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Coverage Pointers - Volume XIII, No. 9

Dear Coverage Pointers Subscribers:

Greetings from an Amtrak train between Washington DC (where I have been attending the DRI Annual Meeting) and NYC (where I will be arguing an appeal in the Second Department).  A special greeting to those I met at the CPCU meeting in Las Vegas last week; particularly to those who stopped by to see me before and during my participation in the Coverage Conundrums presentation.

Taveras – Trial Level Bad Faith Decision Reported

The big buzz around the state is the $2,500,000 – and very rare -- bad faith decision handed down by a trial level court last week.  See Jen’s report on the Taveras case.  As the facts are described by the court, we would be surprised if an appeal were taken.  We can only suspect what might occur going forward. We offer a few counseling points in Jen’s note and we’re available for any special training issues that you may have in this regard. 

It is difficult, but not impossible, to commit bad faith in New York.  We can help you with some basics to minimize the opportunities for extra-contractual claims.

As an aside, the last time this occurred with this same insurer, it led to a very interesting appeal regarding the relationship between insurer and defense counsel in the Kumar decision in 2008.

Audrey’s Angle:

Greetings from Washington, DC and DRI’s Annual Meeting.  By the time you read this I will have already listened to Justice Scalia and President Bill Clinton speak!

There are a slew of cases to report this edition with the issues centering on lack of medical necessity, breach of policy condition to appear for IMEs and EUOs, and an interesting number of cases on judicial recognition of the Workers’ Compensation fee schedule.  There is one noteworthy decision on whether the insurer must match specialties when conducting an IME.  While the court held it is not required the court did not proceed to address whether the non-matching specialty IME’s substance was more persuasive.  In an ideal world it is ideal to have a matching specialty.  However, the requirement is that the IME physician must be qualified to provide an opinion on a particular specialty. 

If you have not signed up for the DRI Insurance Coverage and Practice Symposium scheduled from December 15-16 in New York there is still time!  If you need a copy of the brochure please email me at [email protected].

Audrey A. Seeley
[email protected]

One Hundred Years Ago Today:  Daredevil Stories

Daredevils were popular a century ago and they remain so today.  As this issue goes to press, daredevil Nik Wallenda's bid to walk a tightrope over the Niagara gorge is before the Ontario government for consideration.  The New York State Legislature passed a special law giving the state’s permission for the stunt and Governor Cuomo signed that bill into law.  Now approval must be received from the Ontario government or the proposal is, pardon the pun, dead in the water

In October 1829, Sam Patch, who called himself "the Yankee Leapster", jumped from a high tower into the gorge below Niagara Falls and survived; this began a long tradition of daredevils trying to go over the falls. On October 24, 1901 – 110 years ago this week, 63-year-old school teacher Annie Edson Taylor was the first person to go over the Falls in a barrel s a publicity stunt; she survived, bleeding, but virtually unharmed. Soon after exiting the barrel, she said, "No one ought ever do that again."  But, daredevils continue to make the news, including one 100 years ago today:

The (Dunkirk) Evening Observer
October 28, 1911

Larsen to Attempt Trip Through Rapids
Venturesome Ride Will Be Undertaken at Niagara Falls Sunday Afternoon

Niagara Falls, NY – Oct. 28.  Captain Klaus Larsen of Detroit, who on September 18, 191l, made a trip from the cataract in Lewiston through the whirlpool rapids and the whirlpool in a little motor boat, today announced that tomorrow afternoon between noon and two o’clock he would again to through the rapids in his new boat, a fifteen foot long and six feet beam with a ten-horse power engine.  Larsen planned to go through the rapids on September 17 but before that date, he was taken suddenly ill and has been out of the hospital only a few weeks.

Editor’s Note:
On July 25, 1911 daredevil Bobby Leach became the first male to go over the Falls in a barrel and live to talk about it.  Then, on September 18th 1910, Captain Klaus Larsen was the only boater to show up in response to an advertisement by the Niagara International Carnival Committee. The advertisement was promoting a boat race through the Whirlpool Rapids.

As the only participant, Larsen rode his boat through the rapids to the Whirlpool. Larsen began the second leg of his journey through the Lower Rapids (Devils Hole Rapids) on route to Queenston. During this portion of his trip, Larsen's boat was swamped and he was tossed into the water when he was within sight of Queenston.

Larsen was able to make his way to shore and finished the race to Queenston, but was aboard the Great Gorge Railway.

On October 28th 1911, Captain Larsen made a successful trip through the Whirlpool Rapids in his boat. Larsen successfully repeated this same stunt the following day.

Peiper’s Perspective:

If you read nothing else in this issue (and we hope that isn’t the case), we would strongly encourage you to read the Court of Appeals’ recent decision in Wilinski.  In a decision that is hot off of the presses, the Court of Appeals has ruled that a worker that is struck by debris has presented a valid Labor Law 240(1) claim.  Nothing shocking about that, you say?  How about if the worker and the debris were located on the same level?  It is hard for us to imagine that the drafters of Labor Law protections, way back when, would have intended liability to attach in such a benign circumstance.  Let the shockwaves begin. 

Our own Labor Law guru, David Adams is working feverishly on a comprehensive breakdown of this decision.  If you’d like to hear his thoughts on it, as well as be added to his forthcoming newsletter focusing on all things Labor Law, please feel free to drop us a line.

If you read only two things this issue (and we hope that isn’t the case either), we would just as strongly direct you to the head-scratching decision reviewed by Jen Ehman in Jen’s Gems.  As all of our faithful readers know, we keep a keen eye out for bad faith decisions and the trial court’s decision in Taveras certainly caught our attention.  If nothing else, as highlighted in Jen’s review, the Court gives a comprehensive review of the factors considered when determining a third-party bad faith claim.  Rest assured we’ll stay on it if it proceeds to an appeal. 

Best wishes, see you in two weeks.

Steve Peiper
[email protected]

One Hundred Years Ago Today – Another Daredevil Makes the News

Syracuse Herald, October 28, 1911
Wind Prevents Vaniman from Trying Balloon

Atlantic City, NJ – Melvin Vaniman at 9 o’clock this morning, officially called off the trial flight of the airship Akron scheduled for this afternoon.  A 20-mile-an-hour northwest wind and threatened storm made the trip too risky.

“I will go up Monday or the first calm day thereafter,” Mr. Vaniman announced.

The flight was to have been made over the ocean and Atlantic City to test out all parts of the great balloon in preparation for an attempt to cross the Atlantic to Europe.

Editor’s Note:   Chester Melvin Vaniman (1866-1912) was an American photographer, adventurer and businessman who specialized in panoramic images taken from heights. He was a famous aviator and balloonist who scaled buildings, hung from self-made slings, and scaled dangerous heights to capture his unique images.

Sometime around 1904 he gave up photography and took up exploration, including attempts at the North Pole and the Trans-Atlantic crossing. At the first attempt to cross the Atlantic in 1910 he anticipated a five day crossing but the airship's motor failed after 38 hours leaving it adrift until it was rescued two days later by the Trent, a passing Royal Mail steamship.

Vaniman lost his life during his second attempt at a trans-Atlantic airship crossing when his airship, the Akron, exploded off the New Jersey shore on July 2, 1912.Filled with 11,300 cubic meters of Hydrogen gas, Vaniman and his crew of four were killed when the airship exploded in front of the gathered crowd near Atlantic City, and gondola plunged 750 meters into an inlet. Subsequent investigation indicated that internal pressure had split the bag.

Headlines, for this week’s Coverage Pointers, attached:

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

  • No Proof Established of Retroactive Intent of Indemnity Agreement and No Proof Offered of Contractual Promise to Secure Insurance
  • Whether Broker Exceeded Its Actual or Apparent Authority In Issuing Binder Remains To Be Seen

 

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

  • Defendants’ Defeat Their Own Motion Where Expert Fails to Address Plaintiff’s 90/180-Day Claim
  • Failure to Address 90/180-Day Claim Is Irrelevant Where There Is No Evidence of Causal Relationship
  • Plaintiff’s Claim Is Dismissed Where Severe Degenerative Arthritis and Eventual Need for Total Knee Replacement Was Diagnosed Years Prior to Accident
  • Defendants Fail to Meet Their Prima Facie Burden Warranting Reversal
  • Plaintiff’s Unaffirmed Submission Fails to Raise Triable Issue of Fact
  • Evidence of Torn Meniscus, in of Itself, Is Not Evidence of Serious Injury
  • Plaintiff Fails to Support Allegations of Serious Injury to Left Shoulder, Cervical Spine and Under the 90/180-Day Category
  • Expert’s Failure to Substantiate or Explain Conclusion That Restrictions Are Self-Imposed Dooms Defendant’s Motion
  • On Appeal, Plaintiff Is Deemed to Have Raised a Triable Issue of Fact
  • Defendants’ Expert’s Finding of Significant ROM Limitations Defeats Defendants’ Cross-Motion

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

ARBITRATION

  • One Year Rule Defense Not Upheld
  • IME Report Versus Checklist Letter of Medical Necessity - No Contest

LITIGATION

  • Insurer Established Lack of Medical Necessity Based Upon Peer Review
  • Insurer’s Denial Based Upon Failure to Appear for IMEs Upheld
  • Third-Party Affidavit Insufficient to Demonstrate Plaintiff’s Business Record
  • Insurer’s Peer Review Unrebutted and Denial Upheld
  • Insurer Not Required to Match Specialties for IME but Sufficiency Left to Trier of Fact
  • Court Declines to Vacate Master Arbitration Award
  • Insurer Prevails on Peer Review Based Denials
  • Insurer Established Policy Condition Breached for Failure to Appear for IMEs
  • Yet Again, Insurer Established Policy Condition Breached for Failure to Appear for IMEs
  • Lack of Evidence That Plaintiff Was Advised Late Claim Submission Can Be Excused Is Fatal to SJ Motion
  • Partial Summary Judgment on Failure to Appear for IMEs
  • Fee Schedule Given Judicial Notice and Insurer Not Required to Submit Same in Support of Motion
  • Again - Fee Schedule Given Judicial Notice and Insurer Not Required to Submit Same in Support of Motion
  • Insurer Demonstrated Breach of Condition to Coverage for Failure to Submit to Scheduled EUOs

 

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

  • In an Apparent About-Face, Court Rules that a Falling Object that is Based at the Same Level as Plaintiff Nonetheless Triggers 240(1) Liability
  • No Emergency Doctrine for “Sun-Blindness”

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

  • Notes from the Albany Office

 

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

  • Can a Claim for Patent Infringement Ever Constitute Advertising Injury?

 

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

  • Auto Insurer Gets Hit With $2,250,000 Bad Faith Judgment
  • Insurer Attempts to Vacate Default Judgment Where Insured Agreed to With Draw Its Answer In Exchange For Plaintiff’s Agreement to Retrain from Enforcing Any Judgment Against It
  • Pursuant to the Blanket Additional Insured Endorsement, the Court Finds That the Insurer Is Obligated to Defend Only the Party It Entered Into the Contract With
  • Assault and Battery Limit Upheld by Court

 

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

Construction Accident Coverage Bingo

Don’t forget to register for the FDCC’s Insurance Industry Institute:

I-3 2011 Insurance Industry Institute
November 16-18, 2011
New York Athletic Club
New York, NY

Registration Information: www.thefederation.org

Hope to see you there.

Dan

Dan D. Kohane
Hurwitz & Fine, P.C.

1300 Liberty Building
Buffalo, NY 14202    
Phone:  716.849.8942
Fax:      716.855.0874
E-Mail:  [email protected]
H&F Website:  www.hurwitzfine.com 
LinkedIn: www.linkedin.com/in/kohane

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

NEWSLETTER EDITOR
Dan D. Kohane
[email protected]

ASSOCIATE EDITOR
Audrey A. Seeley
[email protected]

ASSISTANT EDITOR
Margo M. Lagueras
[email protected]

 

INSURANCE COVERAGE TEAM
Dan D. Kohane, Team Leader
[email protected]

Michael F. Perley
Katherine A. Fijal
Audrey A. Seeley
Steven E. Peiper
Margo M. Lagueras
Cassandra Kazukenus
Jennifer A. Ehman
Diane F. Bosse

FIRE, FIRST-PARTY AND SUBROGATION TEAM
Andrea Schillaci, Team Leader
[email protected]

Jody E. Briandi
Steven E. Peiper

NO-FAULT/UM/SUM TEAM
Audrey A. Seeley, Team Leader
[email protected]

Margo M. Lagueras
Cassandra Kazukenus
Jennifer A. Ehman

APPELLATE TEAM
Jody E. Briandi, Team Leader
[email protected]
 

Scott M. Duquin
Diane F. Bosse

Index to Special Columns

Kohane’s Coverage Corner
Margo’s Musings on “Serious Injury”
 Audrey’s Angles on No Fault
Peiper on Property and Potpourri
Cassie’s Capital Connection
Fijal’s Federal Focus
Earl’s Pearls
Across Borders

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

10/25/11         Regno v. The City of New York
Appellate Division, First Department
No Proof Established of Retroactive Intent of Indemnity Agreement and No Proof Offered of Contractual Promise to Secure Insurance

Grgas established that there was no written indemnity agreement in existence between the parties on the date of plaintiff's accident. The burden then shifted to the party seeking to enforce the contract, Almar, to establish whether an agreement signed seven months after the accident was intended to have retroactive effect.  The Court held that AImar failed to satisfy that burden.  Likewise, Almar failed to establish that Grgas was contractually obligated to procure insurance on its behalf and to name it as an additional insured.  As such, Almar's claim for breach of contract was properly dismissed.

10/18/11         Bicounty Brokerage Corp. v. Burlington Insurance Company
Appellate Division, Second Department
Whether Broker Exceeded Its Actual or Apparent Authority In Issuing Binder Remains To Be Seen
Buckingham Badler (“Buckingham”) was a surplus lines wholesale insurance broker with whom the defendant Burlington Insurance Company (hereinafter Burlington) had contracted to act as a general managing agent.  In November 2001, P & T Contracting (“P & T”) retained the plaintiff, Bicounty Brokerage (“Bicounty”) to procure CGL insurance.  Bicounty contacted Buckingham, dealing with employee Scotto.  Bicounty submitted an application for insurance to Scotto, who issued what appeared to be a binder on behalf of Burlington providing coverage to P & T for the period of November 30, 2001, through November 2002.

When P&T was subsequently sued for injuries in a claim, Burlington denied coverage on the grounds that it never issued a policy.  Bicounty stepped up and provided defense and indemnification in the underlying actions.

