: Matthew G. Gerrald and Kay Gaffney Crowe, Barnes, Alford, Stork & Johnson, Columbia SC

Reported Decisions

Lue v. Finlekstein & Partners, LLP

Calendar Date: March 20, 2012
Before: Mercure, J.P., Lahtinen, Spain, McCarthy and Garry, JJ.

Finkelstein & Partners, LLP, Newburgh (James W. Shuttleworth of counsel), for appellants.
LaFave, Wein & Frament, P.L.L.C., Guilderland (Paul H. Wein of counsel), for respondent.

MEMORANDUM AND ORDER

Lahtinen, J.

Appeal from an order of the Supreme Court (Catena, J.), entered March 31, 2011 in Montgomery County, which, among other things, granted plaintiff's motion for partial summary judgment.

In January 2002, plaintiff, while working for O'Connell Electric, fell from a scissor lift at a construction work site owned by K-Mart Corporation. Defendants failed to preserve plaintiff's Labor Law § 240 claim during K-Mart's chapter 11 bankruptcy, resulting in the claim being reduced to zero dollars by the Bankruptcy Court in 2004. Plaintiff, represented by new counsel, subsequently commenced an action against various defendants, but his claim against K-Mart was dismissed by Supreme Court (Cannizzaro, J.) based upon the Bankruptcy Court's order. No appeal was pursued from such dismissal.

Plaintiff eventually settled his claim against another defendant — United Rentals, Inc., the supplier of the scissor lift — for $235,000. He then brought this legal malpractice action, which was previously before us regarding a discovery dispute (67 AD3d 1187 [2009]), asserting that he would have had a larger recovery if his Labor Law § 240 strict liability claim against K-Mart had been preserved by defendants. Plaintiff moved for partial summary judgment on the issue of liability, and defendants cross-moved for summary judgment dismissing the complaint upon the ground that plaintiff could not prove that defendants' alleged malpractice caused him any damages beyond what he had recovered from United Rentals. Supreme Court granted plaintiff's motion and denied defendants' cross motion. Defendants appeal, arguing that since plaintiff cannot recover any damages other than those that he has already received, his motion for partial summary judgment should have been denied and their cross motion for summary judgment should have been granted.

We find that factual issues exist in this record precluding summary judgment to either party. In a legal malpractice action, "a plaintiff must demonstrate that the attorney 'failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession' and that the attorney's breach of this duty proximately caused [the] plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301 [2002]). Defendants argue that, even if they had preserved a claim against K-Mart, funds would not have been available to collect on a favorable Labor Law § 240 cause of action because K-Mart was self-insured and the record does not establish that K-Mart was named as an additional insured on O'Connell Electric's policy with its insurer, Interstate Insurance Group. Plaintiff counters by contending that O'Connell Electric had agreed in a written contract to indemnify K-Mart as well as name K-Mart as an additional insured, and that an avenue to O'Connell Electric's insurer was provided by Insurance Law § 3420 and the 1978 Bankruptcy Code (see 11 USC § 524 [a], [e]).

The contract between O'Connell Electric and K-Mart had an indemnification clause [FN1] and also a clause requiring that O'Connell Electric include K-Mart as an additional insured. It is the general rule that there is no right to indemnification if the indemnitee does not sustain an actual loss (see Lang v Hanover Ins. Co., 3 NY3d 350, 354 [2004]; Jackson v Citizens Cas. Co., 277 NY 385, 389 [1938]; Bank of India v Trendi Sportswear, Inc., 2002 US Dist LEXIS 894, *10-14, 2002 WL 84631, *4-5 [SD NY 2002], affd 64 Fed Appx 827 [2d Cir 2003], cert denied 540 US 1074 [2003]). This rule had the effect of protecting an insurer from having to pay an injured party when its insured was insolvent or bankrupt. Thus, the Legislature long ago carved out an exception to the rule and "remedied this inequity by creating a limited statutory cause of action on behalf of injured parties directly against insurers" (Lang v Hanover Ins. Co., 3 NY3d at 354; see Coleman v New Amsterdam Cas. Co., 247 NY 271, 275 [1928]). This exception is authorized by the Bankruptcy Code (see 11 USC § 524 [a], [e]), and a personal injury plaintiff may pursue an action against a bankrupt defendant for the purpose of obtaining a judgment to be enforced against that defendant's insurer (see Lang v Hanover Ins. Co., 3 NY3d at 354-355; Green v Welsh, 956 F2d 30, 35 [2d Cir 1992]; Collier On Bankruptcy P 524.05 [16th ed]). Since it is well settled that an additional insured has the same protection as a named insured (see Kassis v Ohio Cas. Ins. Co., 12 NY3d 595, 599-600 [2009]; Pecker Iron Works of N.Y. v Traveler's Ins. Co., 99 NY2d 391, 393 [2003]), it follows that an Insurance Law § 3420 cause of action could be brought against the insurer of an additional insured.

Here, the contract required O'Connell Electric to name K-Mart as an additional insured. However, as defendants point out, there is no proof in the record that this was actually done. Establishing that a party is an additional insured is not generally difficult (see Kassis v Ohio Cas. Ins. Co., 12 NY3d at 599-600). But, the policy is not in the record and there is not even a sworn statement from a person with actual knowledge indicating such coverage was in place [FN2] . Under such circumstances, plaintiff has failed to establish as a matter of law that a potential claim existed under Insurance Law § 3420 against Interstate Insurance Group.

Nor does this record support the conclusion that the contractual indemnification claim was established as a matter of law as a way that plaintiff could have reached the funds of Interstate Insurance Group. Without addressing potential legal hurdles of such a reach (see generally Lang v Hanover Ins. Co., 3 NY3d at 353; Watson v Newell Indus., Inc., 67 AD3d 780, 781 [2009]; Matter of Lee v Maltais, 250 AD2d 951, 952-953 [1998], lv denied 92 NY2d 809 [1998]), we need only note that a contractual indemnification clause is not enforceable where there is active negligence by the indemnitee (see McKeighan v Vassar Coll., 53 AD3d 831, 833-834 [2008]). The record does not establish as a matter of law the role (if any) of K-Mart (the indemnitee) at the construction site or whether K-Mart was free from negligence.

Finally, we find unpersuasive defendants' assertion that plaintiff's strict liability claim under Labor Law § 240 would not have had potential additional value in the underlying litigation. Further, plaintiff submitted evidence which, when viewed most favorable to him, indicated that his injuries potentially had value beyond the amount for which he settled.

Mercure, J.P., Spain, McCarthy and Garry, JJ., concur.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as granted plaintiff's motion for partial summary judgment on the issue of liability; said motion denied; and, as so modified, affirmed.

Footnotes

Footnote 1: Plaintiff did not suffer a grave injury and, thus, common-law indemnification would not have been available to K-Mart against O'Connell Electric, plaintiff's employer (see Workers' Compensation Law § 11; Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 367 [2005]).

Footnote 2: It is not unheard of for contractors to fail to obtain such coverage despite agreeing to do so (see e.g. Kinney v Lisk Co., 76 NY2d 215 [1990]).

Total Concept Carpentry, Inc. v. Tower Ins. Co.

Max W. Gershweir, New York, for appellant.
Kushnick Pallaci, PLLC, Melville (Vincent T. Pallaci of counsel), for respondent.

Order, Supreme Court, New York County (Lucy Billings, J.), entered May 6, 2011, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment to the extent of declaring that defendant breached its contractual obligation to defend and indemnify additional insured Avalon Bay Communities, Inc. (Avalon) in an underlying personal injury action and that defendant is liable to plaintiff for damages for breach of that contract, and denied defendant's cross motion for summary judgment declaring that it was not obligated to defend or indemnify plaintiff in connection with the underlying action, unanimously reversed, on the law, without costs, plaintiff's motion denied, defendant's cross motion granted and it is so declared.

Based on the four corners of the insurance agreement (see e.g. Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, 33 [1979], affd 49 NY2d 924 [1980]), defendant had no duty to defend or indemnify because it established that there was "no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision" (Allstate Ins. Co. v Zuk, 78 NY2d 41, 45 [1991]; see Town of Massena v Healthcare Underwriters Mut. Ins. Co., 98 NY2d 435, 445 [2002]). The record shows that defendant properly disclaimed coverage to plaintiff contractor based on the Employer's Liability exclusion in the policy. This provision excludes coverage for bodily injury to an employee of the insured (plaintiff) arising out of and in the course of his or her employment or performance. Although this particular exclusion does not apply to liability the insured assumed under an "insured contract," the Contractual Liability Limitation endorsement deletes any reference in the definition of "insured contract" to a "contract or agreement pertaining to your business . . . under which you assume the tort liability of another party to pay for bodily injury' or property damage' to a third person or organization."

Moreover, Tower's disclaimer to Avalon relied on the Additional Insured endorsement that states: "[t]his insurance does not apply to acts or omissions of the Additional Insured nor liability imposed on the additional insured by statute, ordinance or law." In the underlying lawsuit, the court dismissed all claims against Avalon except for those based on Labor Law §§ 240(1) and 241(6). Even though Avalon could be found actively negligent under Labor Law § [*2]241(6), the endorsement excludes coverage for Avalon's acts or omissions.
In view of the foregoing and because of defendant's disclaimer of coverage to Avalon based on the Additional Insured endorsement, we decline to address defendant's contention that plaintiff had no standing to contest the propriety of its disclaimer to Avalon.

Kalthoff v. Arrowood Indem. Co.


Calendar Date: March 19, 2012
Before: Peters, P.J., Malone Jr., Kavanagh, Stein and Egan Jr., JJ.

Rivkin Radler, L.L.P., Uniondale (Harris J. Zakarin of counsel), for appellant.
Finkelstein & Partners, L.L.P., Newburgh (George A. Kohl II of counsel), for respondents.

MEMORANDUM AND ORDER

Malone Jr., J.
Appeal from an order of the Supreme Court (Cahill, J.), entered February 24, 2011 in Sullivan County, which, among other things, granted plaintiffs' cross motion for summary judgment declaring that defendant Arrowood Indemnity Company is obligated to indemnify plaintiffs on behalf of its insured.

In July 1999, plaintiff Debra Ann Kathloff allegedly sustained personal injuries when she slipped and fell on premises leased by defendant Casual Male, Inc. (hereinafter the insured). At the time of the accident, the insured maintained a policy of liability insurance issued by defendant Arrowood Indemnity Company (hereinafter defendant)[FN1]. Notwithstanding its awareness of the accident, the insured failed to notify defendant. In 2001, plaintiff and her husband, derivatively, commenced a personal injury action against the insured and, shortly thereafter, the insured entered bankruptcy proceedings, thereby causing plaintiffs' action to be stayed. In May 2004, a stipulation was entered that allowed plaintiffs to proceed against the insured's liability insurance proceeds. In October 2004, plaintiffs sent a letter to defendant notifying it of the incident and their claims, and defendant disclaimed coverage on the ground that it had not been provided with prompt notice of both the incident and the action.

Plaintiffs ultimately obtained a default judgment against the insured and, following an inquest, they were awarded nearly $812,000 in June 2008. After plaintiffs demanded that defendant pay on the judgment and defendant refused, they commenced the instant declaratory judgment action, seeking to compel payment of the default judgment pursuant to Insurance Law § 3420 (a) (2). Following joinder of issue, defendant moved for summary judgment dismissing the complaint, arguing that neither the insured nor plaintiffs provided it with prompt notice of the accident and that it had properly disclaimed coverage as a result. Plaintiffs opposed the motion and cross-moved for summary judgment, arguing that defendant's disclaimer of coverage was not effective against them. Finding that defendant's disclaimer was not sufficiently specific to be effective against plaintiffs, Supreme Court granted plaintiffs' cross motion for summary judgment. Defendant appeals.

"[A]n insurer has the right to demand that it be notified of any loss or accident that is covered under the terms of the insurance policy" (American Tr. Ins. Co. v Sartor, 3 NY3d 71, 75 [2004]). Here, defendant's obligation to provide coverage for plaintiffs' claims was expressly conditioned upon its receipt of timely notice of any incident or occurrence, as well as any legal action against the insured. While there is no dispute that the insured wholly failed to provide any notice to defendant, such failure does not sever plaintiffs' right to make a claim against defendant, because Insurance Law § 3420 (a) (3) requires insurance companies to accept notice from an injured party (see id. at 75; General Acc. Ins. Group v Cirucci, 46 NY2d 862, 863 [1979]). In such situations, the injured party bears the burden of demonstrating that it made reasonable efforts to identify the insurer and provide it with prompt notice. The reasonableness of these efforts is "'measured by the diligence exercised by the injured party in light of the prospects afforded to him [or her] under the circumstances'" (Nationwide Mut. Fire Ins. Co. v Maitland, 79 AD3d 1348, 1351 [2010], quoting Jenkins v Burgos, 99 AD2d 217, 221 [1984]). "Absent a showing of legal justification, the failure to comply with the notice condition vitiates coverage" as to the insured and as to a party damaged by the acts of the insured (Seneca Ins. Co. v W.S. Dist., Inc., 40 AD3d 1068, 1069 [2007]; see Jenkins v Burgos, 99 AD2d at 219).

In support of its motion, defendant presented evidence that, even though plaintiffs became aware in February 2003 that the insured had an applicable general liability insurance policy and, as of September 2003, that defendant was the entity that had issued such, plaintiffs did not provide notice to defendant until October 2004. As Supreme Court found, the burden thus shifted to plaintiffs to demonstrate that an issue of fact existed as to whether the delay was reasonable (see Seneca Ins. Co. v W.S. Dist., Inc., 40 AD3d at 1070). In that regard, plaintiffs attribute the delay to the "unusually complicated facts and circumstances of this case" and a mistaken belief of their counsel that they were prevented from prosecuting the action against defendant due to the insured's bankruptcy. However, it is well settled that an insured's bankruptcy does not limit or diminish an insurer's liability exposure to personal injury claims such as plaintiffs' (see Insurance Law § 3420 [a] [1]). While "[t]he reasonableness of any delay and the sufficiency of the excuse offered ordinarily present questions of fact to be resolved at trial" (Allstate Ins. Co. v Marcone, 29 AD3d 715, 717 [2006], appeal dismissed 7 NY3d 841 [2006]), here we find that plaintiffs' professed confusion regarding the applicable law to be insufficient as a matter of law to constitute a reasonable excuse for their delay in notifying defendant of the accident and their claims [FN2]. Under the circumstances presented here, it cannot be said that plaintiffs' efforts to provide timely notice to defendant were reasonable.

Further, we disagree with Supreme Court that defendant's disclaimer letter fails to apprise plaintiffs that defendant considered their notice to be untimely. Read as a whole, it is evident that defendant disclaimed coverage due to the fact that it considered the notice provided by plaintiffs — which defendant specifically noted was provided 38 months after the personal injury action was commenced — to be untimely and because the insured failed to provide it with any notice at all. Because defendant sent the disclaimer to the insured and sent a copy to plaintiffs, the disclaimer was effective against plaintiffs (see QBE Ins. Corp. v D. Gangi Contracting Corp., 66 AD3d 593, 594 [2009]; Schlott v Transcontinental Ins. Co., Inc., 41 AD3d 339, 340 [2007], lv denied 9 NY3d 817 [2008]).

Peters, P.J., Kavanagh, Stein and Egan Jr., JJ., concur.

ORDERED that the order is reversed, on the law, with costs, plaintiffs' cross motion denied, motion by defendant Arrowood Indemnity Company granted, summary judgment awarded to said defendant and complaint dismissed against it.
Footnotes

Footnote 1:Apparently, Casual Male, Inc. was formerly known as J. Baker, Inc. and Arrowood Indemnity Company was formerly known as Royal & SunAlliance Insurance Company.

Footnote 2:Even assuming that we were to accept plaintiffs' excuse of confusion regarding the bankruptcy proceeding, the stipulation expressly authorizing plaintiffs to proceed on their personal injury action against the insured's insurance proceeds was entered into in May 2004, and plaintiffs proffer no explanation — other than continued confusion on the part of their attorney — for why they waited five more months before putting defendant on notice of the accident and their claims.

In the Matter of GEICO v. Morris


Mallilo & Grossman, Flushing, N.Y. (Jessica Kronrad of counsel), for appellant.
Gail S. Lauzon (Montfort, Healy, McGuire & Salley, Garden City, N.Y. [Donald S. Neumann, Jr.], of counsel), for petitioner-respondent.

DECISION & ORDER
In a proceeding, inter alia, pursuant to CPLR article 75 to permanently stay arbitration of an underinsured motorist claim, Gertrude Morris appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Rios, J.), dated March 29, 2011, as, after a hearing, granted that branch of the petition which was to permanently stay arbitration.

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

In 2007, Gertrude Morris (hereinafter the appellant) was a passenger in a car insured by Government Employees Insurance Company (hereinafter GEICO) when that car was involved in an accident with a vehicle owned and driven by C.L. Patterson-Artis, and insured by Esurance Insurance Company (hereinafter Esurance). As a result of the accident, the appellant allegedly was injured and sought to recover damages from Artis. Eventually, Esurance agreed to pay the limit of the Artis vehicle policy in satisfaction of the appellant's claim against its insured. On November 3, 2009, the appellant's counsel allegedly sent a letter to GEICO requesting GEICO's consent to the settlement with Esurance. It is undisputed that under the terms of the GEICO policy, a written request for such consent was, in effect, a condition precedent to an application for underinsurance benefits thereunder; and that the policy permits settlement with a third-party tortfeasor as long as 30 days have elapsed after "actual written notice" to GEICO. It is also undisputed that GEICO never sent written notice of consent to settle to the appellant's counsel. Nevertheless, a release and stipulation of discontinuance was sent by the appellant to Esurance in February 2010.

In July 2010 the appellant sought arbitration of her claim for underinsured motorist benefits under the GEICO policy. GEICO filed a petition, inter alia, to permanently stay arbitration of the claim, alleging that it never received any written request from the appellant seeking its consent to settle with Esurance prior to effecting such settlement and, thus, the appellant breached the terms of the GEICO policy. The appellant opposed the petition by an affirmation from her counsel, who stated that he had sent the November 3, 2009, letter to GEICO seeking its permission to settle with Esurance, and that he was twice orally assured by a GEICO employee that such written consent would be sent. In response to the petition, the Supreme Court directed that a framed-issue hearing be held. At the conclusion of the hearing, the Supreme Court found that the appellant had never sought GEICO's written consent to settle with Esurance.

In the order appealed from, the Supreme Court, among other things, granted that branch of GEICO's petition which was to permanently stay arbitration.
"As a general rule of evidence, proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee" (Matter of Rodriguez v Wing, 251 AD2d 335, 336 [internal quotation marks omitted]).

Here, the appellant adduced evidence at the hearing that gave rise to a rebuttable presumption that the November 3, 2009, letter was duly received by GEICO (see Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229). However, GEICO rebutted this presumption by presenting evidence demonstrating its "regular practices and procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims" (Liriano v Eveready Ins. Co., 65 AD3d 524, 525; see Electronic Servs. Intl. v Silvers, 233 AD2d 361). In addition, to the extent that the conclusion of the Supreme Court was based upon credibility determinations, such determinations are entitled to deference on appeal (see Matter of Allstate Ins. Co. v Albino, 16 AD3d 682, 683; Contarino v North Shore Univ. Hosp. at Glen Cove, 13 AD3d 571).

Accordingly, under the circumstances of this case, the Supreme Court properly determined that the appellant failed to submit a written request to GEICO seeking its permission to settle with Esurance prior to effecting the settlement. Since this was a violation of the terms of the GEICO policy governing underinsured benefits, the Supreme Court properly granted that branch of the petition which was to permanently stay arbitration (see Matter of New York Cent. Mut. Fire Ins. Co. v Ward, 38 AD3d 898).

Vaughan v. Leon


Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Steven N. Feinman of counsel), for appellants.
Edelman, Krasin & Jaye, PLLC, Carle Place (Jarad Lewis Siegel of counsel), for respondent.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered August 6, 2010, which denied defendants' motion for summary judgment dismissing the complaint, modified, on the law, to dismiss the 90/180-day category of plaintiff's Insurance Law § 5102(d) claim, and otherwise affirmed, without costs.

In this action for personal injuries plaintiff alleges that she sustained a serious injury as a result of a car accident that occurred on June 30, 2007 at the intersection of East 223rd Street and White Plains Road, in the Bronx. Defendant Leon, a taxi driver, testified at his deposition that he was traveling northbound on White Plains road at approximately 20 miles per hour when he reached the intersection of East 223rd. At that point, a truck was to defendant driver's left on East 223rd and was obscuring his view of that street. Plaintiff testified at her deposition that she was stopped at the stop sign on East 223rd before proceeding to inch her way into the intersection. She was traveling at a speed of approximately 5 to 10 miles per hour when her car collided with defendant's car. The following day plaintiff went to the emergency room at Jacobi Hospital complaining of back and right shoulder pain. She was examined and released that day. Approximately a week later, on July 9, 2007, plaintiff was examined by Dr. Gautam Khakhar and continued to see him for five months following the accident, during which time she underwent physical therapy for her back, neck, and right shoulder.

Plaintiff commenced this action alleging that she sustained a serious injury under Insurance Law § 5102(d). Defendants subsequently moved for summary judgment dismissing the complaint on the grounds that plaintiff was negligent as a matter of law because she failed to yield the right of way at the intersection; and on the grounds that plaintiff failed to establish that she sustained a serious injury. The motion court denied defendants' motion in its entirety.

Notwithstanding that plaintiff's approach into the intersection was regulated by a stop sign and defendant driver's approach was not regulated by a traffic control device, issues of fact about plaintiff stopping at the stop sign and which vehicle entered the intersection first preclude a finding as a matter of law that plaintiff's conduct was the sole proximate cause of the accident (see Rivera v Berrios Trans Serv. Inc., 64 AD3d 416 [2009]). Further, plaintiff's testimony that she was traveling between 5 and 10 miles per hour and that the impact of the two vehicles was "very heavy" presents issues of fact whether defendant driver was negligent (Nevarez v S.R.M. Mgt. Corp., 58 AD3d 295, 299 [2008]).

Although defendants established prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), plaintiff raised sufficient issues of fact to warrant denial of summary judgment. On review of plaintiff's MRI films, defendants' radiologist noted that there were disc bulges that were "chronic and degenerative in origin" and that there was "no evidence of acute traumatic injury to the lumbar spine such as vertebral fracture, asymmetry of the disc spaces, ligamentous tear or epidural hematoma." These findings establish prima facie that any injury to plaintiff's lumbar spine was not causally related to the accident (see Depena v Sylla, 63 AD3d 504 [2009], lv denied 13 NY3d 706 [2009]). The burden then shifted to plaintiff to raise a triable issue of fact.

In opposition to defendants' motion, plaintiff submitted the affirmation of her treating physician, Dr. Khakhar, who first saw her nine days after the accident. He concluded that plaintiff's injuries were caused by the accident. Dr. Khakhar based this conclusion on the MRI report of the lumbrosacral spine and right shoulder taken on July 16, 2007,[FN1] electrodiagnostic testing, the patient's medical records, and objective clinical examinations of plaintiff, which revealed a painful and limited range of motion when compared to normal ranges, that began a week after the accident and continued for a period of approximately five months thereafter. This submission, which was based on objective findings by the doctor, as well as plaintiff's subjective complaints, was sufficient to substantiate a claim of serious injury (Yuen v Arka Memory Cab Corp., 80 AD3d 481 [2011]).

Although the dissent makes much of plaintiff's failure to annex the MRI reports, Dr. Khakhar affirmed that he reviewed them, and then made his own clinical findings based on the history provided by plaintiff and his education, training and experience (Baez v Boyd, 90 AD3d 524 [2011] [plaintiff raised an issue of fact by submitting the affirmed report of his treating orthopedist, who had reviewed the MRI films]). Moreover, although Dr. Khakhar did not explain what was in the MRI report or whether the MRI report he reviewed was affirmed, Dr. Khakhar's report itself was affirmed and is sufficient to raise an issue of fact. The dissent cites no cases in support of its argument that plaintiff's doctor must describe the specific contents of the MRI report for plaintiff to defeat a summary judgment motion.

Furthermore, although Dr. Khakhar did not expressly reject defendants' expert's conclusion that the injuries were degenerative in origin, by attributing the injuries to a different, yet equally plausible cause, plaintiff raised a triable issue of fact (see Yuen, 80 AD3d at 482; Linton v Nawaz, 62 AD3d 434, 439-440 [2009], affd on other grounds 14 NY3d 821 [2010]). Although "[a] factfinder could of course reject this opinion" (Perl v Meher, 18 NY3d 208, 219 [2011]), we cannot say on this record, as a matter of law, that plaintiff's injuries had no causal connection to the accident.

The dissent unpersuasively argues that the Court of Appeals' brief references to Pommells v Perez (4 NY3d 566 [2005]) in the Perl opinion mandate a ruling in defendant's favor unless plaintiff's submissions specifically explain why the conclusion of degeneration by defendants' doctors is incorrect; this is not what Perl holds. Rather, the Court in Perl concluded that the plaintiff's contrary evidence presented on a summary judgment motion, even if "hardly powerful," merely must be sufficient to raise an issue of fact (Perl, 18 NY3d at 219). In fact, the Perl opinion focuses on whether the numerical measurements of range of motion were contemporaneous, which is not the central issue in this case. As the dissent notes, the record here does not contain as much detail in the treating physician's affirmation as was contained in the Perl affirmation, but such detail is not required. Plaintiff, at her deposition, explained that she had not previously been injured before this accident, and Dr. Khakhar noted she was acutely symptomatic when he saw her about a week after the accident. Here, this information, combined with Dr. Khakhar's affirmation and conclusion as to causation, contained sufficient detail. The dissent's suggestion that there is a specific catechism that plaintiff's doctor must recite ignores the central purpose of a summary judgment motion, which is to determine whether there are factual issues to be resolved at trial.

Nor is Carrasco v Mendez (4 NY3d 566 [2005], supra), one of the three appeals decided in Pommells, similar to plaintiff's case, as the dissent contends [FN2]. Carrasco's original doctor concluded in his final report that Carrasco's pain was related to a prior degenerative condition, thereby agreeing with the defendant's analysis (id. at 579-580). Dr. Khakhar, however, found just the opposite with regard to plaintiff, and concluded that her injuries were casually connected to the accident. The dissent incorrectly argues that Carrasco turns on the lack of detail in the doctor's conclusions. However, the Carrasco Court found that the plaintiff "did not refute defendant's evidence of a preexisting degenerative condition" because plaintiff's second doctor's report "was entirely consistent with those formations identified by the MRI" and with the conclusion of the defendant's expert (Id. at 580).

The court should have dismissed plaintiff's 90/180-day claim. Plaintiff's deposition testimony that she was confined to her home for only one month after the accident and her treating physiatrist's statement that she was "partially incapacitated" are insufficient to raise the inference that plaintiff was prevented from performing her usual and customary activities for at least 90 of the 180 days following the accident (Insurance Law § 5102[d]; see Williams v Baldor Specialty Foods, Inc., 70 AD3d 522, 523 [2010]; Valentin v Pomilla, 59 AD3d 184, 186-187 [2009]).

All concur except Andrias, J.P. and Friedman, J. who dissent in part in a memorandum by Friedman, J. as follows:

FRIEDMAN, J. (dissenting in part)

Plaintiff claims to have suffered injuries to her lumbar spine as a result of the subject motor vehicle accident. In support of their motion for summary judgment, defendants submitted competent medical expert evidence, in the form of an affirmed MRI report, explaining in detail why the reporting radiologist concluded that plaintiff's lumbar spine exhibited changes due to preexisting degeneration rather than traumatic injury. In opposition, not only did plaintiff fail to submit any report by a radiologist, the physiatrist whose affirmation she submitted completely ignored the likelihood raised by the defense radiologist that plaintiff's lumbar deficits were the result of degeneration. Moreover, the two other medical reports plaintiff submitted —- putting aside that neither one was sworn or affirmed —- both explicitly acknowledged (presumably based on a radiological report absent from the record) that the lumbar spine MRI evidenced "degenerative changes," and drew no connection between plaintiff's condition and the accident.

Because plaintiff submitted no evidence specifically addressing and rebutting the view of the defense radiologist that plaintiff's deficits were the result of a degenerative condition that preexisted the accident, under precedent of the Court of Appeals and of this Court, defendants are entitled to summary judgment dismissing the complaint insofar as it seeks recovery for a "permanent consequential limitation of use of a body organ or member" or "significant limitation of use of a body function or system" comprising a "serious injury" under the No-Fault Law (Insurance Law § 5102[d]). As more fully discussed below, the Court of Appeals' recent decision in Perl v Meher (18 NY3d 208 [2011]) does not support the majority's result because, unlike here, the plaintiff's experts in Perl specifically addressed the defense theory that the MRI demonstrated degenerative etiology. Since I agree with the majority that the claim under the 90/180-day provision of § 5102(d) should have been dismissed, I would reverse and grant in its entirety defendants' motion for summary judgment dismissing the complaint. To the extent the majority does otherwise, I respectfully dissent.

In my view, the medical evidence concerning the etiology of plaintiff's lumbar spine condition suffices, by itself, to require the dismissal of her claim under the "permanent consequential limitation" and "significant limitation" prongs of the No-Fault Law's definition of "serious injury." Accordingly, I will restrict my discussion of the medical evidence to the material bearing on the origin of the spinal condition.[FN1]

Plaintiff was involved in a two-car collision on June 30, 2007, when she was 54 years old [FN2] . She did not have any physical complaints immediately after the accident. The next day, she went to an emergency room because she "felt a little pain" in her back and right shoulder. The hospital told plaintiff that it was "just a sprain," gave her Motrin and sent her home, without taking any X rays. On July 9, 2007, she first visited Gautam K. Khakhar, M.D., a physiatrist, who found her to be "partially incapacitated," started her on a course of physical therapy, referred her to an orthopedist for an electrodiagnostic test, and ordered an MRI of, inter alia, the lumbosacral spine. Dr. Khakhar subsequently referred plaintiff to a pain management specialist. Plaintiff treated with Dr. Khakhar until December 17, 2007, when he determined that she had reached "maximum medical improvement from conservative management." More than a year and a half later, on August 31, 2009 (after this action had been commenced), plaintiff again visited Dr. Khakhar, who examined her, referred her to physical therapy and advised her to consult a spinal surgeon. Plaintiff was examined by Dr. Khakhar once again on October 26, 2009 (after defendants moved for summary judgment).

In support of their motion for summary judgment, defendants submitted, among other things, an affirmed MRI report, dated January 6, 2009, by Jessica F. Berkowitz, M.D., a radiologist, based on the MRI of plaintiff's lumbar spine that was made on July 16, 2007 (16 days after the accident). In relevant part, Dr. Berkowitz reported:

"IMPRESSION: Diffuse disc bulge, L5-S1. Disc bulges are chronic and degenerative in origin. There is no evidence of acute traumatic injury to the lumbar spine such as vertebral fracture, asymmetry of the disc spaces, ligamentous tear or epidural hematoma.

"CAUSAL RELATIONSHIP: Evaluation of this MRI examination reveals no causal relationship between the claimant's alleged accident and the findings on the MRI examination."

In opposing the summary judgment motion, plaintiff did not submit a report by any radiologist who had examined the MRI of her lumbar spine. She did submit an affirmation by Dr. Khakhar, plaintiff's treating physiatrist, but Dr. Khakhar did not claim to have reviewed the MRI or even to be qualified to undertake such a review. While Dr. Khakhar stated in his affirmation that "MRI reports of the lumbosacral spine and right shoulder taken on July 16, 2007 are annexed hereto as Exhibit A,'" in the record before us, no such reports are annexed to his affirmation. Neither does Dr. Khakhar's affirmation offer any substantive description of the contents of the MRI reports or explain how those reports support his conclusion that plaintiff's symptoms were "a result of the [subject] motor vehicle accident."