Bicounty then sued Burlington, claiming that Burlington was required to defend and indemnify P & T.  Burlington moved for summary judgment claiming that Bicounty had no standing to sue Burlington and that Burlington had no obligation to defend and indemnify P & T in the underlying actions.  It also sought judgment on its cross claim against Buckingham for indemnification.

 

Burlington concedes that it waived the defense of lack of capacity to sue based on Bicounty's prior dissolution as a corporation by failing to raise that defense in its answer or in a motion to dismiss made prior to answering.  In any event, Bicounty allegedly provided the intended insured, P & T, with a defense and indemnification in the underlying cases when Burlington refused to defend and indemnify P & T.  Therefore, Bicounty argued that it had standing.

Burlington, in addition, failed to establish – for summary judgment purposes -- that Buckingham lacked actual authority to act on behalf of Burlington.  There are triable issues of fact as to whether Scotto had the actual authority to act on behalf of Burlington.  In addition, Burlington failed to establish that Buckingham lacked apparent authority to act on behalf of Burlington. “There may also be apparently authority based on the wrongful or negligent acts and misrepresentations of its agent when made within the general or apparent scope of the agent's authority.”

Moreover, Burlington failed to establish its prima facie entitlement to judgment as a matter of law on its cross claim for indemnification against Buckingham because there are issues yet as to whether or not Burlington exceeded its authority.

 

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

10/25/11         Suazo v. Brown
Appellate Division, First Department
Defendants’ Defeat Their Own Motion Where Expert Fails to Address Plaintiff’s 90/180-Day Claim

Defendants failed to demonstrate that plaintiff did not sustain a serious injury under the 90/180-day category.  In support of their motion, defendants submitted reports of their radiologist, who found cervical and lumbar disc herniations and meniscal and ligament tears in the right knee.  Defendants also submitted plaintiff’s post-operative report in which the surgeon diagnosed meniscal and anterior cruciate ligament tears.  This evidence contradicted defendants’ other medical submissions, raising issues of fact.  In addition, defendants’ orthopedist, although opining that plaintiff’s injuries had resolved, provided no opinion with respect to the 90/180-day claim.  Because defendants failed to meet their burden, the burden never shifted to plaintiff and summary judgment was correctly denied without consideration of plaintiff’s opposing papers.

10/25/11         Jimenez v. Polanco
Appellate Division, First Department
Failure to Address 90/180-Day Claim Is Irrelevant Where There Is No Evidence of Causal Relationship

Defendants submitted evidence that plaintiff, a pedestrian, was involved in a prior car accident and had brought a suit alleging similar injuries as she now alleged she sustained as a result of being struck by defendants’ vehicle.  Defendants also submitted medical experts’ reports showing plaintiff’s injuries were the result of pre-existing and degenerative conditions. 

In opposition, plaintiff’s evidence did not address the issue of degeneration and did not explain why the prior accident should be ruled out as the cause of her current alleged injuries.  Because plaintiff submitted no evidence showing that her injuries were related to the current accident, “it does not avail plaintiff’s 90/180-day claim that defendants’ experts did not address [her] condition during the relevant period of time.”

10/18/11         Pines v. Lopez
Appellate Division, First Department
Plaintiff’s Claim Is Dismissed Where Severe Degenerative Arthritis and Eventual Need for Total Knee Replacement Was Diagnosed Years Prior to Accident

Plaintiff claimed serious injury to his knees under the permanent consequential and/or significant limitation of use categories.  In support of his motion, defendant submitted affirmed reports of an orthopedist that found no range-of-motion limitations in the knees and opined that the injuries were the result of severe degenerative arthritis. 

In opposition, plaintiff failed to submit any contemporaneous range-of-motions evidence and his own orthopedic surgeon documented that years before the accident plaintiff had been diagnosed with degenerative arthritis in his knees and the need for total knee replacement was anticipated.  In addition, plaintiff’s expert did not address two prior accidents which had resulted in knee injuries, or how, in light of plaintiff’s medical history, his current problems were causally related to the accident.  Accordingly, on appeal the trial court was reversed and the complaint dismissed.

10/18/11         Algamaly v. Mirghani
Appellate Division, Second Department
Defendants Fail to Meet Their Prima Facie Burden Warranting Reversal

In a decision without any facts, on appeal the court determined that defendants did not meet their prima facie burden of demonstrating that plaintiff did not sustain a serious injury under the permanent consequential and/or significant limitation of use categories.  Therefore, summary judgment should have been denied without consideration of plaintiff’s opposing papers.

10/18/11         Kolodziej v. Savarese
Appellate Division, Second Department
Plaintiff’s Unaffirmed Submission Fails to Raise Triable Issue of Fact

In opposition to defendant’s submissions, plaintiff submitted the unaffirmed report of her treating physician who examined her five days after the accident.  The report, because it was unaffirmed, did not constitute competent medical evidence raising an issue of fact.  Additionally, defendant made a prima facie showing that plaintiff did not sustain a serious injury under the 90/180-day category which plaintiff failed to rebut.  Therefore, the trial court was reversed and summary judgment granted to defendant.

10/18/11         Bamundo v. Fiero
Appellate Division, Second Department
Evidence of Torn Meniscus, in of Itself, Is Not Evidence of Serious Injury

In support of their motion, defendants submitted the affirmed report of their examining orthopedist who determined that plaintiff’s alleged injury to his left knee did not constitute a serious injury under the permanent consequential and/or significant limitation of use categories.  Defendants also submitted plaintiff’s deposition testimony, in which plaintiff admitted only missing seven days of work, in opposition to plaintiff’s 90/180-day claim. 

In opposition, plaintiff submitted evidence of a torn meniscus in the left knee and the trial court denied defendants’ motion.  On appeal, the court noted that a torn meniscus is not evidence of a serious injury without objective proof of the extent and duration of the alleged limitation.  The appellate court affirmed the trial court also agreeing with defendants that plaintiff failed to raise a triable issue of fact with regard to the 90/180-day claim.

10/18/11         Lodato v. Mahler
Appellate Division, Second Department
Plaintiff Fails to Support Allegations of Serious Injury to Left Shoulder, Cervical Spine and Under the 90/180-Day Category

Plaintiff alleged serious injury to his left shoulder and cervical spine, as well as under the 90/180-day category.  Without details, defendant meet her prima facie burden showing that plaintiff’s alleged injuries did not constitute serious injuries and plaintiff failed to submit evidence to rebut and raise a triable issue of fact.  As such, on appeal the court reversed the trial court and, in view of that decision, dismissed defendant’s appeal of the trial court’s denial of her motion to reargue.

10/18/11         Roc v. Domond
Appellate Division, Second Department
Expert’s Failure to Substantiate or Explain Conclusion That Restrictions Are Self-Imposed Dooms Defendant’s Motion

The trial court granted defendant Vilsaint motion for summary judgment dismissing the plaintiffs’ complaint as to him.  In support, he presented affirmed medical reports of an orthopedic surgeon who noted significant range-of-motion limitations in one plaintiff’s cervical and thoracolumbar regions, and significant range-of-motions in the other plaintiff’s cervicothoracic region.  He opined, however, that the limitations were subjective and self-imposed but he did not substantiate that opinion with any objective medical evidence.  Because Vilsaint failed to meet his prima facie burden, the appellate court reversed without need to consider the plaintiffs’ opposing papers.

10/18/11         Tudor v. Yetman
Appellate division, Second Department
On Appeal, Plaintiff Is Deemed to Have Raised a Triable Issue of Fact

Defendants meet their burden of showing that plaintiff’s alleged injuries to the cervical spine did not constitute a serious injury and that, in any event, those injuries were not causally related to the accident.  On appeal, the court reversed that trial court finding that plaintiff submitted sufficient competent medical evidence to raise a triable issue of fact not only with regard to the injuries, but also with respect to causation.

10/18/11         Walter v. Walch
Appellate Division, Second Department
Defendants’ Expert’s Finding of Significant ROM Limitations Defeats Defendants’ Cross-Motion

Plaintiff alleged that his infant step-daughter sustained serious injuries to her cervical spine.  Defendants cross-moved and submitted the affirmed report of their examining orthopedic surgeon in support.  Denial of defendants’ cross-motion was proper, however, because they failed to meet their prima facie burden as the surgeon found significant range-of-motion limitations of the infant’s cervical spine.

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

10/19/11         Applicant v. Respondent
Arbitrator Veronica K. O’Connor, Erie County
One Year Rule Defense Not Upheld

The Applicant sought reimbursement for an office visit and MRI conducted between June 18, 2010 and September 8, 2010, as a result of a December 19, 2008, accident which the insurer denied based upon the one year rule.  The assigned arbitrator carefully reviewed the medical reports submitted and determined that the injuries treated were documented within one year after the accident occurred.  Therefore, the insurer could not rely upon the one year rule.

10/14/11         Applicant v. Respondent
Arbitrator Kent L. Benziger, Erie County
IME Report Versus Checklist Letter of Medical Necessity - No Contest

Our own Jen Ehman, Esq. handled this one for the insurer.  Great job Jen!

The Applicant sought reimbursement for an RS 4 channel interferential muscle stimulator prescribed by Dr. Ranga Krishna arising out of a February 3, 2006, accident.  It was prescribed for brachial neuritis or radiculitis and thoracic or lumbosacral neuritis or radiculitis.  The basis for prescribing it was to relieve acute pain, relax muscle spasms, prevent disuse atrophy, and maintain range of motion as well as increase blood circulation.

The insurer denied the durable medical equipment based upon an independent medical examination (“IME”) conducted by Dr. Kuldip Sachdev.  Dr. Sachdev, a neurologist, opined that there were no objective neurological findings or further need for inter alia durable medical equipment. 

The assigned arbitrator determined that the Applicant met its initial burden of medical necessity.  Thereafter, the arbitrator indicated that he must weigh the IME report against a checklist prescription/letter of medical necessity.  The IME report was more persuasive.

The arbitrator commented that the Applicant would have been better served submitting treatment records and a specific letter of medical necessity.  The Applicant argued that he sought discovery from the insurer for these records.  The arbitrator noted that there was no documented good faith attempt to first obtain the records from the prescribing physician.  Also, the CPLR guidelines on discovery do not apply to arbitration proceedings.

LITIGATION

10/18/11         Mosad Med., PC a/a/o Dulce Silverio v. Praetorian Ins. Co.
Appellate Term, Second Department
Insurer Established Lack of Medical Necessity Based Upon Peer Review

The insurer’s summary judgment motion should have been granted as the insurer submitted sufficient evidence that it timely denied the claims and that the denials were upon an affirmed peer review.  The affirmed peer review set forth the sufficient factual and medical rationale for the doctor’s opinion establishing lack of medical necessity.  The plaintiff’s doctor’s affirmation did not rebut or meaningfully refer to conclusions set forth in the peer review.

10/14/11         Radiology Imaging of Queens d/b/a Advanced Med. Diag. a/a/o Herlin Chery v. Progressive Ins.
Appellate Term, Second Department
Yet Another:  Insurer Established Lack of Medical Necessity Based Upon Peer Review

The insurer’s unopposed summary judgment motion should have been granted as the insurer submitted sufficient evidence that it timely denied the claims and that the denials were upon an affirmed peer review.  The affirmed peer review set forth the sufficient factual and medical rationale for the doctor’s opinion establishing lack of medical necessity.

10/14/11         Padova Physical Rehab. Med., PC a/a/o Victor Giron v. Praetorian Ins. Co.
Appellate Term, Second Department
Insurer’s Denial Based Upon Failure to Appear for IMEs Upheld

The insurer properly demonstrated a breach of the policy condition to attend scheduled IMEs on two occasions.  The insurer submitted affidavits from the IME service that scheduled and was to conduct the IMEs to establish timely mailing of the IME notices.  An affirmation from the medical professionals was submitted demonstrating the assignor’s failure to appear for scheduled IMEs.  Also, an affidavit from the insurer’s examiner demonstrated timely and proper mailing of denials of claim.

10/14/11         The New York Hosp. Med. Ctr. of Queens a/a/o Francisca Vicencio v. Statewide Ins. Co.
Appellate Term, Second Department
Third-Party Affidavit Insufficient to Demonstrate Plaintiff’s Business Record

Plaintiff failed to establish its prima facie case when it submitted a third-party affidavit that did not demonstrate that the NF-5, hospital facility form, was plaintiff’s business record.

10/14/11         MSSA Corp. a/a/o Linda Smith-Pena v. American Transit Ins. Co.
Appellate Term, Second Department
Insurer’s Peer Review Unrebutted and Denial Upheld

The insurer’s summary judgment motion should have been granted as the insurer submitted sufficient evidence that it timely denied the claims and that the denials were upon an affirmed peer review.  The affirmed peer review set forth the sufficient factual and medical rationale for the doctor’s opinion establishing lack of medical necessity. The plaintiff did not rebut the peer reviewer’s findings.

The following decisions, all decided on October 14, 2011, granted the insurer’s summary judgment motion by adoption of the rationale in MSSA Corp. a/a/o Linda Smith-Pena:

D&R Med. Supply, Inc. a/a/o Anthony Rich v. American Transit Ins. Co.;

VAS Med., PLLC a/a/o Anna Medyantseva v. American Transit Ins. Co.;

We Do Care Med. Supply, Inc. a/a/o Reynaldo Estevez v. American Transit Ins. Co.; and

PMR Med. And Diag., PC a/a/o Ana Burdier v. American Transit Ins. Co.

10/12/11         Fine Healing Acupuncture, PC a/a/o John Miller v. Country-Wide Ins. Co.
Appellate Term, Second Department
Insurer Not Required to Match Specialties for IME but Sufficiency Left to Trier of Fact

The insurer’s summary judgment should not have been granted as an issue of fact existed as to lack of medical necessity.  The court rejected the plaintiff’s argument that the insurer’s IME conducted by a neurologist as the basis to deny acupuncture services should be disregarded as the neurologist was not competent to give a medical opinion as to medical necessity of acupuncture services.  Generally, there is no requirement that a claim denial has to be based upon the medical examination conducted by a medical provider of matching specialty to that of the treating.  A review of the examination report revealed that there was a factual and medical rationale for lack of medical necessity.  The plaintiff though did submit a sufficient affidavit from the treating acupuncturist that raised an issue of fact as to whether the services were medically necessary.

10/12/11         Walton Med. Care, PC a/a/o Mascimilano Aquino v. Travelers Ins. Co.
Appellate Term, Second Department
Court Declines to Vacate Master Arbitration Award

The Master Arbitrator’s award was not vacated pursuant to CPLR 7511 as it had a rational basis and was not arbitrary and capricious, or contrary to settled law.