The report on the MRI of the lumbosacral spine referred to by Dr. Khakhar is presumably the same one mentioned in plaintiff's counsel's opposition affirmation. Specifically, counsel's affirmation makes reference to "Dr. Mark Frelich's impression of an MR Scan of the Lumbosacral spine,'" states that Dr. Frelich's report is annexed as "Plaintiff's Exhibit D,'" and quotes a sentence said to be from that report [FN3] . However, there is no MRI report by a Dr. Mark Frelich, or by any physician having a similar name, to be found anywhere in the record.[FN4]

Plaintiff submitted two reports by physicians other than Dr. Khakhar, but neither of these reports was sworn or affirmed, neither was prepared by a radiologist, and neither offered any opinion on the cause of plaintiff's symptoms. Moreover, far from contradicting the view of the defense radiologist that plaintiff's lumbar spine exhibited a preexisting degenerative condition, both of these reports refer to an MRI report outside the record (possibly that of Dr. Frelich) that actually confirms the degenerative etiology of plaintiff's symptoms. Thus, the report of Dov J. Berkowitz, M.D., an orthopedist, dated August 2, 2007, states: "At this point, MRI is positive for a disc protrusion with some degenerative changes" (emphasis added). Similarly, the report of Brian Haftel, M.D., a pain management specialist, dated September 7, 2007, states that a report on the MRI of plaintiff's lumbar spine noted "degenerative changes noted at L4-5 articulating facet joints leading to hypertrophy of the ligamentum flavum," "[d]essicative changes . . . at the L5/S1 level consistent with degenerative change," and "degenerative changes of the articulating facets" of L5/S1. Aside from these references to MRI evidence of degenerative changes, neither the orthopedist, Dr. Berkowitz, nor the pain management specialist, Dr. Haftel, offered any opinion as to the cause of plaintiff's lower-back symptoms. Notably, the reports of both Dr. Berkowitz and Dr. Haftel are addressed to Dr. Khakhar, indicating that Dr. Khakhar referred plaintiff to the two other physicians.

In the end, the only evidence plaintiff submitted concerning the origin of her symptoms and impairments were Dr. Khakhar's bare assertions in his affirmation to the effect that those symptoms "were caused by the motor vehicle accident of June 30, 2007."[FN5] Dr. Khakhar gave no account of the basis on which he reached this conclusion. Although he claimed to have reached his conclusions based upon, inter alia, an MRI report on the lumbosacral spine (which, to reiterate, was not annexed to his report), he did not explain how anything in that unsubmitted MRI report supported his attribution of the impairments to an accident. Equally important, he made no mention at all of the defense radiologist's view that the condition revealed by the MRI of the lumbar spine was a preexisting degenerative condition. Dr. Khakhar simply ignored the possibility that plaintiff's symptoms had a degenerative etiology, notwithstanding that the reports of two physicians to whom he referred her both make reference to evidence that she suffers from a degenerative condition. 

The problem with plaintiff's opposition to the summary judgment motion in this case is that, while Dr. Khakhar claimed to rely on an MRI report by an unidentified physician, plaintiff not only failed to make that MRI report part of the record, Dr. Khakhar completely failed both to describe the contents of that report (other than to say it concerned the lumbosacral spine) and to explain how that unseen and undescribed report supported his conclusion that plaintiff's symptoms "result[ed]" from the subject accident [FN6] . Further, while, under Perl (as more fully discussed below), it would have been sufficient for Dr. Khakhar to address Dr. Jessica Berkowitz's finding of a degenerative condition by explaining that the condition was "asymptomatic" until exacerbated by the accident, Dr. Khakhar's affirmation contains no such statement [FN7] . Again, as I will explain below, even under Perl, where (as here) the defense has made a prima facie case that the symptoms result from preexisting degeneration, a plaintiff cannot simply rely on a treating physician's unsupported assertion that the symptoms were somehow causally connected to the accident. This is all that plaintiff presented here.

In sum, in response to defendants' expert radiological evidence attributing plaintiff's impairments to a preexisting degenerative condition, plaintiff submitted nothing but the boilerplate, unexplained and unsupported assertion of her treating physiatrist that the impairments resulted from the subject accident. Dr. Khakhar, plaintiff's physiatrist, utterly failed to address the view of the defense radiologist that plaintiff was simply experiencing the effects of the degenerative changes that had accumulated over the 54 years of her life preceding the accident. Indeed, Dr. Khakhar ignored the well-supported opinion of the defense radiologist even though the reports of the orthopedist and pain specialist to whom Dr. Khakhar referred plaintiff made reference to an MRI report (not submitted by plaintiff) that evidently supports the same view. Under controlling case law, the foregoing does not suffice to raise a triable issue in the face of defendants' prima facie showing, through the affirmed MRI report of the defense radiologist, that plaintiff's lumbar spinal condition results from preexisting degenerative disease.

In an action to recover for serious injury under Insurance Law § 5102(d), where the defendant moves for summary judgment based on detailed and competent medical evidence attributing the alleged injury to a preexisting degenerative condition rather than the accident, the burden shifts to the plaintiff to come forward with competent medical evidence specifically refuting the claimed lack of causal connection to the accident (see Pommells v Perez, 4 NY3d 566, 579-580 [2005]). A plaintiff cannot carry this burden simply by offering a conclusory expert opinion that the injuries "were causally related to the accident" without directly addressing the defendant's theory that the injuries resulted from degenerative changes (see Pommells, 4 NY3d at 580).

The Court of Appeals' discussion of Carrasco v Mendez, one of the three appeals decided in the Pommells opinion (cited with approval in Perl v Meher, 18 NY3d at 218) illustrates how the rule described above operates in a scenario similar to the one before us. In Carrasco, the defendant submitted in support of his summary judgment motion the report of a medical expert who, based on MRIs and other evidence, "concluded that the pain in areas identified as herniated . . . was caused by preexisting and degenerative conditions" (4 NY3d at 579). The defendant also submitted a report by the plaintiff's "original doctor . . . not[ing] . . . that plaintiff's pain was related to a prior condition" (id.). In response, the plaintiff offered the report of his treating physician, who "opin[ed] that plaintiff suffered serious and permanent injuries which were causally related to the accident" (id. at 579-580). The Court of Appeals held that this did not suffice to defeat the summary judgment motion because

"plaintiff did not refute defendant's evidence of a preexisting degenerative condition. To the contrary, the [physician's] report supplied by plaintiff explained that the pain and loss of range of motion in the cervical spine was entirely consistent with those formations identified by the MRI and set forth by [the physicians relied on by the defendant] as related to a degenerative condition. In this case, with persuasive evidence that plaintiff's alleged pain and injuries were related to a preexisting condition, plaintiff had the burden to come forward with evidence addressing defendant's claimed lack of causation. In the absence of any such evidence, we conclude . . . that defendant was entitled to summary dismissal of the complaint" (id. at 580).

This Court has summarized the governing principles as follows:
"To recover damages for noneconomic loss related to personal injury allegedly sustained in a motor vehicle accident, the plaintiff is required to present nonconclusory expert evidence sufficient to support a finding not only that the alleged injury is serious' within the meaning of Insurance Law § 5102(d), but also that the injury was causally related to the accident. Absent an explanation of the basis for concluding that the injury was caused by the accident, as opposed to other possibilities evidenced in the record, an expert's conclusion that plaintiff's condition is causally related to the subject accident is mere speculation, insufficient to support a finding that such a causal link exists" (Valentin v Pomilla, 59 AD3d 184, 186 [2009], quoting Diaz v Anasco, 38 AD3d 295, 295-296 [2007] [internal quotation marks omitted]). 

Numerous other decisions issued by this Court in recent years hold to the same effect.[FN8]

In my view, the foregoing authority —- including the decision of the Court of Appeals in Pommells, as substantially reaffirmed in Perl —- requires that defendants be granted summary judgment dismissing the complaint on the ground that plaintiff has failed to address the medical evidence attributing his alleged injuries to degenerative disease. I see no principled basis for departing from a rule so well established and so well founded in reason and fairness. To the extent certain decisions of this Court have departed from this rule (see e.g. Yuen v Arka Memory Cab Corp., 80 AD3d 481 [2011] [cited by the majority]; Jacobs v Rolon, 76 AD3d 905 [2010]; Linton v Nawaz, 62 AD3d 434 [2009], affd on other grounds 14 NY3d 821 [2010] [cited by the majority]; June v Akhtar, 62 AD3d 427 [2009]; Glynn v Hopkins, 55 AD3d 498 [2008]), I do not believe that we should follow these decisions, as they are contrary to the weight of this Court's own authority and, more importantly, contrary to the holding of the Court of Appeals in Pommells.

In this case, the only admissible radiology report in the record attributed the observed condition of plaintiff's lumbar spine to degenerative changes. Moreover, two other physician's reports submitted by plaintiff herself, although not admissible because not sworn or affirmed, referred to another radiological report based on the same MRI noting degenerative changes in the lumbar spine [FN9] . The only expert who attributed plaintiff's impairments to the accident was Dr. Khakhar, who simply asserted that such a causal relationship existed, without explaining his reasoning and, most importantly, without addressing the defense radiologist's view (supported by the reports of his own orthopedic and pain management consultants) that plaintiff was experiencing the effects of degenerative changes. Indeed, Dr. Khakhar did not even claim to have ascertained that plaintiff's symptoms began only after the accident.

The instant case is readily distinguishable from Perl v Meher (supra), in which the plaintiff's radiologist and treating physician both specifically rebutted the defense radiologist's view that the MRI established that the symptoms were the result of degeneration. The plaintiff's radiologist in Perl, "while [acknowledging] that some findings from the MRI are consistent with degenerative disease,' [opined that] a single MRI cannot rule out the possibility that the patient's soft tissue findings are . . . a result of a specific trauma.' That question, [the plaintiff's] radiologist said, can best be judged by the patient's treating physician in conjunction with exam, history and any previous tests'" (18 NY3d at 219). Further, the treating physician in Perl opined that the plaintiff's symptoms were "based upon a traumatic event and not degeneration" (emphasis added) because he was "asymptomatic before the motor vehicle accident." No such statements specifically denying degenerative etiology appear in Dr. Khakhar's affirmation or in any other document submitted by plaintiff in this case. Again, Dr. Khakhar did not even claim that plaintiff's symptoms did not begin until after the accident.

In asserting that Perl is not distinguishable, the majority ignores the fact that the result in Perl was based on the affirmed statement by the treating physician that, because the plaintiff " had not suffered any similar symptoms before the accident or had any prior injury/medical conditions that would result in these findings,' the findings were causally related to the accident" (18 NY3d at 219). Again, the record in this case contains no such statement. The majority reads Perl's characterization of the plaintiff's evidence in that case as "hardly powerful" (id.) to abolish any requirement that a plaintiff, in opposing summary judgment in a no-fault case, specifically address a defendant's a prima facie showing that the symptoms are attributable to a preexisting degenerative condition. I see no warrant for this reading of Perl.

Nor does the majority's attempt to distinguish Carrasco v Mendez hold water. There is no indication in the Court of Appeals' decision that the view of the Carrasco "plaintiff's original doctor . . . that [his] pain was related to a prior condition" (4 NY3d at 579) was essential to the Court's holding that the defendant in that case was entitled to summary judgment [FN10] . In Carrasco, as here, the plaintiff presented a treating physician's unsupported and unexplained conclusion that the symptoms were " a result of the motor vehicle accident'" (id.). This was held to be insufficient in Carrasco, and nothing in Perl indicates that the Court of Appeals has abandoned this holding.[FN11]

The majority asserts that I "cite[] no cases in support of [my] argument that plaintiff's doctor must describe the specific contents of the MRI report for plaintiff to defeat a summary judgment motion." As I believe should be clear from the foregoing discussion of the case law, the Court of Appeals has always held to the position —- appropriately followed by the weight of authority in this Court —- that, in the face of expert evidence attributing a plaintiff's alleged symptoms to a preexisting degenerative condition, the plaintiff must come forward with an expert opinion articulating some reason for attributing the symptoms to the accident. I accept that the reason given need not be a conflicting MRI report, but plaintiff's expert cannot rely on a MRI report to rebut the one submitted by defendants without at least explaining how the contents of plaintiff's MRI report support his conclusion. Here, Dr. Khakhar says he looked at an MRI report, but utterly fails to explain how that report supports his conclusion. Nor does he offer any other explanation —- even a statement that the symptoms did not appear until after the accident —- for rejecting the view of the defense radiologist that the symptoms resulted from the degenerative condition revealed by the MRI. In the end, as in Carrasco, plaintiff here has offered nothing on causation but her treating physician's naked assertion.

The majority distorts my position by asserting that I am "suggest[ing] that there is a specific catechism that plaintiff's doctor must recite." On the contrary, it is my view that the plaintiff's medical expert must provide some substantive explanation —- even a weak one —- for his or her rejection of the defense expert's view that the symptoms are degenerative in nature. It is the majority that is allowing plaintiff to defeat a well-supported summary judgment motion with nothing more than a boilerplate, uninformative "catechism" over a physician's signature.

For the foregoing reasons, the majority, insofar as it sustains the complaint, erroneously departs from the course charted by the Court of Appeals. I therefore dissent from that aspect of the majority's decision.

Footnotes

Footnote 1:Dr. Khakhar did not specify who wrote the MRI reports, although the date of the MRI was the same as the date reflected in the report of defendant's expert, Dr. Berkowitz. Contrary to the dissent's argument, this does not invalidate Dr. Khakhar's affirmation. Even if the doctor relied on the same films as defendant's expert, they could reach different conclusions on causation.

Footnote 2: We need not analyze the specific facts of all the cases cited in the dissent's footnote 8, because, under Perl, which is the most recent controlling authority, plaintiff's submissions are sufficient. Moreover, as the dissent concedes, other precedents of this Court support the conclusion reached here (see e.g. Yuen v Arka Memory Cab Corp., 80 AD3d 481 [2011], supra).

Footnote 1: In addition, while plaintiff alleges that she felt pain in her right shoulder after the accident, the only permanent injury she claimed in opposing the summary judgment motion was to her lumbar spine. She made no claim, and offered no evidence, that the alleged shoulder injury was permanent. Accordingly, there is no need to discuss the medical evidence relating to the alleged shoulder injury.

Footnote 2: According to the report of a physical examination of plaintiff conducted on September 7, 2007 (about two months after the accident), plaintiff was then five feet, one inch tall and weighed 160 pounds.

Footnote 3: The sentence purportedly quoted from Dr. Frelich's report ("Bulging disc L5-S1 with extension into right and left L5-S1 Neural Foramina without compromise of the dorsal root ganglia") says nothing about the possible cause of the finding.

Footnote 4: The record does include an "Exhibit D" to plaintiff's counsel's affirmation, but this document is a report by Dr. Khakhar based on the physical examination of plaintiff he conducted on October 26, 2009.

Footnote 5: In addition to Dr. Khakhar's affirmation, plaintiff submitted two affirmed examination reports by the same physician, but neither of these examination reports said anything about etiology.

Footnote 6: Plaintiff's failure to submit the MRI report with Dr. Khakhar's affirmation, and Dr. Khakhar's failure to discuss the contents of that MRI report in any substantive way, are presumably related to the fact that the MRI report discussed in the reports of plaintiff's orthopedist and pain management specialist actually corroborates the view that plaintiff had a preexisting degenerative condition.

Footnote 7: The majority seems to take the position that the combination of plaintiff's statement that "she had not previously been injured before this accident" with Dr. Khakhar's observation of symptoms after the accident is equivalent to an affirmed statement by a physician that any preexisting condition had been asymptomatic before the accident. However, even if it is true that plaintiff was not "injured" before the subject accident, that does not necessarily mean that she did not have symptoms until the accident occurred. Thus, I do not follow the majority's logic.

Footnote 8: See e.g. Arroyo v Morris, 85 AD3d 679 (2011); Soho v Konate, 85 AD3d 522 (2011); Feliz v Fragosa, 85 AD3d 417 (2011); Shu Chi Lam v Wang Dong, 84 AD3d 515 (2011); Johnson v Singh, 82 AD3d 565 (2011); Lemos v Giacomo Mgt., Inc., 82 AD3d 602 (2011); Porter v Bajana, 82 AD3d 488 (2011); Riviello v Kambasi, 82 AD3d 543 (2011); Quinones v Ksieniewicz, 80 AD3d 506 (2011); Rodriguez v Freight Masters, Inc., 80 AD3d 452 (2011); Thomas v Booker, 76 AD3d 456 (2010); Turner v Benycol Transp. Corp., 78 AD3d 506 (2010); Nieves v Castillo, 74 AD3d 535 (2010); Perez v Giouroukos, 75 AD3d 488 (2010); DeJesus v Cruz, 73 AD3d 539 (2010); Weinberg v Okapi Taxi, Inc., 73 AD3d 439 (2010); Barner v Shahid, 73 AD3d 593 (2010); Cabrera v Gilpin, 72 AD3d 552 (2010); Kerr v Klinger, 71 AD3d 593 (2010); Amamedi v Archibala, 70 AD3d 449 (2010), lv denied 15 NY3d 713 [2010]; D'Ariano v Meldish, 68 AD3d 640 (2009); Lopez v Abdul-Wahab, 67 AD3d 598 (2009); Cruz v Lugo, 67 AD3d 495 (2009); Moses v Gelco Corp., 63 AD3d 548 (2009); Depena v Sylla, 63 AD3d 504 (2009), lv denied 13 NY3d 706 (2009); Jean v Kabaya, 63 AD3d 509 (2009); Marsh v City of New York, 61 AD3d 552 (2009); Nickolson v Albishara, 61 AD3d 542 (2009); Delfino v Luzon, 60 AD3d 196 (2009); Colon v Tavares, 60 AD3d 419 (2009); Russell v Mitchell, 59 AD3d 355 (2009); Sky v Tabbs, 57 AD3d 235 (2008); Ronda v Friendly Baptist Church, 52 AD3d 440 (2008); Rodriguez v Abdallah, 51 AD3d 590 (2008); Becerril v Sol Cab Corp., 50 AD3d 261 (2008); Santana v Khan, 48 AD3d 318 (2008); Yagi v Corbin, 44 AD3d 440 (2007); Johnson v Marriott Mgt. Servs. Corp., 44 AD3d 450 (2007), lv denied 10 NY3d 716 (2008); Brewster v FTM Servo Corp., 44 AD3d 351 (2007); Davis v Giria, 40 AD3d 272 (2007); Otero v 971 Only U, Inc., 36 AD3d 430 (2007); Henry v Rivera, 34 AD3d 352 (2006); Style v Joseph, 32 AD3d 212 (2006); Agard v Bryant, 24 AD3d 182 (2005); Simms v APA Truck Leasing Corp., 14 AD3d 322 (2005); Blackwell v Fraser, 13 AD3d 157 (2004); Wallingford v Perez, 11 AD3d 390 (2004).

Footnote 9: The reports of plaintiff's orthopedist and pain management specialist are both dated in 2007 and therefore could not be referring to the report of the defense radiologist, which is dated January 6, 2009.

Footnote 10: In fact, this case does present a parallel to the view of the "plaintiff's original doctor" in Carrasco in that, here, as previously discussed, the reports of plaintiff's orthopedist and pain management specialist both refer to an MRI report that noted the presence of degenerative changes in the lumbosacral spine.

Footnote 11: The majority also tries to distinguish Carrasco based on the Court's statement that the report of plaintiff's second physician (Dr. Lambrakis) " was entirely consistent with those formations identified by the MRI' and with the conclusion of the defendant's expert" (citing 4 NY3d at 580). However, exactly the same could be said here about Dr. Khakhar's report. Just as with Dr. Lambrakis's report in Carrasco (which opined that the plaintiff's symptoms in that case were " a result of the motor vehicle accident'" [4 NY3d at 579]), the only inconsistency between Dr. Khakhar's report and the MRI report of Dr. Berkowitz was Dr. Khakhar's unexplained, boilerplate conclusion that plaintiff's symptoms were caused by the accident.

Camacho v. Espinoza


Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Erdal Turnacioglu of counsel), for appellants.
Dinkes & Schwitzer, P.C., New York (Jacob Galperin of counsel), for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered October 20, 2011, which, insofar as appealed from, in this action for personal injuries sustained in a motor vehicle accident, denied the motion of defendants Angel Espinoza and Mitzy Transportation, Inc. for summary judgment dismissing the complaint in its entirety as against them, unanimously affirmed, without costs.

Defendants made a prima facie showing that plaintiff's cervical, lumbar, left shoulder, and left wrist injuries were not serious injuries caused by the accident. Defendants submitted affirmed reports of a radiologist and an orthopedist, showing that plaintiff sustained no range of motion limitations, and objective MRI evidence evincing no evidence of traumatic or causally related injury (see Spencer v Golden Eagle, Inc., 82 AD3d 589 [2011]). Defendant also established that plaintiff's cervical injuries were not serious injuries caused by the accident by submitting evidence that she suffered from degenerative conditions that preexisted the accident (id.).

In opposition, plaintiff raised triable issues of fact. Although plaintiff's physicians did not expressly address the conclusion of defendants' expert that the cervical injuries were degenerative in origin, the physician attributed plaintiff's injuries to a different, yet equally plausible cause, namely, the accident (see Yuen v Arka Memory Cab Corp., 80 AD3d 481 [2011]).

Moreover, plaintiff raised an issue of fact regarding whether the injuries to her left shoulder and cervical spine were serious injuries. Plaintiff submitted an affirmed report from her treating orthopedic surgeon demonstrating that she continued to exhibit range of motion deficits in her left shoulder even after having surgery (see Paulino v Rodriguez, 91 AD3d 559 [2012]). She also submitted an affidavit from her chiropractor, quantifying range of motion limitations in her cervical spine. Since plaintiff established that some injuries meet the "no-fault" threshold, "it is unnecessary to address whether [her] proof with respect to other injuries [s]he allegedly sustained would have been sufficient to withstand defendants' motion for summary judgment" (see Linton v Nawaz, 14 NY3d 821, 822 [2010]).
However, plaintiff failed to rebut defendants' showing on causation with regard to the lumbar spine.

Rosa v. Mejia


Harold Solomon, Rockville Center (Bernard G. Chambers of counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for respondent.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered November 5, 2010, which granted defendant's motion for summary judgment dismissing the complaint based on the failure to establish a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendant made a prima facie showing that plaintiff did not sustain a "significant limitation of use" or "permanent consequential limitation of use" of her cervical and lumbar spines as a result of the subject accident (Insurance Law § 5102[d]). Defendant submitted, among other things, the affirmed report of his orthopedist, who found normal ranges of motion in plaintiff's cervical spine, and the affirmed report of his radiologist, who indicated that plaintiff's lumbar injury was caused by a preexisting degenerative condition and not the accident (see Torres v Triboro Servs., Inc., 83 AD3d 563 [2011]; see also Spencer v Golden Eagle, Inc., 82 AD3d 589, 590 [2011]). Defendant's orthopedic and neurologic experts both concluded that plaintiff had normal ranges of motion in her cervical spine, "and the minor differences in what they regarded as normal ranges do not affect defendant's entitlement to summary judgment" (Anderson v Zapata, 88 AD3d 504, 504 [2011]).

In opposition, plaintiff failed to submit any evidence of contemporaneous, postaccident treatment. Notably absent were emergency room, physical therapy or chiropractic records, medical charts or other documents setting forth the treatment she claimed to have received relative to this accident. The affirmation of her treating physician, Dr. Perez, states that plaintiff was first seen by her on June 25, 2008, some 5½ months after the accident. Plaintiff's deposition testimony stated that she was treated at a hospital emergency room the day of the accident and then three days later. She also testified that she was treated by various medical providers, whom she could not identify by name except for Dr. Perez. Although plaintiff's bill of particulars references a number of medical providers plaintiff claims to have seen, and states there were attached bills and dates of treatment, none of these bills or treatment dates appear in the record before us. Indeed, other than uncertified copies of the MRI reports from February 21 and 28, 2008, this record is devoid of any medical records, charts or bills to support plaintiff's claim of having received treatment prior to seeing Dr. Perez in June 2008.

In short, "the record is devoid of any competent evidence of plaintiff's treatment [or the] need for treatment" that would warrant the denial of defendant's motion (Thompson v Abbasi, 15 AD3d 95, 97 [2005]).

The recent Court of Appeals decision in Perl v Meher (18 NY3d 208 [2011]) does not require a different result. Perl did not abrogate the need for at least a qualitative assessment of injuries soon after an accident (see Salman v Rosario, 87 AD3d 482, 484 [2011]). In fact, the Court noted with approval the comment in a legal article [FN1] that "a contemporaneous doctor's report is important to proof of causation; an examination by a doctor years later cannot reliably connect the symptoms with the accident. But where causation is proved, it is not unreasonable to measure the severity of the injuries at a later time." (18 NY3d at 217-218).

In this case, plaintiff has presented no admissible proof that she saw any medical provider for any evaluation until 5½ months after the accident. While the Court of Appeals in Perl "reject[ed] a rule that would make contemporaneous quantitative measurements a prerequisite to recovery" (18 NY3d at 218), it confirmed the necessity of some type of contemporaneous treatment to establish that a plaintiff's injuries were causally related to the incident in question.

Additionally, plaintiff's opposition fails to address defendant's evidence of preexisting degeneration in plaintiff's lumbar spine (see Valentin v Pomilla, 59 AD3d 184, 184-186 [2009]). Defendant's expert radiologist, in examining the MRI of plaintiff's lumbar spine taken on February 28, 2008, approximately 5½ weeks after the accident, stated that he observed "degenerative changes at the L5/S1 level." These findings were, in the expert's opinion, "consistent with a preexisting condition." The expert opined that "[t]here is no radiographic evidence of recent traumatic or causally related injury to the lumbar spine." Dr. Cooper, plaintiff's own radiologist, confirmed "degenerative narrowing at the L5-S1 intervertebral disc space" without further comment.

Significantly, Perl offers guidance with respect to this issue. As in this case, the defendant in Perl presented a sworn radiologist's report based on an MRI that her injuries were degenerative in nature and preexisted the accident. Unlike here, the Perl plaintiff submitted a radiologist's report that, while conceding that the degeneration in question might be preexisting, also raised the issue that such degeneration may have been "a result of a specific trauma" (18 NY3d at 219), thus raising, as the Court of Appeals found, an issue of fact sufficient to warrant denial of the defendant's summary judgment motion (id. at 218-219). This is significantly different from the case before us. Plaintiff's expert merely noted the degeneration without contesting defendant's expert's opinion that it was a preexisting condition and not causally related to the accident. Thus, no issue of fact was raised.

Defendant also argues that there is a 1 1/2-year gap in plaintiff's treatment from June 2008 to December 2009. As defendant first raised this issue in his reply affirmation in support of the motion, it is not properly before us (see Tadesse v Degnich, 81 AD3d 570 [2011]). We note however, that, although Dr. Perez stated in her follow-up exam of December 9, 2009 that plaintiff had been receiving chiropractic and physical therapy treatment "on the dates set forth in the appendix to this affidavit," no such appendix appears in the record before us. As with her other allegations of treatment, plaintiff "inexplicably has provided no competent supporting documentation of this medical treatment'" (Thompson, 15 AD3d at 99).

Defendant made a prima facie showing of entitlement to judgment as a matter of law with respect to plaintiff's 90/180-day claim by submitting plaintiff's bill of particulars, which provided that, immediately after the accident, plaintiff was confined to bed and home for only two days and approximately one week respectively (see Williams v Baldor Specialty Foods, Inc., 70 AD3d 522 [2010]). In opposition, plaintiff failed to raise an issue of fact.

We have considered plaintiff's remaining contentions and find them unavailing.

Correa v. Saifuddin

Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Robert D. Grace of counsel), for appellants.
Ross Legan Rosenberg Zelen & Flaks, LLP, New York (Clifford F. Zelen of counsel), for respondent.

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered March 9, 2011, which, insofar as appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing plaintiff's claim of serious injury under the 90/180-day category of Insurance Law § 5102(d), affirmed, without costs.

Plaintiff was riding his bicycle on October 12, 2008, on his way to deliver food to a customer from the restaurant where he was employed, when his bicycle was struck from behind by a taxi. He was thrown to the ground, injuring his head, neck, back, right knee and right shoulder, and brought this negligence action against the owner and the driver of the taxi, claiming serious injury. Defendants' appeal concerns only the portion of plaintiff's action that was not dismissed, namely, the claim that he suffered "serious injury" as defined in Insurance Law § 5102(d) in that the accident caused "a medically determined injury or impairment of a non-permanent nature which prevents [him] from performing substantially all of the material acts which constitute [his] usual and customary daily activities" for at least 90 of the first 180 days after the accident. Plaintiff does not challenge the dismissal of his claims of serious injury based on assertions that his injuries constituted either a significant limitation of the use of a body function or system, or a permanent consequential limitation of a body organ or member.

The issue is whether defendants satisfied their burden in moving for summary judgment dismissing such a 90/180 claim. A defendant seeking summary judgment dismissing a claim bears the initial burden of coming forward with evidence that, absent contrary evidence creating an issue of fact, establishes as a matter of law that plaintiff cannot sustain this cause of action (see Wadford v Gruz, 35 AD3d 258 [2006]). "[U]nless that burden is met, the opponent need not come forward with any evidence at all" (Penava Mech. Corp. v Afgo Mech. Servs., Inc., 71 AD3d 493, 496 [2010]).

In seeking summary judgment dismissing the 90/180 portion of plaintiff's claim, defendants relied on plaintiff's testimony at his deposition that he was confined to bed and home for one month immediately following the accident, and the absence of any further testimony regarding the remainder of the first 180-day period. They also asserted that plaintiff had failed to provide any certified medical directive that he refrain from work during that period. Finally, they pointed to their experts' opinions, which they characterized as concluding that plaintiff had suffered no trauma as a result of the accident, negating any type of serious injury claim.

The motion court ruled in favor of plaintiff on this point, holding that defendants did not satisfy their initial burden on their motion for summary judgment as it concerned his 90/180 claim, in that reliance on plaintiff's testimony that he was confined to his home and bed for one month was insufficient. We agree.

Plaintiff's bill of particulars dated May 28, 2009, specified that he was "incapacitated from pursuing his usual duties, tasks and employment from the date of the accident, October 12, 2008 to present." As a matter of logic, testimony that plaintiff was sometimes able to leave his house simply does not demonstrate that plaintiff will be unable to establish that his non-permanent injuries prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for at least 90 of the 180 days following the accident.

We recognize this Court has previously held that such a limited showing was sufficient as a defendant's prima facie showing on a summary judgment motion (see Perez v Vasquez, 71 AD3d 531 [2010]; Guadalupe v Blondie Limo, Inc., 43 AD3d 669 [2007]). However, we are unable to discern from those decisions the reasoning justifying that aspect of those rulings.

As a point of comparison, where evidence shows, for example, that the plaintiff actually returned to work within the first 90 days after the accident, it is proper to dismiss 90/180 claims (see e.g. Byong Yol Yi v Canela, 70 AD3d 584 [2010]; Brantley v New York City Tr. Auth., 48 AD3d 313 [2008]), since the ability to return to work may be said to support a legitimate inference that the plaintiff must have been able to perform at least most of his usual and customary daily activities. But the ability to leave the house, without more, does not similarly support any such inference.

On the other side of the issue, we have repeatedly held that proof that a plaintiff missed more than 90 days of work is not determinative of a 90/180 claim, since that proof alone is insufficient to established that the person was "prevented from performing substantially all of the material acts which constitute [his] usual and customary daily activities" (Blake v Portexit Corp., 69 AD3d 426, 426 [2010] [internal quotations marks omitted]). But conversely, proof that a plaintiff was able to get out of bed or exit the house cannot affirmatively prove that the individual was able to perform substantially all his or her usual and customary daily activities.

As to defendants' suggestion that their experts' opinions showed that plaintiff suffered no trauma at all as a result of the accident, it is an overstatement. The experts offered no opinion as to whether plaintiff had sustained a non-permanent injury that prevented him from performing his usual activities during 90 of the first 180 days.

Since defendants failed to satisfy their burden of making a prima facie showing of entitlement to judgment based on their evidentiary submissions, plaintiff had no obligation to present evidence on the issue at all. That aspect of defendants' motion was therefore properly denied.

All concur except Freedman, J. who dissents in a memorandum as follows:

FREEDMAN, J. (dissenting)

I respectfully dissent and would reverse because I disagree with the majority's opinion that defendants failed to meet their initial burden for their summary judgment motion on plaintiff's "90/180-day" claim (see CPLR 3212[b]). Plaintiff's own deposition testimony sufficed to make a prima facie showing that defendants were entitled to judgment, and by finding otherwise the majority departs from an established line of rulings by this Court.