10/12/11         Alfa Med. Supplies, Inc. a/a/o Joel Ortiz v. Auto One Ins. Co.
Appellate Term, Second Department
Insurer Prevails on Peer Review Based Denials

The insurer was entitled to summary judgment on lack of medical necessity based upon two affirmed peer reviews.  The court rejected the plaintiff’s contention that the peer review reports were inadmissible as they considered medical records from other providers.  Further, the plaintiff did not rebut the conclusions in the peer reviews to create an issue of fact precluding summary judgment.

10/12/11         Parkway Imaging & Diag., PC a/a/o Miguel Zayas v. Clarendon Nat’l Ins. Co.
Appellate Term, Second Department
Insurer Established Policy Condition Breached for Failure to Appear for IMEs

The assignor breached a condition to coverage under the policy to appear for scheduled IMEs.  The insurer demonstrated the policy breach through the affidavits of IME service that scheduled the IMEs, the physician retained to conduct the IMEs, and a claims examiner as to the insurer’s timely generation and mailing of a denial.

10/12/11         Triangle R, Inc. a/a/o Mark Tucker v. Clarendon Nat’l Ins. Co.
Appellate Term, Second Department
Again, Insurer Established Policy Condition Breached for Failure to Appear for IMEs

The assignor breached a condition to coverage under the policy to appear for scheduled IMEs based upon the same rationale and type of evidence the insurer submitted in Parkway Imaging reported above.

10/12/11         Proscan Imaging Buffalo a/a/o Cevin Welch v. Clarendon Nat’l Ins. Co.
Appellate Term, Second Department
Yet Again, Insurer Established Policy Condition Breached for Failure to Appear for IMEs

The assignor breached a condition to coverage under the policy to appear for scheduled IMEs based upon the same rationale and type of evidence the insurer submitted in Parkway Imaging reported above.

10/11/11         Jae Ook Park, MD a/a/o Yoon Jung Kim v. Zurich Am. Ins. Co.
Appellate Term, Second Department
Lack of Evidence That Plaintiff Was Advised Late Claim Submission Can Be Excused Is Fatal to SJ Motion

The insurer’s summary judgment motion was improperly granted on the issue of violation of the 45 day rule to submit medical services to the insurer from the date the service was rendered.  The affidavit of the insurer’s no-fault specialist did not demonstrate that the denials advised the plaintiff that late submission of the claim would be excused if a reasonable justification were provided as required by the regulation.

10/11/11         Kacper Kiutek, DC a/a/o George Brady v. Clarendon Nat’l Ins. Co.
Appellate Term, Second Department
Partial Summary Judgment on Failure to Appear for IMEs

The insurer was entitled to partial summary judgment on the assignor’s failure to appear for two scheduled IMEs.  However, an issue of fact remained with regard to one claim as the insurer’s claims examiner’s affidavit attested to the standard office procedure of mailing denials the same date generated yet averred that the denial of one claim may have been issued on a date other than the date contained in the denial.

10/11/11         ZA Acupuncture, PC a/a/o Mark Khananyev v. GEICO Ins. Co.
Appellate Term, Second Department
Fee Schedule Given Judicial Notice and Insurer Not Required to Submit Same in Support of Motion

The insurer was entitled to summary judgment in full.  The plaintiff admitted in its motion for summary judgment that the insurer issued timely partial payments and denials.  However, the plaintiff contended that the insurer was not entitled to summary judgment on those partial payments that were made in compliance with the Workers’ Compensation fee schedule as the insurer did not submit to the court the fee schedule.  The court rejected this argument on appeal and held that the Workers’ Compensation fee schedule is “of sufficient authenticity and reliability that it may be given judicial notice.”  Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 AD3d 13, 20 (2009); CPLR 4511(b).   Therefore, the insurer sufficiently demonstrated that it paid the claims at the correct fee schedule.  Further, with regard to those claims denied for lack of medical necessity based upon an acupuncture IME, the court held that the plaintiff failed to oppose that portion of the insurer’s cross-motion.  Thus, the insurer was entitled to summary judgment in full.
10/11/11         Points of Health Acupuncture, PC a/a/o Igor Luts v. GEICO Ins. Co.
Appellate Term, Second Department
Again - Fee Schedule Given Judicial Notice and Insurer Not Required to Submit Same in Support of Motion

Yet another decision with the same rationale as ZA Acupuncture reported above. 

10/11/11         Five Boro Psych. Services, PC a/a/o Christina Destefano v. State Farm Mut. Auto. Ins. Co.
Appellate Term, Second Department
Insurer Demonstrated Breach of Condition to Coverage for Failure to Submit to Scheduled EUOs

The insurer was entitled to summary judgment as the assignor breached a condition to coverage under the policy to submit to an examination under oath (“EUO”).  The insurer demonstrated through the affidavit of its adjuster that the denial of claim was timely issued and through the affirmation of defense counsel that was to conduct the EUO that the assignor failed to appear on two occasions as scheduled.  The court specifically rejected the plaintiff’s argument that the insurer must conspicuously highlight the information regarding the EUO in the scheduling letter.

 

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

10/25/11         Wilinski v 334 E. 92nd Hous. Dev. Fund Corp.
Court of Appeals
In an Apparent About-Face, Court Rules that a Falling Object that is Based at the Same Level as Plaintiff Nonetheless Triggers 240(1) Liability

Plaintiff was in the process of demolishing brick walls at a vacant warehouse.  Prior to starting his work on that day, plaintiff noticed two steel plumbing pipes which protruded approximately ten feet out of the floor.  The pipes were unsecured, and otherwise fully exposed to the other work which plaintiff would perform in the same general vicinity. 

At some point, debris from a nearby demolished wall struck the pipes.  The debris caused the pipes to fall, and unfortunately strike plaintiff’s head, neck and shoulder in the process.  Plaintiff commenced the instant action seeking recovery for his injuries under Labor Law §§ 240(1), 241(6) and 200. 

Defendants moved for summary judgment under Labor Law § 240(1) on the basis that the incident was not gravity related because the objects which struck plaintiff were on the same “level” as plaintiff at the time they fell.  Although the trial court granted plaintiff’s motion for summary judgment, the Appellate Division reversed and dismissed plaintiff’s claim. 

The Appellate Division then certified the question, and forwarded it to the Court of Appeals for a final decision.  In a rare 4-3 decision, the Court of Appeals ruled that although the pipes were located on the same “level” as the plaintiff, nevertheless a potentially valid claim had been asserted.   In so holding, the majority opined that rather than an inquiry as to the location of the object, the sole question to be addressed was whether “injuries were a direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential”  (emphasis added).  Here, because there was height differential (pipes rose 10 feet above the floor, and plaintiff only stood 5’6’’), the Court ruled that the incident “arose from a significant elevation differential.” 

The only question remaining was whether the injuries sustained by plaintiff were a “direct consequence of defendant’s failure to provide adequate protection.”  On that issue, the Court of Appeals remanded the matter back to the Trial Court for further briefing. 

In a well-considered dissent, Judge Pigott notes that the Court’s decision runs “far afield from this Court’s Labor Law § 240(1) precedent.”  Essentially, Judge Pigott’s opinion can be distilled down the simple fact that the plaintiff and the object were based at the same level.  In the dissent’s view, it doesn’t matter how tall the object was, nor does it matter the differential between the top of the object and the top of the plaintiff’s head.  The issue determining 240(1) liability is whether the object and the plaintiff were based on the same level.  Just as a collapsing wall is not considered a Labor Law § 240(1) case, so too is a falling pipe excluded from protection under the statute. 

Peiper’s Point – It seems to this reviewer that when a determination of liability under the statute is determined by a tape measure, we have (to use Judge Pigott’s words) far afield of the intentions of the statute.  Under the Court’s analysis if the pipe were 5 feet, and plaintiff was 6’5” there would be no labor law violation.  What if the pipe was 3 feet, and plaintiff was kneeling at the time he was struck?  What if the pipe struck plaintiff on the foot instead of the head? 

10/13/11         Lifson v. City of Syracuse
Court of Appeals
No Emergency Doctrine for “Sun-Blindness”
In this sad case, plaintiff was struck by a vehicle driven by Mr. Klink as she crossed a street in downtown Syracuse, New York.  At the time of the incident, Klink was attempting to make a left hand turn at a “T-intersection” which placed him looking directly into the setting sun.  Klink admittedly responded by looking away to refocus his vision, and then looking back toward the direction he was turning.  As he refocused on the direction he was going, Mr. Klink saw, for the first time, Ms. Lifson.  Unfortunately, he was unable to stop, and Ms. Lifson ultimately succumbed to her injuries. 

Klink’s attorneys requested, and were granted, a jury instruction on the emergency doctrine.  Essentially, the jury was instructed that if, in a similar circumstance, a reasonable prudent person would have responded in the same manner as Mr. Klink no liability should attach to him.  On the basis of this instruction, the jury held that Mr. Klink was not liable for causing or contributing to plaintiff’s death. 

On appeal, the Fourth Department affirmed the trial court’s decision to give the emergency doctrine instruction.  The Appellate Court’s decision was premised, principally, on the basis that the sun-blindness was “sudden and unforeseen.” 

In reversing, the Court of Appeals however stated that a driver should be aware of the possibility of the sun interfering with the driver’s vision as it nears the horizon at sunset.  This is particular true, according to the majority, where the driver is traveling in a westerly direction.  Therefore, in the Court’s view, Mr. Klink was not confronted with a sudden and unexpected circumstance.  As such, the emergency doctrine instruction was improperly provided to the jury.

In dissent, Judge Smith reasoned that the issue is not whether the existence of the sun in Mr. Klink’s vision was “foreseeable”.  Rather, Judge Smith stated that the issue governing the application of the emergency doctrine is whether it was “sudden and unexpected.”  On the facts of this case, Judge Smith noted that it was more than possible that a jury could find that turning into a sun-filled street, at that precise time and day, could create a sudden and unexpected situation.  This is particularly true where, as here, the driver was not overly familiar with the area.

 

 

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

Notes from the Albany Office

There is no news to report on the property and casualty front from the Legislature or the new Department of Financial Services.  However, I saw an article in the Times Union that caught my eye, and I couldn’t resist sharing.  The DFS issued a press release that UnitedHealth Group which operated as United Healthcare and Oxford in New York agreed to make public the documents associated with its request for a rate increase.  For those who have never been involved in the filing of policy forms or rate increases, often the actuarial basis for the rate increase is requested to remain confidential.  The fear is that these documents contain sensitive and arguably confidential information.  Thus the willing release of such information is not the norm. 

Superintendent Lawsky’s press release stated “I applaud UnitedHealth…for stepping up and becoming the industry leader when it comes to transparency.  The rest of the industry should now follow UnitedHealth’s lead and end their policy of secrecy once and for all.”  It is not known whether this will become the norm in both the health and property and casualty industries, but this is certainly a change in the filing process.

Hopefully by the time you read this, I won’t have snow on the ground at my house despite the dire predictions

Cassie

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

10/17/11         Dish Network Corp., LLC v. Arch Specialty Ins. Co., et. al.
Tenth Circuit Court of Appeals – Colorado
Can a Claim for Patent Infringement Ever Constitute Advertising Injury?
The coverage dispute in this matter arises from a patent infringement suit brought against Dish Network Corp. [“Dish”] by Ronald A. Katz Technology Licensing, L.P. [“Katz”].  In its complaint Katz alleged that Dish had infringed one or more claims in each of twenty three patents.  Katz asserted that Dish did so by “making, using, offering to sell, and/or selling … automated telephone systems, including without limitation the DISH Network customer service telephone system, that allow Dish’s customers to perform pay-per-view ordering and customer service functions over the telephone.”

Each of the patents-in-suit contains detailed claims outlining numerous possible applications for the technology.  The insurers did concede that at least six of the claims Dish may have infringed explicitly mention advertising or product promotion – claims describing “a process … wherein the operation format is an automated promotional format;” “an automated promotional formal for promoting … products;” and “a telephone interface system … wherein said select interactive operation format involves advertising of a product for sale.”

The insurance policies at issue were primary and excess general commercial general liability policies.  Primary insurance was provided by Arrowood and Travelers.  XL Insurance, Arch and National Union provided excess coverage.  Most of the policies defined “advertising injury” in terms of four categories of offenses.  The National Union policy by contrast, limits coverage to “injury arising solely out of your advertising activities as a result of” one or more of the four types of offenses.  The Arch policy is the only one to provide a different definition for “advertising injury”, referring in relevant part, to “the use of another’s advertising idea in your ‘advertisement.”  Arch’s policy also contains a clause excluding from coverage “any claim … arising out of the infringement of copyright, patent, trademark, trade secrete or other intellectual property rights.”  This exclusion did not “apply to infringement, in the insured’s advertisement, of copyright, trade dress or slogan.”

Applying Colorado law, the district court concluded that a claim for patent infringement, such as the one at issue here, could “properly give rise to coverage, or even the specter of coverage, such that an insurer will have a duty to defend.”  The court stated that the duty would arise where the insured established three elements:  (1) that it was engaged in advertising during the relevant period; (2) that the underlying complaint alleged a predicate offense under the policy language; and (3) that a causal connection existed between the advertising and the alleged injury suffered by the patent holder.

Based on this test, the district court ruled that Katz’s reference to “customer service functions” in its complaint was sufficient to allege that Dish engaged in “advertising”.  On the other hand, the district court rejected Dish’s argument that its use of a patented interactive telephone system to advertise could constitute “misappropriation of advertising ideas or style of doing business”, the sole predicate offense on which Dish relied.  The district court explained that the Katz complaint focused on Dish’s use of these patented technologies as a means of conveying content to and tailoring its interactions with its customers.  However, the district court stated that the complaint did not alleged that the patented technologies are themselves incorporated as an element of Dish’s communications and interactions with its customers.  The district court held that the complained of conduct did not therefore, constitute “misappropriation of an advertising idea” within the meaning of the contested insurance policies. 

The district court granted summary judgment to the insurers without addressing the third element of the test, causation.  For the following reasons, the Tenth Circuit [“Court”] disagreed and reversed and remanded the case to the district court for further proceedings.

The Court stated that the real substance of the parties’ dispute focused not on specific patent claims, but on whether, under Colorado law, Katz’s allegation that Dish infringed its patents by “allowing its customers to perform pay-per-view ordering and customer service functions” can be read to allege “advertising injury”.

The threshold issue was whether patent infringement can ever fall within the applicable commercial general liability policies’ “advertising injury” coverage.  The parties focused their arguments exclusively on the offense within the definition of “advertising injury” consisting of “misappropriation of advertising ideas or style of doing business.”

This issue had not been previously addressed by the Colorado courts, so the parties looked to foreign jurisdictions to support their positions.  Dish argued that courts routinely distinguish between claims based on the manufacture and sale of an infringing product – in which case the claim is not covered even if the product is used in advertising – and a claim based on the unauthorized use of a patented advertising idea or method – in which case the claim is covered.  The insurers, on the other hand, contend that the courts hold that the phrase “misappropriation of advertising ideas or style of doing business is unambiguous – it does not encompass patent infringement claims”.


The Court noted that in spite of the broad language used, many of the cases the insurers cited focus on the policy terms “misappropriation of style of doing business” or “infringement of title”.  However, under the facts of this case, the Court’s decision rested on the “misappropriation of advertising ideas” language in Dish’s policies.  By contrast, the Court noted that in the present case Dish allegedly committed patent infringement by using Katz’s technology to sell Dish’s own non-infringing satellite television products and services.  The Court pointed to several cases from other jurisdictions which had considered similar facts and affirmatively held that where an advertising technique itself is patented, its infringement may constitute advertising injury.

Ultimately, the Court concluded that in the context of this particular case the term “misappropriation of advertising ideas” was ambiguous and must be construed in favor of coverage.  The Court noted that the scope of “advertising injury” coverage may be manifestly clear in most cases, in which a patented product is advertised and sold.  However, in a setting where the advertising idea that is misappropriated happens also to be a patented technology, the scope of coverage is less certain.

Accordingly, the Court held that depending on the context of the facts and circumstances of the case, patent infringement can qualify as an advertising injury if the patent involves any process or invention which could reasonably be considered an advertising idea.

Having determined that a patent infringement could qualify as an advertising injury the court examined whether the complaint potentially alleged “misappropriation of advertising ideas or style of doing business”.  The Court was not convinced that the allegations could be read to allege misappropriation of a style of doing business; however, it did hold that the allegations were broad enough under Colorado law to potentially allege misappropriation of advertising ideas.

Critical to the Court’s analysis was the meaning of the terms “advertising” which was not defined in any of the policies.  Read liberally, the Court determined that the complaint generally alleged that Dish misappropriated a product; it allegedly used, made, sold, or offered for sale a telephone system patented by Katz.  More specifically, the Court found that the complaint may be read to allege actions that misappropriated patented or advertising ideas, insofar as the product at issue was designed expressly for product promotion and dissemination of advertising information.

In reaching its conclusion, the Court rejected the district court’s reasoning that Dish cannot have misappropriated advertising ideas because it did not incorporate patented technologies as a substantive element of its communications and interactions with customers.  The Court considered it sufficient that Dish allegedly misappropriated “a means of conveying content to and tailoring its interactions with its customers”.  The Court stated that Dish’s customer service telephone system is an advertising idea insofar as it constitutes the “form” of advertising material Dish conveys.  The Court further noted that the complaint could be read to allege that Dish’s phone system made product and service information available to any member of the general public who called; and, this sufficiently alleges actions which “potentially” or “arguably” constitute a predicate offense, i.e., misappropriation of an advertising idea.

As to whether Dish misappropriated a “style of doing business”, the Court stated that the allegations in the complaint do not rise to that level.  At most, the complaint claims only that Dish appropriated certain patented technologies that could be used a part of “a company’s comprehensive manner of operating its business, and thus, does not allege misappropriation of a style of doing business.

Finally, because the Court determined that the underlying complaint potentially alleges the misappropriation of advertising ideas, the Court went on to address the third prong of the test, causation.  The Court held that to adopt the insurers’ argument that “there is no causal nexus where the injury could have occurred separate and apart from any advertising”, would seem to require that advertising be the sole cause of the alleged injury.  Yet, the Court pointed out, only National Union, among the five insurers, actually included the requirement that “injury arise solely out of advertising” in the policy it sold to Dish.  The Court held that to impose a duty to defend under the other policies only if advertising alone, and nothing else, caused injury would give the other four insurers the benefit of a “more rigorous” causation standard than they bargained for; and Colorado law does not allow courts to alter the parties’ contracts in this way.”

Reversed and remanded to the district court for further proceedings.  Specifically, issues relating to the unique language in the policies issued.

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

10/17/11         Taveras v. American Tr. Ins. Co.
Supreme Court, Kings County
Auto Insurer Gets Hit With $2,250,000 Bad Faith Judgment – Lessons to be Learned
In May 2002, a taxi operated by Muhammad Amir, pursuant to a medallion owned by Thurston Steed, and insured by American Transit Insurance Company (the “AMIR taxi”), was involved in a three car accident.  Plaintiff, a union banquet waiter, was a rear seat passenger in the AMIR taxi when it struck the rear of a rental car owned by ELRAC, Inc., the parent company to Enterprise-Rent-A-Car.  Thereafter, the AMIR taxi was also struck by another taxi, driven by Lakwinder Singh and also insured by American Transit Insurance Company (“AT”). 

Plaintiff sustained injury in the accident and brought an action against all three vehicles.  In April 2006, after a bifurcated jury trial, liability was apportioned 70% to the AMIR taxi and 30% to the SINGH taxi.  No liability was found against the Enterprise vehicle; however, prior to trial it had entered into a high-low agreement with plaintiff based on the percentage of liability.  Thus, following the trial Enterprise paid its low ($225,000). 

Following the liability portion of the trial, and before opening on damages, plaintiff’s counsel, on the record, indicated that he was still willing to settle with AT for the combined policy limits of the SINGH and AMIR taxis, $200,000.  No settlement was reached.  Thereafter, the matter went to the jury and they rendered a verdict on damages in the amount of over nine million dollars.  Notably, the amount was later reduced to $2,500,000 by the Appellate Division.

Following this judgment being rendered, AMIR assigned his right to commence a bad faith action against AT to plaintiff, which resulted in this action.  In New York, to prevail in such an action, a plaintiff must establish that the insured “lost an actual opportunity to settle the . . . [action] . . . at a time when all serious doubts about [his or her] liability were removed” and that “defendant insurer engaged in a pattern of behavior evincing a conscious or knowing indifference to the probability that an insured would be held personally accountable for a large judgment if a settlement offer within the policy limits were not accepted” (see Pavia v State Farm Mut. Auto. Ins. Co.).

Ultimately, the court agreed with plaintiff and found that AT had acted in bad faith; thus, it was liable for the remainder of the damages, $2,225,000. 

Notably, in reaching its decision, the court made a list of the fifteen things AT did wrong in its handling of the underlying case. 

  • AT violated its own internal protocol by having one claims examiner handle both of the claims filed against its insureds, AMIR/STEED and SINGH, despite the obvious conflict of interest;
  • AT failed to adhere to its own internal protocol in properly documenting the claims file for both insureds.  The files did not include medical records, bills of particular, operative reports, conversations with defense counsel, periodic claims evaluations etc.;
  • AT’s Bodily Injury Manager admitted that he was not only aware of AT’s failure to properly document all pertinent information in its claims notes, but allowed the violation to occur;
  • Plaintiff made an economic claim in excess of 1.5 million; however, no reference of this was made in the computerized claims notes;
  • AT violated its own protocol of maintaining the hard copies of the claims files and, at the time of trial, AT only had its computerized claims notes available to evaluate the risks to its insureds;
  • Based upon the computerized claims notes, which were the only source of information available to AT during the trial, its claims examiners, claims supervisor, Bodily Injury Manager and VP had no ability to evaluate the underlying action and they had no idea of the risk to their insureds;
  • Based on the inadequate claims notes and copies of only some, but not all, pleadings, AT did not have the ability to provide a fair and adequate evaluation and AT employees admitted that just using the claims notes was not sufficient to evaluate the claim and it was, in fact, reckless to proceed to trial; 
  • AT’s Bodily Injury Manger conceded that as there was insufficient information in the claims files in order to fairly evaluate the merits of the case, AT could not protect the rights and interests of its insureds;
  • AT never communicated directly with its insured, AMIR, because AT relied on defense counsel to speak with the insured and there was no documentation that indicted that AT communicated any information whatsoever to its insured in writing;
  • Defense counsel and AT failed to inform AMIR of any settlement negotiations or settlement offer;
  • AT failed to put itself on equal footing with its insureds when the damages phase of the trial commenced;
  • AT refused to settle the underlying action without receiving pre-trial reports from defense counsel, which it never received prior to the conclusion of the trial, despite AT’s separate and non-delegable duty to evaluate the risk to the insureds;
  • Before the liability and damages phases of the trial, the only AT personnel with the authority to settle a case for more than $50,000, never received the file or even knew that the case was going to trial or allowed the case to proceed to trial;
  • AT lost the opportunity to settle the claim at a time when all serious doubts about the insured’s liability were removed (i.e., following the liability portion); and  
  • AT failed to timely disclose the expert witnesses it needed for the damages portion of the trial, which resulted in their preclusion from testifying. 

 

Note:  As you can see, this is not a case in which one mistake was made, but, if the court’s rendition of the facts is accurate, there were a serious of errors.  Again, assuming the accuracy of the assertions, AT violated some of the basic rules of claims handling.  Some lessons this case teaches us include:

  • Communicate with the insured.  If the insured faces a potentially uninsured risk, make sure he, she or it knows about it.  The insured should always be kept advised of the status of negotiations.  Always.
  • Communicate with the defense counsel.  There should be no surprises.
  • Where insureds having conflicting interests, separate adjusters should be assigned to the files in the same way that separate attorneys should be assigned.
  • DOCUMENT, DOCUMENT, DOCUMENT the claims files.
  • Communicate with defense counsel.  If you need information, ask for it.  Do not wait around until defense counsel decides to provide it. 

10/12/11         Lissauer v. Guideone Specialty Mut. Ins.
Supreme Court, Kings County
Insurer Attempts to Vacate Default Judgment Where Insured Agreed to With Draw Its Answer In Exchange For Plaintiff’s Agreement to Retrain From Enforcing Any Judgment Against It
Plaintiff commenced this action as a judgment creditor of Guideone Specialty’s insured.  Guideone then brought this motion seeking dismissal of the complaint for failure to state a cause of action.  Guideone also moved to set aside the judgment granted to plaintiff in the underlying action based on fraud. 

As an initial matter, the court noted that Guideone’s motion was defective in so much as it sought to vacate the default judgment based on fraud.  A motion for relief from a default judgment must be brought in the original action or proceeding.  As this motion was not brought in the original action, but, rather, the declaratory judgment action, the requested relief was denied.  With that said, the court also denied the motion on substantive grounds as Guideone failed to demonstrate that the judgment was procured by a fraud upon the court or through misconduct by the parties.  The court was not persuaded that the stipulation entered into by the plaintiff and Guideone’s insured, in which the insured agreed to withdraw its answer in exchange or plaintiff’s agreement not to enforce any judgment against him, was improper on its face.  

With regard to the motion to dismiss, the court held that there was no dispute that plaintiff brought this action as a judgment creditor or that plaintiff’s direct action seeking to recover the amount of its unsatisfied judgment was pursuant to 3420(a)(2).  Further, Guideone failed to show that the validity of the judgment in the underlying action was material for dismissing this action. 

10/5/11           Murnane Bldg. Contrs., Inc. v. Zurich Am. Ins. Co.
Supreme Court, Suffolk County
Pursuant to the Blanket Additional Insured Endorsement, the Court Finds That the Insurer Is Obligated to Defend Only the Party It Entered Into the Contract With
Murnane Building Contractors (“Murnane”) was retained by Wal-Mart, the property owner, to act as general contractor for the construction of a new store.  Murane then entered into two subcontracts with J.T. Erectors (“JTE”) and Luck Brothers, Inc. (“Luck”).  JTE was retained to perform steel erection while Luck was hired to do site preparation.

In June 2007, an employee of JTE was injured when a free standing steel girder beam fell on him.  He, in turn, commenced a Labor Law action against Murnane and Wal-Mart. 

JTE’s insurance carrier assumed the defense of both Murnane and Wal-Mart; however, Luck’s carrier, Zurich Am. Ins. Co., refused to assume any obligations to either party.  Murnane and Wal-Mart then brought this action seeking additional insured status under the Zurich policy and a declaration that such coverage was primary to the policy issued by JTE’s carrier.   

The Zurich policy contained a blanket additional insured endorsement, which provided that an insured was amended to include “any person or organization with whom you have agreed, through a written contract, agreement or permit, executed prior to the loss, to provide primary additional insured coverage.”  As an initial matter, the court agreed with Zurich that, by the plain terms of the Zurich policy, Wal-Mart was not an additional insured because it did not have a written contract with Luck.  According to the court, the endorsement was clear and unambiguous in excluding additional insured coverage to those not in privity with Luck. 

With regard to Murnane, the court held that as there was privity, Zurich had obligations in favor of Murnane.  However, again, the Zurich policy provided that the coverage available under the blanket additional insured endorsement was limited to “liability arising out of your work for the insured by or for you.”  At this point, the court refused to make an ultimate determination that the accident arose out of Luck’s work.  With that said, as the complaint alleged that the injuries occurred, at least in part, by Luck “allowing the ground on which the girder [which fell upon the employee] was situated to be soft, unstable and otherwise inadequate to support the steel girder,” the court determined that a defense obligation had been triggered.

Next, the court looked to the respective other insurance provision in the two policies at issue.  It determined that both provided primary coverage to Murnane.  Accordingly, the court held that Zurich was required to reimburse JTE’s carrier on a pro-rata basis for the defense of Murnane only.  It also issued a condition order that Zurich is obligated to indemnify Murnane for any judgment entered against it in the underlying action should it be found that the injuries to the worker arose, at least in part, out of Luck’s work. 

10/4/11           American Safety Indem. Co. v. Loganzo
Supreme Court, Suffolk County
Assault and Battery Limit Upheld by Court
While a patron at a bar/lounge operated by Pourhouse, Anthony Loganzo was allegedly beaten up by security personnel and, in fleeing the assault, was struck by a motor vehicle sustain serious injuries. 

Plaintiff, Pourhouse’s insurer, brought this action to enforce a provision in its policy that limited damages resulting from assault and battery.  The DEC page was amended to add the following lines:

Assault and Battery Aggregate Limit:  $100,000
Assault and Battery Limit:  $100,000  

The coverage part then provided that “[t]he Assault and Battery Limit, shown in the Declarations is the most we will pay for the sum of all damages because of an ‘assault’ or ‘battery’, arising out of any one ‘occurrence.’”  The Assault and Battery Aggregate Limit was the most it would pay regardless of the number of “occurrences.”