At his deposition, plaintiff testified that, following his accident, he was confined to his bed and his home for about one month. According to plaintiff, his physician told him he could not work, and plaintiff added that he did not feel "ready to work," could not walk like before, and could not bend over.

The majority acknowledges that in the past this Court has found that, in connection with 90/180-day claims, the defendants meet their initial burden under CPLR 3212(b) by submitting the plaintiffs' testimony or bills of particulars indicating that their injuries did not significantly impair their activities for 90 days (see Mitrotti v Elia, 91 AD3d 449 [2012] [bill of particulars stated that plaintiff was confined to bed for two weeks and home for two months]; Bonilla v Abdullah, 90 AD3d 466, 468 [2011] [plaintiff stated in affidavit that she was only confined to bed and home for a few weeks after accident]; Wetzel v Santana, 89 AD3d 554, 555 [2011] [confined to bed for two or three days]; Perez v Vasquez, 71 AD3d 531, 532 [2010] [confined to bed and home for three weeks after accident]; Byong Yol Yi v Canela, 70 AD3d 584 [2010] [plaintiff was not confined and returned to work within 90 days of the accident]; Linton v Nawaz, 62 AD3d 434, 443 [2009], affd 14 NY3d 821 [2010] [plaintiff returned to work part-time 79 days after his accident]; Guadalupe v Blondie Limo, Inc., 43 AD3d 669 [2007] [plaintiff confined for a few weeks]). But the majority downplays how frequently and consistently we have ruled on this issue, and makes no attempt to distinguish this action from the earlier cases.

Once defendants met their initial burden on the motion, plaintiff was required to come forward with evidence raising a triable issue of fact. However, plaintiff's submissions do not suffice. His statement that he did not feel ready to work, could not walk as he did before the accident, and could not bend over do not demonstrate that he was unable to perform "substantially all" of his "usual and customary daily activities" for at least 90 of the 180 days following the accident (Insurance Law § 5102[d]; see also Perl v Meher, 18 NY3d 208, 220 [2011] [plaintiff's subjective description of her injuries insufficient to defeat summary judgment]; Blake v Portexit Corp., 69 AD3d 426, 426-427 [2010]). Moreover, plaintiff did not support his claim about his impairment with any medical proof (see Lazu v Harlem Group, Inc., 89 AD3d 435, 436 [2011]; Taylor v American Radio Dispatcher, Inc., 63 AD3d 407, 408 [2009]; Brantley v New York City Tr. Auth., 48 AD3d 313 [2008]).

Accordingly, I would grant defendants summary judgment and dismiss the complaint.

Thompkins v. Ortiz


Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for respondent.

Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered April 25, 2011, which granted defendant's motion for summary judgment dismissing the complaint, unanimously modified, on the law, to the extent of reinstating plaintiff's claims that she sustained a "permanent consequential limitation of use of a body organ or member" and/or a "significant limitation of use of a body function or system," and otherwise affirmed, without costs.

Defendant established his entitlement to judgment as a matter of law in this action where plaintiff suffered injuries to her left foot, ankle and knee as she was exiting a livery cab driven by defendant. Plaintiff alleged that defendant started driving away before she was completely out of the cab, resulting in the car rolling over her foot and the door banging her knee. Defendant submitted an affirmed report of a radiologist who reviewed an MRI of plaintiff's left knee and opined that her condition was degenerative and that there was no evidence of acute or recent injury. Defendant also submitted the affirmed report of an orthopedic surgeon who found that plaintiff's knee, ankle and foot demonstrated full ranges of motion (see Grant v United Pavers Co., Inc., 91 AD3d 499 [2012]).

In opposition, plaintiff raised triable issues of fact. She submitted, inter alia, the report of a radiologist who found that the MRIs showed a partial intrasubstance meniscal tear of the left knee. Plaintiff also submitted reports of her orthopedic surgeon who conducted arthroscopy on her left knee and found meniscal tears, and of an orthopedist who, upon recent examination, found plaintiff had limited ranges of motion in her left ankle and knee and an antalgic gait to the left. The orthopedist also opined that the injuries were permanent and would require further treatment (see Mitchell v Calle, 90 AD3d 584 [2011]; Torres v Villanueva, 90 AD3d 523 [2011]). The orthopedist adequately addressed the causation issue by opining that the injuries were caused by the accident (see Perl v Meher, 18 NY3d 208, 219 [2011]; Yuen v Arka Memory Cab Corp., 80 AD3d 481 [2011]).

Dismissal of plaintiff's 90/180-day claim was proper. Plaintiff testified that as a result of the accident, she missed only one day of school (see e.g. Gaddy v Eyler, 79 NY2d 955, 958 [1992]).

Zambrana v. Timothy


Pollack, Pollack, Isaac & DeCicco, LLP, New York (Jillian Rosen of counsel), and Law Offices of Alexander Bespechny, Bronx (Alexander Bespechny of counsel), for appellant.
Adams, Hanson, Finder, Hughes, Rego, Kaplan & Fishbein, Yonkers (Jeffrey A. Domoto of counsel), for respondents.

Order, Supreme Court, Bronx County (Julia Rodriguez, J.), entered September 21, 2011, which granted defendants' motion for summary judgment dismissing the complaint alleging serious injuries under the "permanent consequential limitation of use," "significant limitation of use" and 90/180-day categories of Insurance Law § 5102(d), unanimously affirmed, without costs.

On January 9, 2008, then 26-year-old plaintiff was driving on the Van Wyck Expressway when a vehicle owned by defendant Clifford C. Hay, Inc. and driven by defendant Timothy J. Robert collided with his car. Plaintiff commenced this action alleging that he sustained serious injuries to his right knee.

Defendants established prima facie absence of a serious injury by submitting the report of an orthopedist who examined plaintiff on November 18, 2010, and found full range of motion, and absence of disability, permanency, or residuals (see De la Cruz v Hernandez, 84 AD3d 652, 652 [2011]).

Notwithstanding plaintiff's arguments that his medical records contain objective evidence of injuries, that he had adequately explained his cessation of treatment, and that he need not submit contemporaneous quantitative evidence of limitations to sustain his claims, he failed to raise a triable issue of fact as to existence of a permanent serious injury since he did not submit any objective evidence of limitations based on a recent examination of his knee (see Perl v Meher, 18 NY3d 208, 219-220 [2011]; Harrigan v Kemmaj, 85 AD3d 559 [2011]; Thompson v Abbasi, 15 AD3d 95, 97-98 [2005]). The most current medical evidence upon which plaintiff relies is the operative report dated October 18, 2008, which was prepared more than two years before defendants' expert's findings of full range of motion and resolved symptoms.

Defendants met their burden of proof as to plaintiffs' 90/180-day claim by relying on plaintiff's medical records, and his deposition testimony, which are insufficient to establish that he was unable to perform substantially all of the material acts which constitute his usual and customary daily activities
during the requisite period (see Uddin v Cooper, 32 AD3d 270, 271 [2006], lv denied 8 NY3d 808 [2007]).

Plaintiff failed to raise an issue of fact. The medical records upon which he relies indicate that, as of February 7, 2008, he was only "temporarily partially disabled" and, if he were working, would have been able to return to work with light duty restrictions (see Perl, 18 NY3d at 220; Williams v Perez, 92 AD3d 528 [2012]). Without any corroborating objective medical evidence, his affidavit, which simply repeats that he was curtailed from job hunting and confined to home during the requisite period, is insufficient to sustain a 90/180-day claim (see Rosa-Diaz v Maria Auto Corp., 79 AD3d 463 [2010]; Blake v Portexit Corp., 69 AD3d 426 [2010]).

Rodgers v. Duffy


Adams Hanson Finder Hughes Rego Kaplan & Fishbein, Yonkers, N.Y. (Jeffrey A. Domoto of counsel), for appellants.
Goldblatt & Associates, P.C., Mohegan Lake, N.Y. (Kenneth B. Goldblatt 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, Westchester County (Tolbert, J.), entered June 10, 2011, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the defendants' motion which were for summary judgment dismissing the complaint insofar as asserted against the defendant Charles Duffy, Sr., the cause of action asserted by the plaintiff Cindy Rodgers to recover damages for loss of services, and the demand for punitive damages, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.

On August 5, 2007, the plaintiff Edward Rodgers (hereinafter the injured plaintiff) allegedly was injured in an automobile accident in which he was a passenger in a car driven by the defendant Charles Duffy, Jr. (hereinafter the Duffy, Jr.). Duffy, Jr., allegedly was intoxicated at the time of the accident. The injured plaintiff allegedly sustained, inter alia, an injury to his right wrist, which affected activities requiring the use of his right arm. He returned to work on light duty by the end of August 2007.

In this action, the injured plaintiff sought to recover compensatory and punitive damages for his injuries, and his wife, the plaintiff Cindy Rodgers, asserted a cause of action to recover damages for loss of services. The defendants, Duffy, Jr., Diana Duffy, the registered owner of the car, and Charles Duffy, Sr., Duffy Jr.'s father, moved for summary judgment dismissing the complaint and the demand for punitive damages. In support of the motion, the defendants argued, inter alia, that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The defendants submitted, among other things, the medical records of the injured plaintiff. The Supreme Court denied the motion, and the defendants appeal.

The Supreme Court properly denied that branch of the defendants' motion which was 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 defendants' submissions were insufficient to establish, prima facie, that the injured plaintiff did not sustain a serious injury to his right wrist within the permanent consequential limitation or significant limitation categories of Insurance Law § 5102(d) as a result of the subject accident. The defendants' expert, Dr. Rene Elkin, conducted only a neurologic examination of the injured plaintiff, and deferred to an orthopedist with respect to any injury to the injured plaintiff's wrist. While Dr. Win Chang, one of the treating orthopedists, did state in progress notes that the injured plaintiff had full range of motion with discomfort upon movement of the wrist, Dr. Chang failed to set forth any objective tests that were performed to arrive at that conclusion (see Perez v Fugon, 52 AD3d 668, 669; Giammanco v Valerio, 47 AD3d 674, 675). Another treating orthopedist, Dr. Stuart Elkowitz, made no statement in his progress notes regarding any objective range of motion testing of the injured plaintiff's wrist.

The defendants also failed to establish, prima facie, that the wrist injury was entirely preexisting and not causally related to the subject accident. A preexisting condition does not foreclose a finding that the injuries were causally related to the accident (see Matthews v Cupie Transp. Corp., 302 AD2d 566). The injured plaintiff alleged that his wrist was injured in the subject accident and that the injury persisted, ultimately requiring surgery in February 2010. An MRI of his right wrist, performed in October 2007, showed "evidence of considerable osteochondral injury in the volar aspect of the lunate and triquetrum," and degeneration of the "triangular fibrocartilage complex" without any tear, all of which was "compatible with the clinical diagnosis of chronic ulnocarpal impingement." The February 2010 operative report of the orthopedic surgeon noted a central tear of the triangular fibrocartilage complex. This evidence did not eliminate a triable issue of fact as to whether the injured plaintiff sustained the wrist injury as a result of the subject accident or sustained an exacerbation of a preexisting condition as a result of the accident (see Pfeiffer v New York Cent. Mut. Fire Ins. Co., 71 AD3d 971).

Since the defendants failed to satisfy their initial burden regarding the wrist injury on their motion for summary judgment, it is not necessary to consider whether the plaintiffs' opposition papers were sufficient to raise a triable issue of fact (see Levin v Khan, 73 AD3d 991, 992; Akhtar v Santos, 57 AD3d 593).

However, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the demand for punitive damages. Punitive damages are available to vindicate a public right only where the actions of the alleged tortfeasor constitute either gross recklessness or intentional, wanton or malicious conduct aimed at the public generally, or were activated by evil or reprehensible motives (see Felton v Tourtoulis, 87 AD3d 983, 984; Aronis v TLC Vision Ctrs., Inc., 49 AD3d 576, 577). Evidence that a defendant was driving while intoxicated is insufficient by itself to justify the imposition of punitive damages (see Deon v Fortuna, 283 AD2d 388, 389; Boykin v Mora, 274 AD2d 441, 442). Here, there is no other evidence to indicate that Duffy, Jr., acted with evil or reprehensible motives, or so recklessly or wantonly as to warrant an award of punitive damages.

The Supreme Court also should have granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against Duffy, Sr., as he was not the owner or driver of the vehicle involved in the accident (see Oliver v Garris, 298 AD2d 509).

Finally, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the plaintiff Cindy Rodgers's cause of action to recover damages for loss of services, since the alleged tortious conduct and resultant injuries occurred prior to her marriage to the injured plaintiff (see Anderson v Eli Lilly & Co., 79 NY2d 797, 798; Briggs v Butterfield Mem. Hosp., 104 AD2d 626).

Cirillo v. Swan


Calendar Date: March 22, 2012
Before: Mercure, J.P., Spain, Stein, Garry and Egan Jr., JJ.

Mainetti, Mainetti & O'Connor, P.C., Kingston (Alfred B. Mainetti of counsel), for appellant.
Adams, Hanson, Finder, Hughes, Rego, Kaplan & Fishbein, Albany (Richard J. Fishbein of counsel), for respondent.

MEMORANDUM AND ORDER
Mercure, J.P.

Appeal from an order of the Supreme Court (Work, J.), entered April 22, 2011 in Ulster County, which granted defendant's motion for summary judgment dismissing the complaint.

The parties were involved in an automobile accident, following which plaintiff commenced this action to recover for injuries she purportedly sustained therein. After joinder of issue, defendant moved for summary judgment on the ground that plaintiff had not sustained a serious injury as defined by Insurance Law § 5102 (d). Supreme Court agreed and granted defendant's motion, prompting this appeal.

We now affirm. Plaintiff contends that defendant failed to show in the first instance, as required, that she did not suffer a serious injury as a result of the accident. In that regard, defendant relied upon a sworn report from orthopedic surgeon Robert Hendler, who reviewed plaintiff's medical records and found no objective evidence of pathology stemming from the accident. Indeed, plaintiff had significant neck and back pain due to injuries predating the accident, was found to have only nonspecific and mild pain after it, and was quickly cleared to return to work. Hendler's own examination of plaintiff was "completely normal," and he opined that plaintiff suffered no more than a neck or lower back sprain, or temporary aggravation of a prior condition that had fully resolved. Defendant thus met her initial burden as to all claimed categories of serious injury, thereby shifting the burden to plaintiff to raise a material question of fact (see Flisch v Walters, 42 AD3d 682, 683-684 [2007]; Snow v Harrington, 40 AD3d 1237, 1238 [2007]; Tuna v Babendererde, 32 AD3d 574, 575-576 [2006]).

We reject plaintiff's assertion that she demonstrated the existence of questions of fact with respect to the permanent consequential limitation and significant limitation of use categories of serious injury. Plaintiff relies upon the affidavits of physicians Ravi Ramaswami and David Gamberg as constituting the requisite "objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing [her] present limitations to the normal function, purpose and use of the affected body organ, member, function or system" (John v Engel, 2 AD3d 1027, 1029 [2003]; accord Clark v Basco, 83 AD3d 1136, 1138 [2011]; see Perl v Meher, 18 NY3d 208, 217 [2011]). Ramaswami, plaintiff's family physician, noted that MRIs of her spine revealed disc bulges and possible herniations, and opined that those conditions arose out of the automobile accident and left plaintiff permanently and significantly disabled. He did not, however, provide any explanation or objective medical basis for his belief that plaintiff's limitations were unrelated to her several prior complaints for which she had received extensive treatment (see Anderson v Capital Dist. Transp. Auth., 74 AD3d 1616, 1617 [2010], lv denied 15 NY3d 709 [2010]; Wolff v Schweitzer, 56 AD3d 859, 862 [2008]; cf. Perl v Meher, 18 NY3d at 219). Gamberg, a spine pain management specialist, found that plaintiff sustained injuries in the accident and also quantified how they significantly limited her range of motion. His affidavit is nonetheless inadequate, however, in that he wholly failed to address plaintiff's prior back condition and injuries; nor did he sufficiently describe the objective tests used to determine her limitations (see Franchini v Palmieri, 1 NY3d 536, 537 [2003]; Houston v Hofmann, 75 AD3d 1046, 1048-1049 [2010]; Sferra v McGregor, 69 AD3d 1200, 1202 [2010]). Accordingly, inasmuch as this evidence did not raise a material question of fact on the issue of whether plaintiff sustained a serious injury, Supreme Court properly granted defendant's motion.