According to the court, the policy endorsement clearly and unambiguously limited coverage for damages resulting from assault or battery to $100,000.  There was no issue but that Loganzo sustained injuries as a result of an alleged assault committed by security personnel hired by the insured.  Further, the court dismissed any argument that the denial letter was untimely.  This was not a denial, but merely a limit of coverage.

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

CONSTRUCTION ACCIDENT COVERAGE BINGO

            The First Circuit Court of Appeals in Wright-Ryan Construction, Inc., v. AIG Insurance Company of Canada, 2011 WL 3128912 (1st Circuit 2011) recently revisited the ongoing saga of insurance priority and coverage in a construction accident context.  The subcontractor’s insurer (AIG) was held to owe primary coverage for defense costs and settlement with the injured worker despite the general contractor’s overlapping and almost identical policy. 

            The general contractor required the subcontractor to procure a $2 Million commercial general liability policy and name the general contractor as an additional insured.  The general contractor had its own $1 Million CGL policy that was essentially identical to the subcontractor’s policy, but the subcontractor was neither a named insured nor an additional insured. 

            An employee of one of companies the subcontractor hired was injured on the job and sued the general contractor, subcontractor, and his own employer for negligence.  The general contractor and its carrier filed a declaratory judgment action in U.S. District Court seeking a ruling that the subcontractor’s policy was obligated to defend the general contractor.  Eventually, a settlement was brokered between the injured worker and the three construction companies and the complaint was amended to seek reimbursement of the suit defense and settlement costs. 

            The District Court ruled for the subcontractor’s carrier that its policy provided only excess coverage.  Because the general contractor’s policy was primary and not exhausted, the subcontractor’s insurance company, AIG, owed no coverage.  The three judge Appellate Panel reversed reasoning that the general contractor’s policy must be excess because the general contractor had access to the subcontractor’s policy as an additional insured. 

The Appeals Court reasoned that both policies contained “excess clauses” and the general contractor was listed as an additional insured under the subcontractor’s policy with AIG, but the subcontractor was not listed at all under the general contractor’s policy with Acadia Insurance.  Reading the two policies together, the Appeals Court argued that the AIG/subcontractor policy must be treated as primary and the general contractor/Acadia policy as excess.  The Appellate Court also pointed out that the subcontractor was never listed as an insured on the general contractor’s policy. 

            An “excess clause” requires that an insured exhaust all other potential sources of insurance before the insurer is obligated to cover a loss, but both policies here contained similar or substantially the same “excess clauses”. 

            As a result, AIG, the subcontractor’s insurer, owed primary coverage to the general contractor and had to fully reimburse for the settlement and attorneys’ fees incurred in defending the general contractor.

From a practical standpoint, the Appeals Court also noted that this risk shifting arrangement is typical in contracting and the general contractor clearly required the subcontractor to procure its own CGL policy and list the general contractor as an insured to shift the risk of liability for the subcontractor’s work to the subcontractor’s own insurer.

            In a multi-party and often multi-layer construction context, parsing out the insurance coverage and parties can be complicated.  There may be several layers of coverage and questions often arise as to which policy or policies are primary and which are excess or secondary.  There are also related issues under the construction contracts as to who had to procure what coverage and perhaps name other parties as named insureds or additional insureds.   These issues require the attention of the parties and their counsel before work is commenced on the contract, during the contract period, and even after the contract particularly if there is a claim made for personal injury, construction defect, or other potentially covered event. 

 

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

 

10/18/11         Taylor v. Ernst & Young
Ohio Supreme Court

Whether When the Superintendent of Insurance Acts In a Statutory Capacity as Liquidator of an Insolvent Insurance Company, She Is a “Successor in Interest” to the Insolvent Insurer and Bound by an Arbitration Agreement in a Contract Between the Insolvent Insurer and a Third Party
The case involves a 2003 lawsuit filed by former state insurance superintendent Hudson against the Ernst & Young accounting firm.  The complaint was filed in Hudson’s official capacity as liquidator of an insolvent insurance company, American Chambers Life Insurance Company (ACLIC).  The Supreme Court of Ohio ruled that when the Ohio superintendent of insurance acts in her statutory capacity as liquidator of an insolvent insurance company, she is not a mere “successor in interest” to the insolvent insurer, and is not bound by an arbitration agreement in a contract between the insolvent insurer and a third party when the superintendent’s claims do not arise from the contract containing the arbitration clause.  And an insurance company does not have the authority to bind the liquidator of the company to arbitrate preference or fraudulent-transfer claims.
Submitted by: Meloney Perry (Meckler Bulger Tilson Marick & Pearson LLP)

10/12/11         Intrepid Insurance Co. v. Prestige Imports
Third District Court of Appeals of Florida
Flood Exclusion Eliminates Coverage for Damage Caused by Standing Water, But Not for Damage Caused by Back-up of Storm Drain; Dispute as to Cause Precludes Summary Judgment
Prestige, a car dealership, sought coverage for car damage after heavy rainfall caused nearby drainage systems to overflow and immerse numerous cars in water.  When Intrepid denied the claim pursuant to the policy’s flood exclusion, Prestige sued.  Prestige moved for summary judgment, arguing that damage resulted from storm drain back-up, not flood.  The court granted the motion, but the appellate court reversed and remanded, holding: An issue of fact exists as to whether damage was caused by surface water, an excluded cause, or by water that flowed from the storm drainage system, a covered cause. Dissenting judge states loss is excluded either way.
Submitted by: Sharone Kornman and Rebecca Levy-Sachs of Robinson & Cole, LLP

Reported Decisions

Bicounty Brokerage Corp. v. Burlington Insurance Company

Ford Marrin Esposito Witmeyer & Gleser, LLP, New York, N.Y.
(James M. Adrian and Meghan E. Reusch of counsel), for appellant.
Torino & Bernstein, P.C., Mineola, N.Y. (Eva J. Tompkins of
counsel), for plaintiff-respondent.
Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y.
(Christopher Russo of counsel), for
defendant-respondent.

DECISION & ORDER
In an action, inter alia, for a judgment declaring that the defendant Burlington Insurance Company is obligated to defend and indemnify the plaintiff's client, nonparty P & T Contracting Corp., in certain underlying personal injury actions, the defendant Burlington Insurance Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Whelan, J.), dated March 5, 2010, as denied those branches of its motion which were, in effect, for summary judgment dismissing the complaint insofar as asserted against it for lack of capacity and lack of standing to sue, for summary judgment declaring that it has no obligation to defend and indemnify P & T Contracting Corp. in three of the underlying actions, and for summary judgment on its cross claim for indemnification asserted against the defendant Buckingham Badler Associates.

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

The defendant Buckingham Badler Associates (hereinafter Buckingham) was a surplus lines wholesale insurance broker with whom the defendant Burlington Insurance Company (hereinafter Burlington) had contracted to act as a general managing agent. In or around November 2001, nonparty P & T Contracting Corp. (hereinafter P & T) retained the plaintiff, Bicounty Brokerage Corp. (hereinafter Bicounty), to procure commercial general liability insurance. To procure the requested coverage, Bicounty contacted Buckingham, dealing with Buckingham employee Frank Scotto. Bicounty submitted an application for insurance directly to Scotto, who issued what purported to be a document binding an insurance policy on behalf of Burlington providing coverage to P & T for the period of November 30, 2001, through November 2002 (hereinafter the alleged binder).
Subsequently, numerous personal injury actions (hereinafter collectively the underlying actions), were commenced against P & T for accidents that occurred in P & T's work area. Burlington denied coverage with respect to the underlying actions on the ground that it had never issued an insurance policy to P & T. Upon denial of coverage, Bicounty allegedly provided defense and indemnification in the underlying actions.

Bicounty commenced this action seeking, inter alia, a judgment declaring that Burlington was obligated to defend and indemnify P & T in the underlying actions and, as against Buckingham, to recover damages for negligence and breach of contract. Burlington moved, in effect, for summary judgment dismissing the complaint insofar as asserted against it for lack of capacity or lack of standing to sue, for summary judgment declaring that it had no obligation to defend and indemnify P & T in the underlying actions, and for summary judgment on its cross claim for indemnification against Buckingham. The Supreme Court granted those branches of Burlington's motion which were, in effect, for summary judgment declaring that it was not obligated to defend and indemnify P & T in eight of the underlying actions because Burlington was provided with late notice of those claims. However, the Supreme Court denied the remaining branches of Burlington's motion. Burlington appeals, and we affirm the order insofar as appealed from.

Burlington concedes that it waived the defense of lack of capacity to sue based on Bicounty's prior dissolution as a corporation by failing to raise that defense in its answer or in a motion to dismiss made prior to answering (see CPLR 3211[a][3]). We decline Burlington's request to grant it leave to amend its answer to include that affirmative defense at this stage, because Bicounty has shown that it would be prejudiced by such amendment at this time.
Nor is there merit to Burlington's contention that Bicounty lacks standing to bring this action, since Bicounty is not the party insured under the subject policy. Bicounty allegedly provided the intended insured, P & T, with a defense and indemnification in the underlying cases when Burlington refused to defend and indemnify P & T. As such, Bicounty has standing to bring this action (see Bedessee Imports, Inc. v Cook, Hall & Hyde, 45 AD3d 792, 795; Tiffany at Westbury Condominium v Marelli Dev. Corp., 40 AD3d 1073, 1077).
Moreover, the Supreme Court properly denied those branches of Burlington's motion which were, in effect, for summary judgment declaring that it was not obligated to defend and indemnify P & T in three of the underlying actions. Burlington failed to meet its initial burden of establishing, prima facie (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562), that Buckingham lacked actual authority to act on behalf of Burlington. There are triable issues of fact as to whether Scotto, as Buckingham's employee, had the actual authority to act on behalf of Burlington in giving a binding insurance policy to Bicounty.

In addition, Burlington failed to establish, prima facie, that Buckingham lacked apparent authority to act on behalf of Burlington. "It is fundamental to the principal/agent relationship that an insurance company is liable to a third person for the wrongful or negligent acts and misrepresentations of its agent when made within the general or apparent scope of the agent's authority, although the acts or statements exceeded the agent's actual authority or disobeyed the principal's general or express instructions to the agent'" (Bedessee Imports, Inc. v Cook, Hall & Hyde, 45 AD3d at 795, quoting Gleason v Temple Hill Assoc., 159 AD2d 682, 683; see Tucci v Hartford Cas. Ins. Co., 167 AD2d 387, 388). "Only when the agent is acting for his own purposes is the general rule of vicarious liability inapplicable'" (Bedessee Imports, Inc. v Cook, Hall & Hyde, 45 AD3d at 795, quoting Gleason v Temple Hill Assoc., 159 AD2d at 684). Burlington failed to offer any evidence that Scotto was acting "for his own purposes" in sending Bicounty the quote sheet and then indicating that the insurance policy had been obtained. Rather, notwithstanding that Scotto's "acts or statements [may have] exceeded [his] actual authority or disobeyed [Burlington's] general or express instructions," in, inter alia, processing, or partially processing, an incomplete application, Burlington failed to establish, prime facie, that Scotto was not acting, or did not appear to be acting, "within the general scope of [Buckingham's] actual authority under the agency agreement" (Bedessee Imports, Inc. v Cook, Hall & Hyde, 45 AD3d at 795 [internal quotation marks omitted]). Scotto's deposition testimony that it was his usual practice to obtain coverage from Burlington based on the same type of application and alleged binder as was used in the instant matter was not insufficient to create a triable issue of fact as to Buckingham's authority to represent the insurer (see Warnock Capital Corp. v Hermitage Ins. Co., 21 AD3d 1091, 1094; Rendeiro v State-Wide Ins. Co., 8 AD3d 253; U.S. Delivery Sys. v National Union Fire Ins. Co. of Pittsburgh, Pa., 265 AD2d 402).

Moreover, Burlington failed to establish its prima facie entitlement to judgment as a matter of law on its cross claim for indemnification against Buckingham. Burlington contends that it is entitled to indemnification from Buckingham because Buckingham breached agreements between Buckingham and Burlington. "[A] a principal that is vicariously cast in damages as the result of its agent's negligence may be entitled to full indemnification from the agent, who was the actual wrongdoer" (Neil Plumbing & Healing Constr. Corp. v Providence Washington Ins. Co., 125 AD2d 295, 297). However, contrary to Burlington's contention, it failed eliminate all triable issues of fact as to whether Buckingham acted negligently by allegedly violating the agreements between it and Burlington. Similarly, Burlington failed to eliminate all triable issues of fact as to whether Buckingham exceeded the scope of its authority in issuing the subject alleged binders (cf. General Acc. Ins. Co. v Smith. Assoc., 184 AD2d 216).
Buckingham's remaining contention is not properly before this Court.

Pines v. Lopez


Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for appellant.
Richard J. Katz, LLP, New York (Jonathan A. Rapport of
counsel), for respondent.
Order, Supreme Court, New York County (George J. Silver, J.), entered September 28, 2010, which, to the extent appealed from as limited by the briefs, denied defendant's motion for summary judgment dismissing plaintiff's claims for the permanent consequential limitation and significant limitation categories of serious injury within the meaning of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint in its entirety.
Defendant established prima facie entitlement to judgment as a matter of law on plaintiff's claims of permanent and significant limitations. Defendants submitted, inter alia, the affirmed reports of an expert orthopedist, who, after reviewing plaintiff's medical records and examining him, found no limitations in the range of motion of plaintiff's knees and opined that plaintiff's injuries were the result of severe degenerative arthritis in both knees.
In opposition, plaintiff did not raise a triable issue of fact. He failed to present admissible evidence of contemporaneous range of motion limitations following the accident (see Batts v Medical Express Ambulance Corp., 49 AD3d 294 [2008]). The medical records of plaintiff's orthopedic surgeon also documented that plaintiff previously had been diagnosed with degenerative arthritis in his knees and that the eventual need for a total knee replacement had been anticipated for several years prior to the subject accident. Furthermore, plaintiff's medical expert failed to address two prior accidents in which plaintiff had injured his knees, or to "address how plaintiff's current medical problems, in light of [his] past medical history, are causally related to the subject accident" (Style v Joseph, 32 AD3d 212, 214 [2006]; see Zhijian Yang v Alston, 73 AD3d 562, 563 [2010]).
Algamaly v. Mirghani


Alan D. Levine, Kew Gardens, N.Y., for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York,
N.Y. (Stacy R. Seldin of counsel),
for respondents.