Crawford-Reese v. Woodard


Calendar Date: March 23, 2012
Before: Rose, J.P., Spain, Malone Jr., Kavanagh and McCarthy, JJ.

Grasso, Rodriguez & Grasso, Schenectady (Christopher R. Burke of counsel), for appellant.
Horrigan, Horrigan & Lombardo, Amsterdam (Peter M. Califano of counsel), for respondent.

MEMORANDUM AND ORDER
Spain, J.

Appeal from an order of the Supreme Court (Kramer, J.), entered February 24, 2011 in Schenectady County, which granted defendant's motion for summary judgment dismissing the complaint.

Plaintiff commenced this action alleging that she sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of an October 2006 motor vehicle accident in the City of Schenectady, Schenectady County. Defendant — the driver of the vehicle that collided with plaintiff's vehicle — successfully moved for summary judgment dismissing the complaint. Plaintiff appeals, and we affirm.

"As the proponent of the summary judgment motion, defendant had the threshold burden of establishing by competent medical evidence that plaintiff did not sustain a serious injury caused by the accident" (Clark v Basco, 83 AD3d 1136, 1137 [2011] [citations omitted]; see MacMillan v Cleveland, 82 AD3d 1388, 1388 [2011]). Plaintiff limits her argument on appeal to the 90/180-day category, rendering all other categories of serious injury abandoned (see D'Auria v Kent, 80 AD3d 956, 957 n 2 [2011]; Mrozinski v St. John, 304 AD2d 950, 951 [2003]). Our review of the record satisfies us that defendant met his burden of establishing that plaintiff did not suffer, as a result of the accident, "'a medically determined injury or impairment of a non-permanent nature which prevent[ed] [her] from performing substantially all of the material acts which constitute [her] usual and customary daily activities' for at least 90 out of the 180 days immediately following the accident" (Hildenbrand v Chin, 52 AD3d 1164, 1166 [2008], quoting Insurance Law § 5102 [d]; see Bowen v Saratoga Springs City School Dist., 88 AD3d 1144, 1145 [2011]).

The police report reflects that no injuries were reported at the accident scene and, although plaintiff sought medical treatment at a hospital emergency room eight days later complaining of pain in her chest, neck, shoulder and right knee, radiology reports from the hospital indicate calcification and arthritic changes, with no acute fractures or malalignment. Thereafter, several times over the next few months, plaintiff sought medical treatment for various complaints, including chest, head, neck, arm, hip and knee pain, but no limitation of range of motion was documented in the months following her accident, nor were there any recommendations for limitations on plaintiff's work or activities. Diagnoses by various physicians who examined plaintiff during this period included muscle strain, tendinitis, mild arthritis, degenerative arthritis and obesity [FN1]. Two independent medical examinations conducted on plaintiff by different doctors in 2007 found no disabilities that would limit her work status or daily activities. Significantly, plaintiff could not remember whether she had been working at the time of the accident or enrolled as a student but, in any event, no evidence was submitted demonstrating that plaintiff missed any time from work or classes as a result of her injuries.

As this evidence was more than sufficient to establish a prima facie case that plaintiff did not suffer a 90/180-day serious injury, the burden shifted to plaintiff to raise a triable issue of fact (see Houston v Hofmann, 75 AD3d 1046, 1048 [2010]; Clark v Basco, 83 AD3d at 1138). Plaintiff submitted the affidavit and examination report of Michael Adamec, a chiropractor who treated plaintiff on September 15, 2010, almost four years after the accident. Adamec opined that, as the result of the 2006 accident, plaintiff suffered from a torn left bicep and various knee injuries that were not the result of common aging and which prevented plaintiff from performing all or substantially all of the material acts that constituted her usual and customary daily activities from the date of the accident going forward. Even viewing this evidence in the light most favorable to plaintiff, it is insufficient to raise a triable issue of fact under the 90/180-day serious injury category. Adamec's conclusory opinion that plaintiff's injuries limited her daily activities years prior to his examination is unsupported by any medical restrictions placed upon her during the 180 days following the accident (see Houston v Hofmann, 75 AD3d at 1049; Drexler v Melanson, 301 AD2d 916, 918-919 [2003]).

Further, although quantitative testing of an injury made years after an accident may be relevant to ascertain the severity of a permanent injury suffered by a plaintiff (see Perl v Meher, 18 NY3d 208, 217 [2011]), contemporaneous findings of injury are highly relevant to causation (see id. at 218) and to establishing the 90/180-day category of serious injury (see Houston v Hofmann, 75 AD3d at 1049; Tuna v Babendererde, 32 AD3d 574, 577 [2006]). As plaintiff did not come into Adamec's care until years later, he is not competent to discuss plaintiff's activities during the months immediately following the accident (see Tuna v Babendererde, 32 AD3d at 577). Accordingly, Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint.

Footnotes

Footnote 1: In 1994 plaintiff was found to be disabled within the meaning of the Social Security Act, based upon, among other things, degenerative disc disease of the lumbar spine and moderate obesity. Her medical history also includes a fractured sternum and left wrist as the result a motor vehicle accident in the late 1990s and whiplash in another motor vehicle accident, date unknown.

Shoreham-Wading River Central School District v. Maryland Cas. Co.


Steinberg & Cavaliere, LLP, White Plains, N.Y. (Steven A. Coploff of counsel), for appellant.
Hamburger, Maxson, Yaffe, Knauer & McNally, LLP, Melville, N.Y. (David N. Yaffe of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, for a judgment declaring that the defendant is obligated to defend and indemnify Shoreham-Wading River Central School District in an underlying action entitled Lawlor Consultants, Ltd. v Shoreham-Wading River Central School Dist., pending in the Supreme Court, Suffolk County, under Index No. 16191/05, the defendant appeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated December 6, 2010, which granted the plaintiff's motion for summary judgment declaring that it is so obligated, directing it to resume paying the reasonable costs of the plaintiff's defense, and dismissing its counterclaim to recover the costs it had incurred in defending the underlying action, and denied its cross motion for summary judgment on its counterclaim to recover the costs it had incurred in defending the underlying action, and, in effect, declaring that it was not obligated to defend and indemnify the plaintiff in the underlying action.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment, inter alia, declaring that the defendant is obligated to defend and indemnify the plaintiff in the underlying action.

In the action underlying the instant matter, the plaintiff school district (hereinafter the district) is alleged to have breached and anticipatorily repudiated a contract with a consultant pursuant to which the consultant was obligated to provide services to obtain additional state aid for the district in exchange for a payment of a percentage of the state aid ultimately received by the district for the years covered by the contract. The complaint in the underlying action seeks to recover damages "calculated on the basis of 10% of all additional state aid already received or to be received in the future" by the district for the years covered by the contract, subject to a contractual cap. The district tendered a request for a defense of the underlying action to the defendant pursuant to a liability insurance policy issued by the defendant. The defendant undertook the defense of the underlying action, subject to a reservation of rights. The defendant subsequently disclaimed coverage based upon, insofar as relevant here, Exclusion B of the subject policy, which bars coverage for "[a]ny Claim' based upon or attributable to the Insured' gaining any profit, advantage or remuneration to which the Insured' is not legally entitled." The defendant subsequently ceased paying defense costs related to the underlying action.

The district then commenced this action seeking a judgment declaring that the defendant is obligated to defend and indemnify it in the underlying action, and related injunctive relief. The defendant asserted a counterclaim to recover the costs it had already incurred in defending the underlying action on behalf of the district. The district moved for summary judgment on its causes of action for declaratory and injunctive relief and dismissing the counterclaim. The defendant cross-moved for summary judgment, in effect, declaring that it is not obligated to defend and indemnify the district, and on its counterclaim. The Supreme Court granted the district's motion and denied the cross motion, determining that Exclusion B did not apply to the allegations of the underlying complaint and, thus, the defendant was obligated to provide a defense and indemnification. The defendant appeals, and we affirm.

Exclusions from coverage must be strictly construed and read narrowly (see Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131, 137; Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311). "When an exclusion clause is relied upon to deny coverage, the burden rests upon the insurance company to demonstrate that the allegations of the complaint can be interpreted only to exclude coverage" (Town of Massena v Healthcare Underwriters Mut. Ins. Co., 98 NY2d 435, 444; see International Paper Co. v Continental Cas. Co., 35 NY2d 322, 325). The insurer bears the "heavy burden of demonstrating that the allegations of the complaint cast the pleadings wholly within that exclusion, that the exclusion is subject to no other reasonable interpretation, and that there is no possible factual or legal basis upon which the insurer may eventually be held obligated to indemnify the insured under any policy provision" (Frontier Insulation Contrs. v Merchants Mut. Ins. Co., 91 NY2d 169, 175; see Exeter Bldg. Corp. v Scottsdale Ins. Co., 79 AD3d 927, 929).

Here, the Supreme Court properly determined that Exclusion B does not apply to bar coverage for the underlying action. The plaintiff in the underlying action did not assert a claim based upon the district's acquisition of any profit, advantage, or remuneration to which it was not legally entitled, but seeks, as contractual damages, a percentage of the state aid which the district will ultimately receive for the years covered by the contract. There is no allegation that the district was not legally entitled to the state aid that it received. Contrary to the defendant's contention, the mere allegation in the complaint in the underlying action that the plaintiff therein is owed payment by the district does not bring the allegations of that complaint within the terms of Exclusion B (cf. National Union Fire Ins. Co. of Pittsburgh, Pa. v Town of Huntington, 215 AD2d 544). Accordingly, the Supreme Court properly granted the district's motion and denied the defendant's cross motion.

Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Suffolk County, for the entry of a judgment, inter alia, declaring that the defendant is obligated to defend and indemnify the plaintiff in the underlying action (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).

FC Bruckner Associates, L.P. v. Fireman's Fund Insurance Co


Herzfeld & Rubin, P.C., New York (David B. Hamm of counsel), for appellants.
Rivkin Radler LLP, Uniondale (Evan H. Krinick of counsel), for respondent.

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered May 26, 2011, which denied plaintiffs' motion for summary judgment seeking a declaration that defendant Fireman's Fund Insurance Company (FFIC) was obligated to defend and indemnify them under FFIC's excess policy in the underlying personal injury action, unanimously affirmed, with costs.

Plaintiffs, New York subsidiaries of Forest City Enterprises, Inc., an Ohio corporation, were insured under FFIC's excess policy issued to the parent corporation. They seek a declaration that FFIC was obligated to indemnify them in an underlying personal injury action that occurred in New York. At issue is a conflict between the laws of New York and Ohio on the subject of timely notice — the former providing (prior to the enactment of Insurance Law § 3420[a][5] [effective January 17, 2009]) that an insured's failure to provide timely notice of an occurrence is a material breach of the insurance contract vitiating coverage (see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436 [1972]), and the latter providing that when an insured gives late notice of a claim, there is a presumption of prejudice to the insurer and the claimant bears the burden of showing the absence of prejudice (Champion Spark Plug Co. v Fid. & Cas. Co., 116 Ohio App 3d 258, 268 [1996], lv denied 77 Ohio St 3d 1501 [1996]). Additionally, plaintiffs maintain that FFIC's notice of disclaimer was late and that they are entitled to the statutory timely-notice-of-disclaimer protection of New York Insurance Law § 3420(d). Thus, a conflict of laws analysis is necessary to determine which law applies.

Applying New York's "center of gravity" or "grouping of contacts" approach to choice-of-law questions in contract cases, Ohio law has the "most significant relationship to the transaction and the parties" (Matter of Midland Ins. Co., 16 NY3d 536, 543-44 [2011]). While the motion court incorrectly stated that FFIC is an Ohio company (it is domiciled in California), the only other contracting party is Forest City, plaintiffs' Ohio parent corporation. The insurance broker and third-party administrator are also located in Ohio, and the FFIC excess policy contained an Ohio-specific endorsement. Additionally, plaintiffs, who were not expressly named in the policy, derive their insured status under the FFIC excess policy's "Broad Named Insured" endorsement that extended coverage to "any present or future affiliates, subsidiaries (or subsidiaries thereof) controlled or associated company, corporations, or other legal entities." The record shows that FFIC's underwriting file includes references to Forest City properties in Texas, West Virginia and Michigan, as well as Ohio, indicating that the parties to the contract considered the principal location of the insured risk to be either Ohio or other states. "The governmental interests implicated by an insured's claim against an insurer of risks located in multiple states . . . weigh in favor of applying the law of the insured's domicile" (Certain Underwriters at Lloyd's, London v Foster Wheeler Corp., 36 AD3d 17, 22-23 [2006], affd 9 NY3d 928 [2007]).

Plaintiffs argue that New York law must apply because they have their places of business in New York and the accident happened in New York. However, as we noted in Foster Wheeler with respect to a choice-of-law analysis for insurance policies covering multistate risks, "[t]he state of the insured's domicile is a fact known to the parties at the time of contracting, and (in the absence of a contractual choice-of-law provision) application of the law of that state is most likely to conform to their expectations" (id. at 23; see also Steadfast Ins. Co. v Sentinel Real Estate Corp., 283 AD2d 44, 50 [2001] ["Given the nationwide scope of Sentinel's operations, the principal location of the insured risk should be deemed to be the state where Sentinel is incorporated and has its principal place of business"]). That any number of Forest City subsidiaries, located in different states, could be insureds under this policy weighs against plaintiffs' argument that, because they are New York companies and the accident occurred in this state, New York law should be applied in this instance.
"If [plaintiffs'] position were accepted, the result would be a single policy governed by the laws of different states — precisely what Foster Wheeler sought to avoid. Moreover, applying multiple states' laws to the enforcement of a single insurance policy defies . . . the law . . . as well as the traditional concerns of judicial economy and uniformity.'" (Wausau Bus. Ins. Co., v Horizon Admin. Servs., LLC, 803 F Supp 2d 209, 216 [ED NY 2011] [citation omitted]).

Furthermore, it is unavailing for plaintiffs to argue that the policy was issued for delivery in this state pursuant to Insurance Law § 3420(d). While plaintiffs are insureds under the policy, they are not specified or expressly mentioned in the policy (see TIG Ins. Co. v Martin, 2003 WL 25796732 [ED NY 2003] [where policy issued by Texas insurer to Indiana insured, and occurrence was at New York baseball camp, policy not issued for delivery in New York where policy was not specific to New York camp or to other work in New York]; compare Columbia Cas. Co. v National Emergency Servs., 282 AD2d 346 [2001] [policy deemed issued for delivery in New York where it expressly covered insureds and risks located in New York]; American Ref-Fuel Co. of Hempstead v Employers Ins. Co. of Wausau, 265 AD2d 49 [2000] [policies were issued for delivery in New York where policies listed, as named insured, a New York corporation]). Thus, we conclude that Ohio law governs this dispute (Matter of Midland Ins. Co. at 544; Matter of Allstate Ins. Co. [Stolarz-New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 227 [1993]).

State Farm Mutual v. Hernandez


Richard T. Lau & Associates, Jericho (Joseph G. Gallo of counsel), for appellant.
Lester Schwab Katz & Dwyer, LLP, New York (Howard R. Cohen of counsel), for respondent.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered August 24, 2011, which, to the extent appealed from, denied the petition seeking a permanent stay of arbitration of an uninsured motorist claim, and dismissed the proceeding brought pursuant to CPLR article 75, unanimously modified, on the law, to reinstate the proceeding, grant petitioner's alternative request for a temporary stay of arbitration pending a determination regarding the insurance coverage of the alleged uninsured motorist, remand the matter to the Supreme Court for proceedings consistent with this order, and otherwise affirmed, without costs.

Respondent Hernandez, a New York resident, was involved in an accident in New Jersey with a Freightliner tractor trailer driven by additional respondent Byron. Hernandez filed a demand with the American Arbitration Association against petitioner State Farm Mutual Automobile Insurance Company, her insurer, seeking to arbitrate her uninsured motorist claim. State Farm reported the claim to additional respondent Lincoln General Insurance Company, which had issued a policy to the Association of Independent Drivers of America. Byron is a certificate holder of the policy. Lincoln General disclaimed coverage on the ground that Byron was engaged in a business pursuit at the time of the accident. It invoked an exclusion in its "non-trucking" policy, which excluded from coverage an insured vehicle that was being used for a business purpose.

State Farm, relying on Royal Indem. Co. v Providence Washington Ins. Co. (92 NY2d 653 [1998]), argues that the exclusion is void as against public policy, as it violates New York law provisions requiring owners or operators of vehicles used or operated in this state to be financially liable for injuries or damages caused by an accident arising out of use of the vehicle (see Vehicle and Traffic Law § 388[1]; Insurance Law § 3420[e]). Lincoln General counters with an argument raised for the first time on appeal, that New York law does not apply in interpreting the policy. Lincoln General contends the accident occurred in New Jersey, Lincoln General is located in Pennsylvania, the Association of Independent Drivers of America is located in Florida, the owner of the truck is located in Texas, Byron was hauling a trailer owned by a Texas corporation, and Byron resides in Texas.

Although Lincoln General asserts on appeal that the truck is not principally garaged or used in New York, there is no evidence in the record to support that claim. Moreover, Lincoln General has not indicated where the policy was issued or delivered or where the truck was principally operated or garaged. As such, the record is insufficient to determine whether New York law is inapplicable. Accordingly, we remand the matter to Supreme Court for a determination of Byron's insurance status (see Matter of Aetna Cas. & Sur. Co. [Bruton], 45 NY2d 871 [1978], revg on the dissenting opinion at 58 AD2d 551, 553-554 [1977]; Matter of American Intl. Adj. Co. [Walker], 111 AD2d 684 [1985]). In addition to issues it deems necessary to make such a determination, the court is to determine whether New York law applies in interpreting Lincoln General's policy. If New York law governs, then Lincoln General's policy is to be interpreted
in accordance with Royal Indem. Co. v Providence Washington Ins. Co. (92 NY2d 653 [1998], supra). If the court determines that the laws of a state other than New York apply, then it must also be determined whether the trucking exclusion bars coverage to  Byron under that state's law.

Beneficial Homeowner Service Corporation v Mason

Calendar Date: March 22, 2012
Before: Mercure, J.P., Spain, Stein, Garry and Egan Jr., JJ.

Konstanty Law Office, Oneonta (James E. Konstanty of counsel), for appellants.
Phillips Lytle, L.L.P., New York City (Andrew J. Wells of counsel), for respondent.
MEMORANDUM AND ORDER

Mercure, J.P.
Appeal from an order of the Supreme Court (Becker, J.), entered June 15, 2011 in Delaware County, which granted plaintiff's motion to dismiss defendants' counterclaims.

In 2009, Kevin D. Mason (hereinafter decedent) purchased a mortgage life insurance policy from First Central Life Insurance Company to cover the balance due to plaintiff under a mortgage agreement between plaintiff and decedent in the event of his death. When decedent died shortly thereafter, First Central refused to pay benefits under the policy. Defendant Michele Mason, the administrator of decedent's estate, then commenced a breach of contract action against First Central (hereinafter the First Central action).

While the First Central action was pending, plaintiff commenced the instant action to foreclose on the mortgage. Defendants (including Mason) answered, asserting three counterclaims alleging breach of contract, punitive damages, and breach of implied covenant of good faith and fair dealing. Supreme Court (Reynolds Fitzgerald, J.) thereafter granted First Central's motion to dismiss the complaint in the First Central action, and Mason appealed. While the appeal in the First Central action was pending, plaintiff moved to dismiss defendants' counterclaims in the instant action, asserting that they were barred by collateral estoppel based upon Supreme Court's dismissal of the same claims in the First Central action. Supreme Court granted the motion and dismissed the counterclaims in this case.

Thereafter, this Court reversed the decision in the First Central action and reinstated the first cause of action for breach of contract (Mason v First Cent. Natl. Life Ins. Co. of N.Y., 86 AD3d 854 [2011]). Defendants now appeal from Supreme Court's order dismissing the counterclaims in the instant action, arguing that the counterclaims are no longer collaterally estopped because the order in the First Central action has been reversed.

Defendants have failed to demonstrate any error in the dismissal of their counterclaims on collateral estoppel grounds, inasmuch as it is undisputed that, at the time Supreme Court issued the order on appeal here, the same allegations had already been considered and rejected in the First Central action after a full and fair opportunity to litigate the issues (see Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). To the extent that defendants argue that this Court's subsequent reversal of that order requires reinstatement of their counterclaims in this action, that argument is not properly before us in the absence of an application by defendants to the issuing court for relief pursuant to CPLR 5015 (a) (5) (see Estate of Gardner v Carson, 295 AD2d 709, 710 [2002]; see also Commissioner of Labor of State of N.Y. v Hinman, 103 AD2d 886, 886 [1984], appeal dismissed 64 NY2d 756 [1984]; cf. Halpern v Amtorg Trading Corp., 292 NY 42, 48-49 [1944]).[FN1]
Footnotes

Footnote 1:There is no specific time limitation for the making of a motion pursuant to CPLR 5015 (a) (5); a reasonable time is implied (see Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5015:3, at 205-206).

DaimlerChrysler Insurance Company v Jenneman


Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., and John W. Persons of counsel), for appellant.
Gordon & Haffner, LLP, Harrison, N.Y. (David Gordon of counsel), for respondent.

DECISION & ORDER

In an action to recover a settlement payment made in an underlying action to recover damages for wrongful death, the defendant appeals from an order of the Supreme Court, Suffolk County (Farneti, J.), dated May 5, 2010, which granted the plaintiff's motion for summary judgment on the complaint.

ORDERED that the order is affirmed, with costs.

The defendant, Leslie W. Jenneman, leased a Jeep Grand Cherokee from nonparty DCFS Trust. The plaintiff, DaimlerChrysler Insurance Company, as subrogee of DCFS Trust, provided insurance coverage to DCFS Trust. While driving the Grand Cherokee on November 20, 2002, Jenneman struck and killed a pedestrian. She was convicted of manslaughter in the second degree, and this Court affirmed (see People v Jenneman, 37 AD3d 736). The pedestrian's estate sued Jenneman and DCFS Trust for wrongful death, and that case was settled for $200,000. The plaintiff paid $100,000 of that settlement and subsequently commenced this action against Jenneman to recover the sum it paid toward the settlement, alleging that it became subrogated to DCFS Trust's right to common-law indemnification from Jenneman. The plaintiff moved for summary judgment on the complaint on the ground that Jenneman's affirmed conviction entitled it to judgment as a matter of law. In an order dated May 5, 2010, the Supreme Court granted the plaintiff's motion for summary judgment on the complaint. Jenneman appeals, and we affirm.

"[T]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is a separate duty owed to the indemnitee by the indemnitor'" (Raquet v Braun, 90 NY2d 177, 183, quoting Mas v Two Bridges Assoc., 75 NY2d 680, 690). Indemnity "may be based upon an express contract, but more commonly the indemnity obligation is implied . . . based upon the law's notion of what is fair and proper as between the parties" (Mas v Two Bridges Assoc., 75 NY2d at 690). "Where a criminal conviction is based upon facts identical to those in issue in a related civil action, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted defendant from relitigating the issue of . . . liability" (McDonald v McDonald, 193 AD2d 590, 590; see City of New York v College Point Sports Assn. Inc., 61 AD3d 33, 41).

Here, the plaintiff established, prima facie, that collateral estoppel effect should be given to Jenneman's conviction, and that, as subrogee of DCFS Trust, it is entitled to common-law indemnification from her (see Blaich v Van Herwynen, 37 AD3d 387). In opposition, Jenneman failed to raise a triable issue of fact. Therefore, the Supreme Court properly granted the plaintiff's motion for summary judgment on the complaint.

Jenneman's remaining contentions are without merit.

 Grant P/N/G Munoz v Nembhard

Calendar Date: March 20, 2012
Before: Mercure, J.P., Lahtinen, Spain, McCarthy and Garry, JJ.

O'Connor, McGuinness, Conte, Doyle, Oleson, Watson & Loftus, White Plains (Montgomery L. Effinger of counsel), for appellant-respondent.
John T. Casey Jr., Troy (Joseph E. O'Connor of counsel), for Kenietra Grant, respondent-appellant.
Morris, Duffy, Alonso & Faley, New York City (Anna J. Ervolina of counsel), for Estevan W. Nembhard, respondent-appellant.
Spiegel, Brown, Fichera & Cote, Poughkeepsie (Timothy W. Kramer of counsel), for Sharnique L. Reynolds, respondent.
Thorn, Gerson, Tymann, Bonanni, L.L.P., Albany (Harry Steinberg of Lester, Schwab, Katz & Dwyer, New York City, of counsel), for Service Employees International Union, respondent.
MEMORANDUM AND ORDER

Lahtinen, J.
Cross appeals from an order of the Supreme Court (Zwack, J.), entered September 12, 2011 in Ulster County, which, among other things, granted defendant Sharnique L. Reynolds' motion for summary judgment dismissing the complaint against her.

This case arises from a motor vehicle accident that occurred on May 11, 2008, shortly before 4:00 A.M., on the northbound side of Interstate 87 in the Town of Tuxedo, Orange County. Defendant Sharnique L. Reynolds was traveling north and, shortly after allegedly passing a rest stop, she pulled the vehicle she was driving onto the shoulder and stopped because she had a headache and was drowsy. A vehicle driven by defendant Estevan W. Nembhard, and co-owned by his mother, defendant Lydia Tyner, struck Reynolds' parked vehicle from behind. Plaintiff's infant daughter was seated in the rear driver's side of Reynolds' vehicle and allegedly sustained catastrophic permanent injuries in the accident.

Plaintiff commenced the instant action on behalf of herself [FN1] and her child against Nembhard, Tyner and Reynolds. She subsequently amended her complaint to, among other things, add Nembhard's employer, defendant Service Employees International Union (hereinafter SEIU), upon the theory that Nembhard was acting within the scope of his employment when the accident occurred. Following disclosure, numerous motions were filed by the respective parties including, as relevant to this appeal, Reynolds' motion for summary judgment dismissing all claims against her, plaintiff's motion for partial summary judgment on the issue of liability against Nembhard, Tyner and SEIU, Tyner's cross motion for indemnification from Nembhard, and SEIU's cross motion for summary judgment dismissing claims against it. Supreme Court, among other things, granted Reynolds' motion, did not directly address and thus denied sub silento the aspect of plaintiff's motion for partial summary judgment as to Nembhard and Tyner, granted Tyner's cross motion and granted SEIU's cross motion. Plaintiff, Nembhard and Tyner appeal.

We consider first the argument of plaintiff, Nembhard and Tyner that it was error to grant Reynolds' motion for summary judgment dismissing all claims against her. Supreme Court found factual issues as to whether the manner in which Reynolds parked on the shoulder of the highway was negligent, but further determined that her car merely furnished the condition for the occurrence and was not a proximate cause of the accident. We agree with Supreme Court that there was ample evidence, when viewed mostly favorably to the parties opposing summary disposition, to raise a factual issue regarding Reynolds' negligence. We further find, however, that factual issues exist regarding proximate cause. "Proximate cause is ordinarily a factual issue for resolution by a jury and therefore it is 'only [when] one conclusion may be drawn from the established facts [that] the question of legal cause [may] be decided as a matter of law'" (Dupell v Levesque, 198 AD2d 712, 713 [1993], quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). As discussed at some length by the First Department in an analogous case where a driver fell asleep and hit a vehicle allegedly parked in violation of a highway rule, the issue is a close one, but it generally should be resolved by a jury (see White v Diaz, 49 AD3d 134, 134-140 [2008]; but see Iqbal v Thai, 83 AD3d 897, 898 [2011]). Simply stated, a reasonable jury could find that an accident of this type is a foreseeable consequence of parking on the shoulder just north of a rest area for a non-emergency reason in violation of a traffic regulation (see 21 NYCRR 103.8 [b]) without activating the vehicle's hazard lights in the dark early morning hours (see White v Diaz, 49 AD3d at 139; see generally Dowling v Consolidated Carriers Corp., 65 NY2d 799 [1985]; Ferrer v Harris, 55 NY2d 285, 293-294 [1982]; O'Connor v Pecoraro, 141 AD2d 443, 445 [1988]).

Plaintiff contends that she should have been granted partial summary judgment on the issue of liability as against Nembhard and Tyner [FN2]. We agree. "Where a moving vehicle is involved in a rear-end collision with a stopped vehicle, a prima facie case of negligence arises against the operator of the moving vehicle, requiring that driver to provide an adequate, nonnegligent explanation for the collision" (Johnson v First Student, Inc., 54 AD3d 492, 492-493 [2008] [citations omitted]). An eyewitness who followed Nembhard's vehicle for about 15 miles testified at a deposition that Nembhard was repeatedly swerving, so much so that the witness called 911, and he believed that Nembhard might be intoxicated. Although Nembhard was not intoxicated, he acknowledged extreme drowsiness and reportedly stated at the scene that he had fallen asleep while driving. This evidence established a prima facie case of negligence that was a proximate cause of the accident. Faced with this proof, Nembhard failed to offer a nonnegligent explanation for the accident (see Rodriguez-Johnson v Hunt, 279 AD2d 781, 782 [2001]).

Contrary to Tyner's contention, the existence of a factual issue regarding Reynolds' negligence does not preclude a finding that Nembhard was, as a matter of law, negligent and that his negligence was a proximate cause of the accident. "'[T]here may be more than one proximate cause of an accident'" (Bailey v County of Tioga, 77 AD3d 1251, 1253 [2010], quoting Ayotte v Gervasio, 186 AD2d 963, 964 [1992], affd 81 NY2d 1062 [1993]). If a jury ultimately finds that Reynolds was also negligent and that her negligence was a substantial factor in causing the accident, then it will determine a percentage of fault for her and Nembhard (see 1A NY PJI 2:36). However, if either issue is answered in the negative regarding Reynolds, no such percentage determination will be necessary. It is clear that Reynolds could not be found 100% responsible and it is undisputed that the seriously injured infant has no culpable conduct as a matter of law.

Questions of fact exist in this record as to whether Nembhard was acting within the scope of his employment with SEIU when the accident occurred. "Although an employee is not ordinarily acting within the 'scope of employment' when traveling to and from work, exceptions to the rule [include where] . . . the vehicle is being utilized in furtherance of the employer's enterprise" (McBride v County of Schenectady, 110 AD2d 1000, 1001 [1985] [citations omitted]; see Lundberg v State of New York, 25 NY2d 467, 471 [1969]; Davis v Larhette, 39 AD3d 693, 694 [2007]; Makoske v Lombardy, 47 AD2d 284, 288 [1975], affd 39 NY2d 773 [1976]). While significant conflicting proof was presented, there was evidence that Nembhard did not work regular hours at his job as a union organizer and that he was essentially on-call at all times. He traveled using his own vehicle, for which he was reimbursed mileage to and from his residence, and he often would meet with prospective union members at whatever hours or places were convenient to their schedules. Prior to the accident, he had left his hotel in Milford, Connecticut at about midnight and traveled to Bridgeport, Connecticut, where prospective union members who were employees of a nursing home were having a barbeque. He reportedly talked to attendees about the benefits of union membership and solicited names of other employees at the nursing home who might be interested in unionizing. From there, he headed toward where he claimed he resided with his grandparents in Grahamsville, Sullivan County, and the unfortunate accident occurred during this trip. The proof was sufficient to avoid summary dismissal of SEIU from the action (see McBride v County of Schenectady, 110 AD2d at 1001).

Finally, Nembhard's argument that the policy underlying Vehicle and Traffic Law § 388 is derogated by permitting Tyner indemnification from him or that Supreme Court otherwise erred in granting such relief is unpersuasive (see generally Morris v Snappy Car Rental, 84 NY2d 21, 28-29 [1994]).