DECISION & ORDER
In an action, inter alia, to recover damages for personal injuries, the plaintiff Galal S. Algamaly appeals from so much of an order of the Supreme Court, Kings County (Jacobson, J.), entered August 24, 2009, as granted those branches of the defendants' motion which were for summary judgment dismissing his claims of serious injury under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) on the ground that he did not sustain any such serious injuries within the meaning of that statute.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendants' motion which were for summary judgment dismissing the appellant's claims of serious injury under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) on the ground that he did not sustain any such serious injuries within the meaning of that statute are denied.
Under the circumstances presented in this case, we agree with the appellant's contention that the defendants failed to meet their prima facie burden of demonstrating that the appellant did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). Since the defendants did not sustain their prima facie burden, it is unnecessary to determine whether the papers submitted by the appellant in opposition were sufficient to raise a triable issue of fact (see Strilcic v Paroly, 75 AD3d 542; Takaroff v A.M. USA, Inc., 63 AD3d 1142, 1143; Coscia v 938 Trading Corp., 283 AD2d 538).
Accordingly, the defendants' motion for summary judgment should have been denied in its entirety.
Bamundo v. Fiero


Lite & Russell, West Islip, N.Y. (Justin N. Lite of counsel), for
appellant.
Richard T. Lau, Jericho, N.Y. (Kathleen E. Fioretti of counsel),
for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Spinner, J.), dated December 16, 2010, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
The defendants met their prima facie burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants made a prima facie showing, through the affirmed report of their examining orthopedist, that the injuries the plaintiff allegedly sustained to his left knee did not constitute a serious injury under the permanent consequential limitation of use and/or the significant limitation of use categories of Insurance Law § 5102(d) (see Dunbar v Prahovo Taxi, Inc., 84 AD3d 862, 863; Staff v Yshua, 59 AD3d 614). The defendants also demonstrated, prima facie, that the plaintiff did not sustain a serious injury under the 90/180 day category of Insurance Law § 5102(d) by submitting the plaintiff's deposition testimony, which revealed that he missed only 7 days of work in the first 180 days following the subject accident (see Lewars v Transit Facility Mgt. Corp., 84 AD3d 1176, 1178).
In opposition, the plaintiff failed to raise a triable issue of fact. Although the plaintiff's submissions indicated that he sustained a torn meniscus in his left knee, evidence of a torn meniscus is insufficient to raise a triable issue of fact under the permanent consequential limitation of use and the significant limitation of use categories of Insurance Law § 5102(d) absent objective proof of the extent and duration of the alleged physical limitations resulting from the injury (see Dunbar v Prahovo Taxi, Inc., 84 AD3d at 863; McLoud v Reyes, 82 AD3d 848, 849; Simanovskiy v Barbaro, 72 AD3d 930, 932). Further, in view of the plaintiff's deposition testimony that he missed only 7 days of work as a result of the subject accident, he failed to raise a triable issue of fact under the 90/180 day category of Insurance Law § 5102(d) (see Lewars v Transit Facility Mgt. Corp., 84 AD3d at1178). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.
Kolodziej v. Savarese

Richard T. Lau, Jericho, N.Y. (Linda Meisler of counsel), for appellant.
Robert E. Dash, Melville, N.Y., for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated March 4, 2011, as denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.
The defendant met his prima facie burden of demonstrating his entitlement to judgment as a matter of law by providing competent medical evidence establishing, prima facie, that the plaintiff did not sustain injuries under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957; Staff v Yshua, 59 AD3d 614; Rodriguez v Huerfano, 46 AD3d 794, 795). In opposition, the plaintiff failed to raise a triable issue of fact. The report the plaintiff submitted from her treating physician who examined her five days after the accident was unaffirmed, and, therefore, did not constitute competent medical evidence setting forth findings made contemporaneously with the accident (see Grasso v Angerami, 79 NY2d 813, 814-815; Capriglione v Rivera, 83 AD3d 639, 640).
In addition, the defendant provided evidence establishing, prima facie, that the plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law § 5102(d). In opposition, the plaintiff failed to raise a triable issue of fact (see Lewars v Transit Facility Mgt. Corp., 84 AD3d 1176; Catalano v Kopmann, 73 AD3d 963, 965).
Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.
In light of the limited scope of the notice of appeal, the defendant's contentions regarding the plaintiff's cross motion for summary judgment on the issue of liability are not properly before this Court (see Royal v Brooklyn Union Gas Co., 122 AD2d 132, 133).
Lodato v. Mahler


McCabe & Mack, LLP, Poughkeepsie, N.Y. (Kimberly Hunt Lee
of counsel), for appellant.
Sobo & Sobo, LLP, Middletown, N.Y. (Suzan D. Paras of
counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals (1) from an order of the Supreme Court, Orange County (Cohen, J.), dated August 31, 2010, which denied her motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and (2), as limited by her brief, from so much of an order of the same court dated November 15, 2010, as denied that branch of her motion which was for leave to renew her prior motion.
ORDERED that the order dated August 31, 2010, is reversed, on the law, and the defendant's motion for summary judgment dismissing the complaint is granted; and it is further,
ORDERED that the appeal from the order dated November 15, 2010, is dismissed as academic in light of our determination on the appeal from the order dated August 31, 2010; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
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 plaintiff alleged that as a result of the subject accident, his left shoulder and the cervical region of his spine sustained certain injuries, and the defendant provided competent medical evidence establishing, prima facie, that those alleged injuries did not constitute serious injuries within the meaning of Insurance Law § 5102(d) (see Perl v Meher, 74 AD3d 930; Rodriguez v Huerfano, 46 AD3d 794, 795). The plaintiff also alleged that he sustained a serious injury under the 90/180-day category of Insurance Law § 5102(d), and the defendant provided evidence establishing, prima facie, that he did not sustain such an injury. In opposition, the plaintiff failed to raise a triable issue of fact.  Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.
In light of our determination, the defendant's remaining contention need not be reached.
Roc v. Domond


Harmon, Linder & Rogowsky, New York, N.Y. (Mitchell Dranow
of counsel), for appellants.
O'Connor, McGuiness, Conte, Doyle & Oleson, White Plains,
N.Y. (Montgomery L. Effinger of counsel), for respondent.

DECISION & ORDER
In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from so much of an order of the Supreme Court, Rockland County (Garvey, J.), dated November 17, 2009, as granted the motion of the defendant Franck Vilsaint for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Franck Vilsaint for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is denied.
The defendant Franck Vilsaint failed to meet his prima facie burden of showing that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of his motion, Vilsaint relied upon, inter alia, the affirmed medical reports of Dr. Ralph Purcell, the expert orthopedic surgeon who examined the plaintiffs on January 26, 2009. During those examinations, Dr. Purcell noted significant limitations in the range of motion in the cervical and thoracolumbar regions of the plaintiff Edison Charles' spine, and significant limitations in the range of motion in the cervicothoracic region of the plaintiff Edouard Roc's spine (see Artis v Lucas, 84 AD3d 845; Ortiz v Orlov, 76 AD3d 1000, 1001; Cheour v Pete & Sals Harborview Transp., Inc., 76 AD3d 989; Smith v Hartman, 73 AD3d 736; Leopold v New York City Tr. Auth., 72 AD3d 906). Although Dr. Purcell indicated that the "[d]iminished range of motion" noted was "subjective" in nature, he failed to explain or substantiate with any objective medical evidence the basis for his conclusion that the noted limitations in the plaintiffs' respective ranges of motion were self-imposed (see Artis v Lucas, 84 AD3d at 845; Iannello v Vazquez, 78 AD3d 1121; Granovskiy v Zarbaliyev, 78 AD3d 656; cf. Perl v Meher, 74 AD3d 930; Bengaly v Singh, 68 AD3d 1030, 1031; Moriera v Durango, 65 AD3d 1024, 1024—1025; Torres v Garcia, 59 AD3d 705, 706; Busljeta v Plandome Leasing, Inc., 57 AD3d 469).
Since Vilsaint failed to meet his prima facie burden, it is unnecessary to determine whether the plaintiffs' papers submitted in opposition were sufficient to raise a triable issue of fact (see Artis v Lucas, 84 AD3d at 846; Iannello v Vazquez, 78 AD3d at 1121; Ortiz v Orlov, 76 AD3d at 1001; Bengaly v Singh, 68 AD3d at 1031; Coscia v 938 Trading Corp., 283 AD2d 538).
Tudor v. Yetman


Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C.,
Mineola, N.Y. (Aybike Donuk of counsel), for appellant.
Richard T. Lau, Jericho, N.Y. (Kathleen Fioretti of counsel), for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Palmieri, J.), entered October 12, 2010, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiff alleged, inter alia, that as a result of the subject accident, the cervical region of her spine sustained certain injuries. The defendants provided competent medical evidence establishing, prima facie, inter alia, that those alleged injuries did not constitute a serious injury within the meaning of Insurance Law § 5102(d) (see Rodriguez v Huerfano, 46 AD3d 794, 795) and, in any event, were not caused by the subject accident (see Jilani v Palmer, 83 AD3d 786, 787).

However, in opposition, the plaintiff provided competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the cervical region of her spine constituted a serious injury under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102(d) (see Dixon v Fuller, 79 AD3d 1094, 1094-1095). She also provided competent medical evidence raising a triable issue of fact as to whether those injuries were caused by the subject accident (cf. Jaramillo v Lobo, 32 AD3d 417, 418).

Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.

Walter v. Walch


Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Anne Marie
Garcia and Harold A. Campbell of counsel), for appellants.
Shulman Kessler, LLP, Melville, N.Y. (Steven Shulman of
counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Rebolini, J.), dated September 20, 2010, as denied their cross motion for summary judgment dismissing the complaint on the ground that the infant, Paige Gildard, did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendants, on their cross motion for summary judgment, failed to meet their prima facie burden of showing that the plaintiff's infant stepdaughter, Paige Gildard (hereinafter the infant), did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiff alleged, inter alia, that the infant sustained certain injuries to the cervical region of her spine as a result of the subject accident. Although the defendants asserted that those alleged injuries did not constitute serious injuries within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d at 352; Gaddy v Eyler, 79 NY2d at 955-956), the defendants' examining orthopedic surgeon recounted, in his affirmed report submitted in support of the cross motion, that the range-of-motion testing he performed during his examination revealed the existence of a significant limitation of motion in the region (see Cues v Tavarone, 85 AD3d 846).

Since the defendants failed to meet their prima facie burden on their cross motion for summary judgment, their cross motion was properly denied without considering whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (id. at 846).

Regno v. The City of New York

Marshall Conway Wright & Bradley, P.C., New York (Leonard
Steven Silverman of counsel), for appellant.
Milber Makris Plousadis & Seiden, LLP, New York (Peter J.
Morris of counsel), for respondent.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered October 4, 2010, which granted third-party defendant's motion for summary judgment dismissing the third-party complaint as against it, unanimously affirmed, with costs.

Third-party defendant Bruno Grgas, Inc. (Grgas) established prima facie that there was no written indemnity agreement in existence between the parties on the date of plaintiff's accident. The burden then shifted to third-party plaintiff-appellant Almar Plumbing & Heating Corp. (Almar). Almar failed to raise an issue of fact as to whether the agreement signed in 2009, seven months after the accident, was effective as of a date before plaintiff's accident and that the parties intended it to have retroactive effect (see Burke v Fisher Sixth Ave. Co., 287 AD2d 410 [2001]; compare Podhaskie v Seventh Chelsea Assoc., 3 AD3d 361 [2004]). Moreover, Almar failed to establish that, at the time of plaintiff's accident, Grgas was contractually obligated to procure insurance on its behalf and to name it as an additional insured. Thus, Almar's claim for breach of contract was properly dismissed (see id.).

In addition, Almar failed to demonstrate an evidentiary basis for its assertion that discovery will reveal further facts or evidence essential to opposing the summary judgment motion, and therefore, the motion was not premature (see 2386 Creston Ave. Realty, LLC v M-P-M Mgt. [*2]Corp., 58 AD3d 158, 162-163 [2008], lv denied 11 NY3d 716 [2009]).

We find Almar's remaining arguments unavailing.

Suazo v. Brown


Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for appellants.
Gorayeb & Associates, P.C., New York (John M. Shaw of
counsel), for respondent.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered April 20, 2011, which, in this action for personal injuries sustained in a motor vehicle accident, denied the motion of defendants Mitzy Transportation, Inc. and Eduardo Chacan for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Defendants failed to establish their entitlement to judgment as a matter of law on plaintiff's claim to recover for serious injuries under the 90/180-day category of Insurance Law § 5102(d). In support of their motion, defendants submitted, among other things, the reports of plaintiff's radiologist indicating disc herniations in the cervical and lumbar spines, and meniscal and ligament tears and joint effusion in the right knee. Furthermore, the postoperative report of plaintiff's surgeon diagnosed plaintiff with meniscal and anterior cruciate ligament tears. Such medical evidence, which contradicts defendants' medical evidence, raises issues of fact as to the existence and causation of plaintiff's injuries (see Martinez v Pioneer Transp. Corp., 48 AD3d 306 [2008]; Zeigler v Ramadhan, 5 AD3d 1080, 1081 [2004]). Although defendant's orthopedist concluded that plaintiff's injuries had resolved based on his examination, there was no opinion offered as to the 90/180-day claim (see Quinones v Ksieniewicz, 80 AD3d 506 [2011]; Bejaran v Perez, 78 AD3d 571 [2010]).
Accordingly, since defendants did not meet their prima facie burden, the burden of proof never shifted to plaintiff (see Martinez, 48 AD3d at 307).
Jimenez v. Polanco


Elefterakis & Elefterakis, P.C., New York (John Elefterakis of
counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for respondents.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered June 21, 2010, which, in this action for personal injuries allegedly sustained when plaintiff pedestrian was struck by defendants' motor vehicle, granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants established their entitlement to judgment as a matter of law. They submitted the affirmed reports of expert physicians showing that plaintiff's injuries were the result of preexisting and degenerative conditions (see Pommells v Perez, 4 NY3d 566, 580 [2005]). Defendants also submitted evidence showing that plaintiff was involved in another car accident years before the subject accident for which she brought a lawsuit and alleged injuries similar to those set forth in this action (see Becerril v Sol Cab Corp., 50 AD3d 261 [2008]).
In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's medical evidence did not address the degeneration found by defendants' physicians, and did not purport to explain why the prior accident could be ruled out as the cause of her current alleged limitations (see Moses v Gelco Corp., 63 AD3d 548 [2009]). Furthermore, without evidence that the injuries are related to the accident, "it does not avail plaintiff's 90/180-day claim that defendants' experts did not address [her] condition during the relevant period of time" (Reyes v Esquilin, 54 AD3d 615, 616 [2008]).

Lifson v City of Syracuse





Michael J. Longstreet, for appellant.
Donald S. DiBenedetto, for respondent.