Mercure, J.P., Spain, McCarthy and Garry, JJ., concur.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as (1) granted defendant Sharnique L. Reynolds' motion for summary judgment dismissing the complaint against her, (2) granted the cross motion of defendant Service Employees International Union for summary judgment dismissing the complaint against it, and (3) denied plaintiff's motion for partial summary judgment on the issue of the liability of defendant Estevan W. Nembhard and Lydia Tyner; said motion and cross motion of Reynolds and Service Employees International Union denied, and said motion of plaintiff granted to that extent; and, as so modified, affirmed.

Footnotes

Footnote 1:Plaintiff's claim for her own personal injuries was dismissed upon the ground that she did not sustain a serious injury as defined by Insurance Law § 5102 (d).

Footnote 2:Tyner's assertion that this issue is not properly before us is without merit. Supreme Court had before it seven motions from the parties asserting a plethora of issues. It mentioned but did not directly discuss this issue. However, the issue was specifically and clearly raised by plaintiff in her motion papers and Supreme Court did not grant the relief sought. The issue is thus properly before us.

In the Matter of Ricardo L. Sucheron


Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola, N.Y. (Norman H. Dachs and Jonathan A. Dachs of counsel), for nonparty-respondent.

DECISION & ORDER

In a proceeding, inter alia, for judicial authorization to compromise and settle an action to recover damages for personal injuries and wrongful death, nonparty Robert Alan Saasto appeals, as limited by his brief, from (1) so much of a decree of the Surrogate's Court, Nassau County (Riordan, S.), entered October 21, 2010, as awarded him the sum of only $62,220.78, representing 65% of a net contingent attorney's fee, and awarded nonparty Cassisi & Cassisi, P.C., the sum of $33,503.50, representing 35% of the net contingent attorney's fee, and (2) so much of an order of the same court (McCarty III, J.), dated February 23, 2011, as, upon reargument, adhered to so much of the decree as awarded him the sum of only $62,220.78, representing 65% of the net contingent attorney's fee and awarded nonparty Cassisi & Cassisi, P.C., the sum of $33,503.50, representing 35% of the net contingent attorney's fee.

ORDERED that the decree is reversed insofar as appealed from, on the facts and in the exercise of discretion, nonparty Robert Alan Saasto is awarded 90% of the net contingent attorney's fee and nonparty Cassisi & Cassisi, P.C., is awarded 10% of the net contingent attorney's fee, the order is vacated, and the matter is remitted to the Surrogate's Court, Nassau County, for the entry of an amended decree in accordance herewith; and it is further,

ORDERED that the appeal from the order is dismissed as academic in light of our determination on the appeal from the decree; and it is further,

ORDERED that one bill of costs is awarded to the appellant.

After 56-year-old Ricardo L. Sucheron (hereinafter the decedent) was struck by a bus and killed on March 18, 2007, while riding his bicycle on Route 2 in Connecticut, his mother (hereinafter the petitioner) retained nonparty Cassisi & Cassisi, P.C. (hereinafter Cassisi), under a contingency fee agreement to represent her as the administrator of the decedent's estate.

Cassisi commenced an administration proceeding in the Surrogate's Court, Nassau County, and an action to recover damages for wrongful death and personal injuries in the same court against the bus company, its principal, and the operator of the bus (hereinafter collectively the defendants), all of whom were domiciled in Connecticut (hereinafter the Nassau County action).

On December 27, 2007, Cassisi obtained a settlement offer in the Nassau County action from the defendants' insurance company in the sum of $150,000, which Cassisi advised the petitioner to accept. As the accident report had yet to be obtained, the petitioner rejected the offer and on January 29, 2008, replaced Cassisi as her counsel with nonparty Robert Alan Saasto (hereinafter the appellant) under a similar contingency agreement.

After the Supreme Court granted the defendants' motion to dismiss the Nassau County action without prejudice on the ground of forum non conveniens, Saasto commenced an action seeking the same relief against the defendants in the New London, Connecticut Superior Court (hereinafter the Connecticut action). On June 11, 2010, Saasto obtained a settlement offer from the defendants' insurance company in the sum of $300,000, which the petitioner accepted and presented to the Surrogate's Court for judicial approval, along with a request to fix the total amount of attorneys' fees in the sum of $96,541.39 and to apportion the fees between Cassisi and Saasto.

Notwithstanding that the Surrogate's Court has the "ultimate responsibility of deciding what constitutes reasonable legal compensation, regardless of the existence of a retainer agreement" (Matter of Nicastro, 186 AD2d 805, 805 [citation omitted]; see Matter of Talbot, 84 AD3d 967; Matter of Massey, 73 AD3d 1179; Matter of Piterniak, 38 AD3d 780, 781), the award to Cassisi, which represented 35% of the net contingent attorney's fee, was an improvident exercise of discretion.

"In evaluating what constitutes a reasonable attorney's fee, factors to be considered include the time and labor expended, the difficulty of the questions involved and the required skill to handle the problems presented, the attorney's experience, ability, and reputation, the amount involved, the customary fee charged for such services, and the results obtained'" (Matter of Talbot, 84 AD3d at 967-968, quoting Matter of Szkambara, 53 AD3d 502, 502—503; see Matter of Freeman, 34 NY2d 1, 9; Matter of Mero, 62 AD3d 1003, 1004).

In addition to commencing an administration proceeding in the Surrogate's Court, Cassisi commenced an action to recover damages for wrongful death and personal injuries in the Supreme Court, Nassau County, which resulted in a settlement offer of $150,000 from the defendants' insurance company two months later. After the petitioner retained Saasto in place of Cassisi, Saasto opposed the defendants' motion to dismiss the Nassau County action, commenced an action in the New London, Connecticut Superior Court after the Nassau County action was dismissed on the ground of forum non conveniens, interviewed and retained local counsel in Connecticut, regularly appeared in the Connecticut proceedings, conducted and defended extensive discovery, and retained an expert in accident reconstruction who investigated the accident scene and prepared a report. Saasto also prepared comprehensive submissions for court-ordered mediation in the Connecticut action, which he attended with the petitioner and her family, and interviewed the witness to the accident named in the police report and the Connecticut Medical Examiner.

Based on the foregoing evidence, which was amply supported by the record, a reduction in the amount of the net contingent attorney's fee awarded to Cassisi from 35% to 10% is appropriate, with a corresponding increase in the amount awarded to Saasto from 65% to 90% (see Matter of Bitzer, 208 AD2d 723).
Saasto's remaining contention is without merit.

Dookie v Astoria Federal Savings


Bonner Kiernan Trebach & Crociata, LLP, New York, N.Y. (Scott H. Goldstein of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Dolan, J.), dated February 18, 2010, as granted that branch of the defendant's motion which for summary judgment dismissing the cause of action to recover damages for breach of contract.

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

The plaintiff obtained a mortgage from the defendant, Astoria Federal Savings Bank to purchase a multiple-family building, pursuant to which mortgage, the plaintiff was responsible for procuring fire insurance. The plaintiff, initially, did procure fire and other insurance and also paid the defendant, monthly, one-twelfth of the amount of the insurance premium to assure future payment of premiums. The mortgage provided that, in the event of a lapse in insurance, the defendant was permitted to procure insurance for the plaintiff, but was not obligated to do so. After one year, the insurance initially procured by the plaintiff was not renewed by the insurance carrier. The plaintiff thereafter procured other insurance, but upon terms which he claimed were less favorable.

After a fire destroyed the subject property, the plaintiff commenced an action against the defendant alleging, among other things, breach of contract, claiming, inter alia, that the defendant breached its contractual obligation to pay the premium to the original insurer, resulting in the nonrenewal of that policy. The Supreme Court granted the defendant's motion for summary judgment, inter alia, dismissing the cause of action to recover damages for breach of contract.

"In the absence of an agreement to the contrary, the mortgagee is under no obligation to insure the mortgaged premises" (Beckford v Empire Mut. Ins. Group, 135 AD2d 228, 232; see Gurreri v Associates Ins. Co., 248 AD2d 356). Here, the original insurer delivered a renewal notice to the plaintiff which stated that "THERE ARE NO AUTOMATIC RENEWALS," and which informed him that, in order to secure a renewal, the plaintiff had to sign the renewal form and expressly check off a box next to a statement that he desired renewal. Since the defendant submitted evidence on its motion that renewal required an active decision by the plaintiff as to whether he wanted to continue his relationship with this insurer, and also submitted the parties' mortgage documents, which stated that the defendant had no contractual obligation to procure insurance in the event of a lapse, the Supreme Court properly determined that the defendant satisfied its prima facie burden of establishing its entitlement to judgment as a matter of law and that, in opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action to recover damages for breach of contract.

Bermingham v Liberatore Family Limited Partnership

Appeal from an order of the Supreme Court, Erie County (Timothy J. Drury, J.), entered February 7, 2011. The order, among other things, granted the motion of third-party defendant for leave to renew his cross motion for summary judgment, and upon renewal, adhered to the prior determination denying that cross motion.

Kenney Shelton Liptak Nowak LLP, Buffalo (Amanda L. Machacek Of Counsel), For Third-Party Defendant-Appellant.
Cohen & Lombardo, P.C., Buffalo (James J. Nash Of Counsel), For Third-Party Plaintiff-Respondent.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting third-party defendant's cross motion in part and dismissing the claim for contribution, and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when she allegedly slipped and fell on black ice in a parking lot owned by defendant-third-party plaintiff (defendant). Defendant commenced the third-party action, asserting claims for, inter alia, common-law indemnification and contribution. Supreme Court denied defendant's motion seeking a conditional order of common-law indemnification against third-party defendant, its snow removal contractor, and denied third-party defendant's cross motion seeking summary judgment dismissing the third-party complaint. The third-party action was severed from the main action and, following the trial of the main action, third-party defendant moved for leave to renew his cross motion. Although the court purportedly denied the motion for leave to renew, it is apparent from the decision that the court actually granted the motion and, upon renewal, adhered to its original decision.

We conclude that the court, upon renewal, properly refused to dismiss the common-law indemnification claim. Even assuming, arguendo, that third-party defendant requested such relief in his cross motion and thus that the issue is properly before us (cf. Oneida Indian Nation v Hunt Constr. Group, Inc., 88 AD3d 1264, 1266), we conclude that he failed to meet his initial burden of establishing that plaintiff's accident was not attributable to his negligent performance or nonperformance of an act solely within his province under the contract with defendant (see Abramowitz v Home Depot USA, Inc., 79 AD3d 675, 677; Trzaska v Allied Frozen Stor., Inc., 77 AD3d 1291, 1293). Contrary to third-party defendant's contention, we further conclude that neither the testimony at the trial of the main action nor the jury verdict following that trial establishes that defendant's liability was other than vicarious, i.e., that defendant was actively negligent (see generally Eastman v Volpi Mfg. USA, Co., 229 AD2d 913, 913).

The court erred upon renewal, however, in denying that part of third-party defendant's cross motion seeking summary judgment dismissing the contribution claim. Third-party defendant met his initial burden of establishing that he did not owe a duty to plaintiff or a duty to defendant independent of the contract (see Siegl v New Plan Excel Realty Trust, Inc., 84 AD3d 1702, 1703; Zemotel v Jeld-Wen, Inc., 50 AD3d 1586, 1587). Third-party defendant further established that his contract with defendant was not "a comprehensive and exclusive agreement which entirely displaced [defendant's] duty to maintain the premises in a safe condition" (Foster v Herbert Slepoy Corp., 76 AD3d 210, 214; see Espinal v Melville Snow Contrs., 98 NY2d 136, 140-141). Defendant failed to raise a triable issue of fact in opposition to that part of the cross motion (see Henriquez v Inserra Supermarkets, Inc., 89 AD3d 899, 901). We therefore modify the order accordingly.

Lavy v. Zaman


Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for appellant.
Zalman Schnurman & Miner P.C., New York (Marc H. Miner of counsel), for respondent.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about October 19, 2011, which, inter alia, denied Mohammadulla Zaman's (defendant) motion for summary judgment dismissing the complaint alleging a "fracture" under Insurance Law § 5102(d), unanimously affirmed, without costs.

Plaintiff allegedly sustained a nasal fracture when a cab in which she was a passenger rear-ended another vehicle, causing her face to hit the partition between the front and rear seats of the cab.

Defendant failed to meet his prima facie burden of establishing that plaintiff did not sustain a nasal fracture as a result of the accident. In any event defendant's expert acknowledged that his review of the emergency room records shows that the hospital had clinically diagnosed plaintiff with a nasal fracture, thereby raising issues of fact (see Suazo v Brown, 88 AD3d 602 [2011]; Elias v Mahlah, 58 AD3d 434 [2009]).

Gordon v. Blaha


Mikhail Ilyaich & Associates, P.C., Rosedale, N.Y. (Michael A. Stea of counsel), for appellant.
Richard T. Lau, Jericho, N.Y. (Kathleen E. Fioretti 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 (Lane, J.), entered March 30, 2011, 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) as a result of the subject accident.

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 defendant provided competent medical evidence establishing, prima facie, that the alleged injuries to the lumbosacral region of the plaintiff's spine 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 plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

Il Chung Lim v. Chrabaszcz


Sim & Park, LLP, New York, N.Y. (Marc Andrew Williams of counsel), for appellant.
Richard T. Lau, Jericho, N.Y. (Linda Meisler 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 (Siegal, J.), entered April 5, 2011, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

Although the plaintiff alleged that he sustained certain injuries to his left knee as a result of the subject accident, the defendant submitted competent medical evidence establishing, prima facie, that those alleged injuries did not constitute a serious injury within the meaning of Insurance Law § 5102(d) and, in any event, were not caused by the subject accident but, instead, were degenerative in nature (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Torres v Posy, 92 AD3d 676; Jilani v Palmer, 83 AD3d 786; Staff v Yshua, 59 AD3d 614).

In opposition, the plaintiff failed to raise a triable issue of fact. The approximate 13% limitation in range of motion of the left knee noted by the plaintiff's treating physician, Dr. Benjamin Chang, on his most recent examination of the plaintiff on December 3, 2010, was insignificant within the meaning of the no-fault statute (see McLoud v Reyes, 82 AD3d 848, 849). In any event, the plaintiff's submissions were insufficient to raise a triable issue of fact to rebut the finding of the defendant's radiologist that the injuries depicted in the magnetic resonance imaging (hereinafter MRI) films of his left knee were degenerative in nature and unrelated to the subject accident. Neither the plaintiff's radiologist nor Dr. Chang addressed the findings of the defendant's radiologist pertaining to the degenerative nature of the plaintiff's left knee injuries, and Dr. Chang's conclusion that, based upon a review of the uncertified MRI report, the subject injuries were caused by the accident and were not degenerative in nature, was speculative and insufficient to raise a triable issue of fact (see Mensah v Badu, 68 AD3d 945, 946; Ortega v Maldonado, 38 AD3d 388).

Finally, the plaintiff failed to submit competent medical evidence that the injuries he allegedly sustained as a result of the subject accident rendered him unable to perform substantially all of his daily activities for not less than 90 days of the first 180 days thereafter (see Mensah v Badu, 68 AD3d at 946). The plaintiff admitted in his supplemental bill of particulars that he was incapacitated as a result of the accident for only two days. He further failed to dispute his admission to the defendant's orthopedist that the accident caused him to lose only two days of work as a limousine driver.

Accordingly, the Supreme Court correctly granted the defendant's motion for summary judgment dismissing the complaint.

Ramkalawon v. Correa


The Edelsteins, Faegenburg & Brown, New York, N.Y. (Louis A. Badalato and Paul Edelstein of counsel), for appellant.
Litchfield Cavo LLP, New York, N.Y. (Victor A. Vicenzi 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, Dutchess County (Pagones, J.), dated July 12, 2011, 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) as a result of the subject accident.
ORDERED that the order is affirmed, with costs.

The defendant met her 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 defendant provided competent medical evidence establishing, prima facie, that the alleged injuries to the lumbosacral region of the plaintiff's spine 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 plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

Smith v. Trampe


Mark E. Weinberger, P.C., Rockville Centre, N.Y. (Marc J. Musman of counsel), for appellant.
Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Mitchell L. Kaufman of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), entered June 10, 2011, as granted the defendant's 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) as a result of the subject accident.

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

The defendant met her 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 879 955, 956-957). However, in opposition, the plaintiff submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to her right shoulder constituted a serious injury under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102(d) (see Perl v Meher, 18 NY3d 208, 215-218; Livia v Atkins, 93 AD3d 766). Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.