LIPPMAN, Chief Judge:
Defendant Klink was the driver of an automobile that struck plaintiff's decedent, Irene Lifson, while she was crossing the street, causing her death. Pursuant to Klink's claim that the accident occurred while he was temporarily blinded by sun glare, the trial court instructed the jury on the emergency doctrine in his favor. We find that, under these circumstances, it was error to give the jury the emergency instruction.
Both Lifson and Klink worked in the MONY Plaza, a large office complex in Syracuse containing two 20-story high-rise office towers. MONY Plaza is located across the street from the Harrison Street Garage, where many of the employees park their cars during the work day. There is, as a result, a substantial amount of pedestrian traffic crossing Harrison Street between the Towers and the garage, particularly during rush hours. Pedestrians would commonly cross Harrison Street where the MONY Towers' exit lines up with the entrance to the garage, despite the absence of a marked crosswalk at that location.
On February 29, 2000, the day of the accident, Klink retrieved his car after work. At approximately 4:05 pm, he was attempting to make a left-hand turn onto Harrison Street from Harrison Place. Harrison Street is a three-lane, one-way road, with traffic running from east to west. Klink had been proceeding north on Harrison Place, which forms a "T" intersection with Harrison Street and was waiting to turn to the west. Although Klink worked at the MONY Towers, he testified that he was not familiar with driving this particular route because he parked in different locations throughout the city, rather than in the same place every day.
Klink testified that he stopped at the stop sign to make the left turn onto Harrison Street, but that his view of oncoming traffic was partially obstructed by parked cars in the left-hand lane of Harrison Street and he had to "creep up" in order to see the approaching vehicles. He had noticed that there were pedestrians crossing Harrison Street to his left, but he also asserted that he had looked in that direction and "cleared the road" before making the turn. He further testified that he had been looking to his right, toward the oncoming traffic when he started turning. He maintained that, when he looked back to his left, mid-turn, he was blinded by the sun, "all of a sudden." His reaction was to look down and to his right and, when he looked up, the first object he saw was Ms. Lifson. Although he applied the brakes, he was unable to avoid hitting her, having seen her only a fraction of a second prior to impact. At the time of the accident, Ms. Lifson had been wearing a red coat. There was no evidence that Ms. Lifson darted out in front of Klink's car, or that Klink was traveling at an excessive rate of speed.
Plaintiff commenced this action against Klink and the City of Syracuse [FN1] alleging causes of action in negligence and failure to study/plan for pedestrian traffic [FN2]. The ensuing trial was limited to the issue of liability. As noted, pursuant to Klink's request and over plaintiff's objection, the trial court gave the jury an emergency doctrine instruction in Klink's favor. The instruction generally conveyed to the jury that it had to determine whether Klink was in fact confronted with an emergency situation not of his own making and, if so, whether his conduct in response to that situation was that of a reasonably prudent person. The jury was free to reject both of those propositions, but if it determined that he had faced an emergency situation and acted reasonably, it was to find for Klink.
The jury returned a verdict attributing negligence to the City of Syracuse and Ms. Lifson and apportioning fault at 15% and 85%, respectively. Klink was found not negligent and the action was dismissed as against him.
The Appellate Division affirmed, finding that the emergency instruction was properly given, as there was a reasonable view of the evidence showing that the sun glare was a sudden and unforeseen occurrence (72 AD3d 1523 [2010]). One Justice dissented and would have found that Klink was not entitled to an emergency instruction because the sun glare should have been anticipated and was not unexpected in light of the circumstances surrounding the accident, including the sunny weather and the time of day. We granted plaintiff leave to appeal and now reverse.
The common-law emergency doctrine "recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency" (Caristo v Sanzone, 96 NY2d 172, 174 [2001] [internal quotation marks and citation omitted]). The doctrine recognizes that a person confronted with such an emergency situation "cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision" (Rivera v New York City Tr. Auth., 77 NY2d 322, 327 [1991] [citations omitted]). We have, however, acknowledged, that the "rationale for this doctrine . . . has been somewhat eroded by the evolution from contributory negligence to comparative negligence. With the advent of the ability of juries to allocate fault and apportion damages, the viability of the doctrine has been questioned by some jurisdictions, with a few states going so far as to abolish it" (Caristo, 96 NY2d at 174).
The trial judge must make the threshold determination whether a reasonable view of the evidence supports the existence of a qualifying emergency (see Caristo, 96 NY2d at 175). When reviewing the determination that an emergency instruction was warranted, we evaluate the evidence in the light most favorable to the party requesting the charge (see Caristo, 96 NY2d at 175).
In Caristo, the trial court gave an emergency instruction in favor of the defendant, who had been driving in icy conditions when his car slid down a hill, past a stop sign and hit the plaintiff's vehicle. We reversed and ordered a new trial, finding no view of the evidence to support the conclusion that defendant faced a qualifying emergency. Specifically, since defendant had been aware of the poor and deteriorating weather conditions that had existed for at least two hours, the resulting icy conditions on the road could not be considered "sudden and unexpected" (see Caristo, 96 NY2d at 175).
By contrast, in Ferrer v Harris (55 NY2d 285 [1982]), we found that the defendant driver, whose vehicle struck a child who ran out into the street, was entitled to an emergency doctrine charge. The defendant had testified that he was driving well below the posted speed limit and that he stopped abruptly when he saw the child step off the sidewalk and run into the street between the parked cars. We determined that "it [was] more than conceivable that a jury could conclude that this defendant was faced with an emergency" (Ferrer, 55 NY2d at 292).
The situation presented in this case bears closer resemblance to that in Caristo. While Klink did not drive this particular route often, he was familiar with the general area since he worked in the MONY Towers. Klink was about to turn to the west at a time of day that the sun would be setting. It is well known, and therefore cannot be considered a sudden and unexpected circumstance, that the sun can interfere with one's vision as it nears the horizon at sunset, particularly when one is heading west. This is not to say that sun glare can never generate an emergency situation but, under the circumstances presented, there is no reasonable view of the evidence under which sun glare constitutes a qualifying emergency.
Moreover, the error in giving the emergency instruction was not harmless. The improper charge permitted the jury to consider Klink's action under an extremely favorable standard. Because the application of that instruction to the facts presented could have affected the outcome of the trial, it was not harmless error (see e.g. Garricks v City of New York, 1 NY3d 22, 27 [2003]).
Plaintiff's remaining contentions are without merit.
Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, the amended complaint reinstated as against defendant Derek Klink, and the case remitted to Supreme Court for further proceedings consistent with this opinion.


SMITH, J.(dissenting):
Plaintiff's argument here rests on the seemingly obvious proposition that no one should be surprised to find the sun setting in the west. I admit that sunset is a foreseeable event. Yet surely everyone who has driven a car knows that good drivers are sometimes surprised to find the sun in their eyes. Drivers cannot be expected to have always at the forefront of their minds the time of day, the season of the year, the direction they are traveling, the weather conditions and the presence or absence of obstruction in a particular spot. Therefore, sun glare, as the majority appears to acknowledge, can sometimes present an emergency situation (majority op at 7).
In deciding whether an emergency instruction was properly given, the issue is not whether the emergency was foreseeable; it is whether it was sudden and unexpected. Our cases illustrate the distinction. In Ferrer v Harris (55 NY2d 285 [1982]), the defendant driver was passing a park where he knew that children played, and it was obviously foreseeable that a child would step in front of his car; but the event was sudden and unexpected when it happened, and the driver was therefore entitled to an emergency instruction. In Amaro v City of New York (40 NY2d 30 [1976]), plaintiff was a firefighter who was injured in a firehouse while responding to a fire alarm; we held that the alarm, foreseeable as it was for that plaintiff in that location, was sudden and unexpected and that the plaintiff was properly accorded the benefit of an emergency charge. In Kuci v Manhattan & Bronx Surface Tr. Operating Auth. (88 NY2d 923, 924 [1996]), the defendant's employee, a bus driver, was familiar with the intersection where the accident occurred and knew "that cars frequently turned right from the left lane in front of buses in this area." We nevertheless held that it was error to deny an emergency charge, because the driver's general awareness that such turns often happen "would not preclude a jury from deciding that, as to the events in issue in this case, the driver did not anticipate being suddenly cut off by this particular car" (id.).
Caristo v Sanzone, 96 NY2d 172 [2001]) appears to be the only case in which we have held an emergency instruction was improperly given. There, the defendant was driving in bad weather — a mixture of snow, frozen rain and hail. The claimed emergency was that he encountered a sheet of ice. We held, four to three, that in view of the driver's knowledge of the weather conditions "the presence of ice on the hill cannot be deemed a sudden and unexpected emergency" (id. at 175). Caristo thus holds that no one driving through such conditions, while exercising reasonable care, could be surprised to find that the road was icy.
A similar holding is not justified here. The record, read most favorably to Klink, shows that he was driving on a city street, where buildings sometimes do and sometimes do not block the sun, and that he was unfamiliar with the route. A jury could surely find that he did not calculate the direction of his travel, the time of day and the time of year so precisely that he expected to find the sun in his eyes when he turned. The emergency instruction was properly given.
* * * * * * * * * * * * * * * * *
Order, insofar as appealed from, reversed, with costs, amended complaint reinstated as against defendant Derek Klink, and case remitted to Supreme Court, Onondaga County, for further proceedings in accordance with the opinion herein. Opinion by Chief Judge Lippman. Judges Ciparick, Graffeo, Pigott and Jones concur. Judge Smith dissents in an opinion in which Judge Read concurs.
Decided October 13, 2011
Footnotes


Footnote 1: The action is not final as to the City of Syracuse and the City is not a party to this appeal.

Footnote 2: The action was discontinued as against a third defendant (CGU Insurance) by stipulation dated October 14, 2002.
Wilinski v  334 East 92nd Housing Development Fund Corp.



Yolanda L. Ayala, for appellants-respondents.
Souren A. Israelyan, for respondents-appellants.

CIPARICK, J.:
Some New York courts have interpreted our decision in Misseritti v Mark IV Constr. Co. (86 NY2d 487 [1995]) to preclude recovery under Labor Law § 240 (1) where a worker sustains an injury caused by a falling object whose base stands at the same level as the worker. We reject that interpretation and hold that such a circumstance does not categorically bar the worker from recovery under section 240 (1). However, in this case, an issue of fact exists as to whether the worker's injury resulted from the lack of a statutorily prescribed protective device.
I.
On September 28, 2008, at approximately 8:30 a.m., plaintiff Antoni Wilinski [FN1] and other workers were demolishing brick walls at a vacant warehouse located on premises owned by defendant 334 East 92nd Housing Development Fund Corp [FN2]. Previous demolition of the ceiling and floor above had left two metal, vertical plumbing pipes unsecured. The pipes were each four inches in diameter and rose out of the floor on which plaintiff was working to a height of approximately 10 feet [FN4]. The pipes were to be left standing until their eventual removal. Earlier that morning, plaintiff voiced concerns to his supervisor that leaving the pipes standing during demolition of the surrounding walls could be dangerous. Nevertheless, no safety measures were taken to secure the pipes. Shortly thereafter, debris from a nearby wall that was being demolished hit the pipes, causing them to topple over. The pipes fell approximately four feet and landed on plaintiff, who is 5' 6" tall. The first pipe knocked plaintiff's hard hat off from his head, then struck his right shoulder and arm, cutting his elbow. The second pipe struck plaintiff's uncovered head, cutting it and causing a concussion. Plaintiff suffered serious and lasting injuries to his shoulder, arm and spine, as well as neuropsychological injuries. Plaintiff commenced suit alleging violations of Labor Law § 240 (1) and Labor Law § 241 (6), the latter pursuant to 12 NYCRR 23-3.3 (b) (3) and (c). Plaintiff moved for summary judgment on his section 240 (1) claim and defendants cross-moved for summary judgment seeking dismissal of plaintiff's claims. Supreme Court granted plaintiff's motion for summary judgment and denied defendants' motion in its entirety. The court held that plaintiff suffered a gravity-related injury and had established entitlement to judgment as a matter of law by demonstrating that the absence of a statutorily enumerated safety device proximately caused his injury. The court also held that defendants were subject to duties under 12 NYCRR 23-3.3 (b) (3) and (c), which provided a sufficient predicate for liability under Labor Law § 241 (6).
The Appellate Division modified the order of Supreme Court by denying plaintiff's motion for summary judgment and by partially granting defendants' summary judgment motion to the extent of dismissing plaintiff's section 240 (1) claim (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 71 AD3d 538, 539 [1st Dept 2010]). Relying on our decision in Misseritti, the court stated that the accident was "not the type of elevation-related accident that [the statute] is intended to guard against . . . Since both the pipes and plaintiff were at the same level at the time of the collapse the incident was not sufficiently attributable to elevation differentials to warrant imposition of liability" (id. [internal quotation marks and citation omitted]). The court otherwise affirmed Supreme Court's denial of defendants' motion to dismiss plaintiff's section 241 (6) claims (see id.).
The parties each moved at the Appellate Division for leave to appeal to this Court. In separate orders granting those motions, the Appellate Division certified the following question: "Was the order of this Court, which modified the order of the Supreme Court, properly made?" For the reasons that follow, we modify the court's order and answer in the negative.
II.

Plaintiff's Labor Law § 240 (1) Claim
Labor Law § 240 (1) mandates that building owners and contractors:
"in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
The statute imposes absolute liability on building owners and contractors whose failure to "provide proper protection to workers employed on a construction site" proximately causes injury to a worker (see Misseritti, 86 NY2d at 490). Whether a plaintiff is entitled to recovery under Labor Law § 240 (1) requires a determination of whether the injury sustained is the type of elevation related hazard to which the statute applies (see Rocovich v Consol. Edison Co., 78 NY2d 509, 513 [1991] ["violation of the statute cannot establish liability if the statute is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury"] [internal quotation marks omitted]).
Our jurisprudence defining the category of injuries that warrant the special protection of Labor Law § 240 (1) has evolved over the last two decades, centering around a core premise: that a defendant's failure to provide workers with adequate protection from reasonably preventable, gravity-related accidents will result in liability. Beginning in Rocovich, we stated that section 240 (1)'s contemplated hazards are:
"those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured" (78 NY2d at 514).
In Rocovich, the plaintiff was injured at his work site when his right ankle and foot accidentally became immersed in hot oil in a 12-inch-deep trough (see id. at 511). We denied recovery, finding it "difficult to imagine how plaintiff's proximity to the 12-inch trough could have entailed an elevation-related risk which called for any of the protective devices of the types listed in section 240 (1)" (id. at 514-515). Subsequently, in Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494 [1993]), we refined Rocovich, stating that the reach of Labor Law § 240 (1) is "limited to such specific gravity-related accidents as [a worker] falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" (id. at 501).
In Narducci v Manhasset Bay Assoc. (96 NY2d 259 [2001]), though we noted that section 240 (1) applies to both "falling worker" and "falling object" cases, we declined to impose liability where a plaintiff was cut by a piece of glass that fell from a nearby window pane (id. at 267). We concluded that "[t]his was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected" and that the absence of such a device "did not cause the falling glass here" (id. at 268-269). Therefore, the accident was outside the scope of section 240 (1) (see id.).
In Misseritti, we applied a similar rationale. The plaintiff's decedent in that case sustained severe injuries, leading to his eventual death, when a completed, concrete firewall collapsed on top of him (see 86 NY2d at 489). Before the wall collapsed, "decedent and his co-worker had just dismantled the scaffolding used to erect the completed firewall and . . . [m]asons had not yet vertically braced the wall with the . . . planks it had on the work site" (id. at 491). We held that section 240 (1) did not apply to those facts, as the firewall did not collapse due to a failure to provide a protective device contemplated by the statute (see id.). We determined that, in fact, the kind of braces referred to in section 240 (1) are "those used to support elevated work sites not braces designed to shore up or lend support to a completed structure" (id.). Thus thefirewall's collapse, though tragic in its consequences, was simply "the type of peril a construction worker usually encounters on the job site" (id.).
Intermediate appellate courts have cited Misseritti as support for the proposition that a plaintiff injured by a falling object has no claim under section 240 (1) where the plaintiff and the base of the object stood on the same level (see e.g. Brink v Yeshiva Univ., 259 AD2d 265, 265 [1st Dept 1999] [citing Misseritti and holding that the collapse of an interior chimney at the same floor level as plaintiff was not attributable to elevation differentials to warrant the imposition of liability]; Matter of Sabovic v State of New York, 229 AD2d 586, 587 [2d Dept 1996] ["the wall which collapsed was at the same level as the work site and is not considered a falling object for purposes of Labor Law 240 § (1)"]; Corsaro v Mt. Calvary Cemetery, 214 Ad2d 950, 950 [4th Dept 1995] [holding that a concrete form standing at ground level and estimated between 12 and 20 feet high was not a falling object because it was at the same level as the work site and not an elevation related risk]). Here, the Appellate Division also relied on Misseritti in holding that the collapse of the pipes, like the collapse of a wall, was not an elevation related accident and stated that "[s]ince both the pipes and plaintiff were at the same level at the time of the collapse the incident was not sufficiently attributable to elevation differentials to warrant imposition of liability" under section 240 (1) (Wilinski, 71 AD3d at 539 [internal quotation marks omitted]). Defendants urge the Court to endorse the "same level" rule now by affirming the lower court's dismissal of plaintiff's section 240 (1) claim.
We do not agree that Misseritti calls for the categorical exclusion of injuries caused by falling objects that, at the time of the accident, were on the same level as the plaintiff. Misseritti did not turn on the fact that plaintiff and the base of the wall that collapsed on him were at the same level. Rather, just as in Narducci, the absence of a causal nexus between the worker's injury and a lack or failure of a device prescribed by section 240 (1) mandated a finding against liability (see Misseritti, 86 NY2d at 490-491; Narducci, 96 NY2d at 268-269). Thus, we decline to adopt the "same level" rule, which ignores the nuances of an appropriate section 240 (1) analysis.[FN5]
Moreover, the so-called "same level" rule is inconsistent with this Court's more recent decisions, namely Quattrocchi v F.J. Sciame Constr. Corp. (11 NY3d 757 [2008]) and Runner v New York Stock Exch., Inc. (13 NY3d 599 [2009]), neither of which are cited by the dissent. In Quattrocchi, we articulated for the first time that liability is not limited to cases in which the falling object was in the process of being hoisted or secured (see 11 NY3d at 759). Next, in Runner, the Court had occasion to apply section 240 (1) to novel factual circumstances that did not involve a falling worker or falling object (see 13 NY3d at 605). In Runner, the plaintiff was injured while he and coworkers moved an 800 pound reel of wire down a flight of four stairs (see id. at 602). The workers were instructed to tie one end of a 10-foot length of rope to the reel and then to wrap the rope around a metal bar placed horizontally across a door jamb on the same level as the reel (see id.). The plaintiff, acting as a counterweight, held the loose end as other workers pushed the reel down stairs (see id.). As the reel descended, the plaintiff was pulled horizontally into the bar, injuring his hands as they jammed against it (see id.). After a review of our precedents, we concluded that:
"the dispositive inquiry framed by our cases does not depend upon the precise characterization of the device employed or upon whether the injury resulted from a fall, either of the worker or of an object upon the worker. Rather, the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (id. at 603 [emphasis added]).
As the "elevation differential [could not] be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent" (id. at 605), we held the defendants liable under Labor Law § 240 (1) for using a "jerry-rigged device" rather than hoists or pulleys as provided under the statute (see id. at 602, 605).
Applying Runner to the instant case, we hold that plaintiff is not precluded from recovery under section 240 (1) simply because he and the pipes that struck him were on the same level. The pipes, which were metal and four inches in diameter, stood at approximately 10 feet and toppled over to fall at least four feet before striking plaintiff, who is 5' 6" tall. That height differential cannot be described as de minimis given the "amount of force [the pipes] were able to generate" (id. at 605) over their descent. Thus, plaintiff suffered harm that "flow[ed] directly from the application of the force of gravity to the [pipes]" (id. at 604; see also Rocovich, 78 NY2d at 514). However, though the risk here "ar[ose] from a physically significant elevation differential," (Runner, 13 NY3d at 604) it remains to be seen whether plaintiffs' injury was "the direct consequence of [defendants'] failure to provide adequate protection against [that] risk" (id.).
In this regard, this case is distinguishable from Misseritti in a significant way: while, in Misseritti, the kinds of protective devices section 240 (1) prescribes were shown to be inapplicable to the circumstances of the decedent's injury,here, neither party has met its burden with respect to that issue. Plaintiff asserts, but does not demonstrate, that protective devices such as blocks or ropes could have been used to secure the pipes and prevent the accident. Defendants assert, but fail to demonstrate, that no protective devices were called for.
Moreover, there is an important distinction between the facts of this case and other cases where summary judgment has been granted in defendants' favor. Here, the pipes that caused plaintiff's injuries were not slated for demolition at the time of the accident. This stands in contrast to cases where the objects that injured the plaintiffs were themselves the target of demolition when they fell (see e.g. Brink, 259 AD2d at 265). In those instances, imposing liability for failure to provide protective devices to prevent the walls or objects from falling, when their fall was the goal of the work, would be illogical. Here, however, securing the pipes in place as workers demolished nearby walls would not have been contrary to the objectives of the work plan.
We conclude, therefore, that while there is a potential "causal connection between the object[s'] inadequately regulated descent and plaintiff's injury," (Runner, 13 NY3d at 605), neither party is entitled to summary judgment on plaintiff's Labor Law 240 § (1) claim. Whether plaintiff's injuries were proximately caused by the lack of a safety device of the kind required by the statute is an issue for a trier of fact to determine.
III.

Plaintiff's claims under Labor Law § 241 (6)
Plaintiff's remaining claims arise under Labor Law § 241 (6), which provides:
"All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places."
As the statute is not self-executing, a plaintiff must set forth a violation of a specific rule or regulation promulgated pursuant to it (see Ross, 81 NY2d at 503). In this case, plaintiff invokes 12 NYCRR 23-3.3 (b) (3), which provides: "Walls, chimneys and other parts of any building or other structure shall not be left unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration."
Defendants contend that this regulation is inapplicable to the instant matter because neither wind pressure nor vibration caused the pipes to fall, collapse or become weakened. Defendants argue that the Appellate Division's interpretation of the regulation — specifically, that "a fair reading of the section . . . leads to the conclusion that the phrase by wind pressure or vibration,' does not attach to the words fall' or collapse,' but only to the immediately preceding words, be weakened'" (Wilinski, 71 AD3d at 539) — is incorrect and contradicts the purpose of the regulation.
While lower courts ruling on this issue have largely adopted defendants' proposed reading of the regulation (see German v City of New York, 14 Misc 3d 1204[A], *5 [Sup Ct, New York County 2006]; Maternik v Edgemere By the Sea Corp., 19 Misc 3d 1118[A], *5 n 11 [Sup Ct, Kings County 2008]; Gonzalez v Fortway LLC, 22 Misc 3d 1115[A], *6 [Sup Ct, Kings County 2009]), we believe that the Appellate Division's interpretation is the better one. Thus, we affirm the court's finding that plaintiff is not required to show that the pipes fell or collapsed due to wind pressure or vibration to state a claim under 13 NYCRR 23-3.3 (b) (3).
Plaintiff's second section 241 (6) claim arises under 12 NYCRR 23-3.3 (c), which provides:
"During hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means."
"The thrust of this subdivision is to fashion a safeguard in the form of continuing inspections,' against hazards which are created by the progress of the demolition work" (Monroe v City of New York, 67 AD2d 89 [2d Dept 1979]). Here, defendants failed to meet their burden of showing either that they complied with the regulation or that their non-compliance did not cause plaintiff's accident. Thus, we conclude that the courts below properly denied summary judgment to defendants on plaintiff's Labor Law § 241 (6) claims.
Accordingly, the order of the Appellate Division should be modified, without costs, in accordance with this opinion and, as so modified, affirmed, and the certified questions answered in the negative.
Wilinski, et al. v 334 East 92nd Housing Development Fund Corp., et al.
No. 168
PIGOTT, J. (dissenting in part):
Because the majority runs far afield from this Court's Labor Law § 240 (1) precedent, I dissent.
To prevail on a motion for summary judgment on the issue of liability under Labor Law § 240, a plaintiff must demonstrate that his or her injuries resulted from "dangerous conditions posed by elevation differentials" at a work site (Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491 [1995]), and that the elevation-related risk occurred "because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]).
At the time of the accident, plaintiff was demolishing the walls of a warehouse building. In front of the brick wall that plaintiff was demolishing were two metal plumbing pipes, approximately eight to ten feet in height stretching vertically from the floor on which plaintiff was standing. Two workers, using hammers and crowbars, demolished an adjacent wall about four feet away from plaintiff, causing that wall to collapse into the pipes. The pipes toppled onto plaintiff causing injury.
On this record, plaintiff has not demonstrated his entitlement to summary judgment because he failed to articulate either an elevation-related risk or an enumerated safety device that would have prevented his injuries. To the contrary, in my view, defendants are entitled to summary judgment since the uncontested facts establish that plaintiff's injuries were not the result of a hazard contemplated by section 240 (1).
In Misseritti, we ruled that the injuries sustained, caused by the collapse of a completed fire wall, were not the result of an elevation-related accident subject to the protections of section 240 (1), because the plaintiff failed to demonstrate that "the decedent was working at an elevated level at the time of his tragic accident" and it could not "be said that the collapse of a completed fire wall is the type of elevation-related accident that section 240 (1) is intended to guard against" (86 NY2d at 491). Likewise, in Melo v Consolidated Edison Co. of N.Y. (92 NY2d 909 [1998]), the plaintiff and a co-worker were attempting to cover a trench with a heavy steel plate, which was attached, by a chain with a hook, to the shovel of a backhoe. As the plate was being moved to the trench, its edge was resting on the ground or slightly above it. When the hook unfastened and the plate fell over, the plaintiff sustained injuries. We upheld the dismissal of the plaintiff's section 240 (1) claim, explaining that the statute was not implicated because "[t]he steel plate was not elevated above the work site" (id. at 911).
These principles were reinforced in Capparelli v Zausmer Frisch Assocs., decided at the same time as Narducci, wherein the plaintiff cut his right hand and wrist when he attempted to stop a falling light fixture from hitting him while stationed halfway up a ladder. There, we concluded that the plaintiff's claim did not fall within the ambit of section 240 (1), stating that the statute does not apply when "there [is] no height differential between [the] plaintiff and the falling object" (96 NY2d at 269).
The vertical plumbing pipes in this case are akin to the completed firewall in Misseritti and the steel plate in Melo. It is of no moment that the pipes rose at least four feet above the plaintiff's height, since it is undisputed that the base of the pipes were at the same level as plaintiff and his work site.
Nor did plaintiff demonstrate that an enumerated safety device would have prevented the accident from occurring. In his motion for summary judgment, plaintiff merely claimed that defendants failed to provide him with an enumerated safety device to adequately secure the pipes. But that's not enough. To merit summary judgment on the issue of liability under section 240 (1) plaintiffs must show that there was a specific, enumerated safety device that would have prevented the accident. Here, plaintiff offered only conclusory statements, thereby failing to demonstrate an issue of fact warranting trial.
In denying defendants' motion for summary judgment, the majority adds confusion and uncertainty to our decisions in Misseritti, Narducci, and Melo and to the reasonable interpretation given them by the Appellate Divisions (see e.g. Brink v Yeshiva Univ., 259 AD2d 265, 265 [1st Dept 1999]; Matter of Sabovic v State of New York, 229 AD2d 586, 587 [2d Dept 1996]; Corsaro v Mt. Calvary Cemetery, 214 AD2d 950, 950-951 [4th Dept 1995])[FN6]. I see no reason to stray from the overwhelming and settled body of case law that establishes that section 240 (1) does not apply when the base of the falling object is at the same level as the worker and the work being performed. Therefore, I would affirm the Appellate Division order.
* * * * * * * * * * * * * * * * *
Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed, and certified questions answered in the negative. Opinion by Judge Ciparick. Chief Judge Lippman and Judges Smith and Jones concur. Judge Pigott dissents and votes to affirm in an opinion in which Judges Graffeo and Read concur.
Decided October 25, 2011
Footnotes


Footnote 1: Halina Wilinski is also a plaintiff, having sued derivatively. We will refer only to the injured worker as plaintiff.

Footnote 2: Defendant 334 East 92nd Housing Development Fund Corp., (the HDFC) owned the premises located at 334 East 92nd Street in Manhattan. The HDFC executed a nominee agreement in favor of defendant East 92nd Street Senior Housing Limited Partnership, which, in turn, retained defendant Empire Developers Corp. (Empire) as general contractor. Empire hired Gramercy Group, Inc. (Gramercy) as subcontractor to demolish a vacant warehouse on the property. Gramercy employed plaintiff as a demolition worker.

Footnote 4: In his deposition testimony, plaintiff stated that the pipes were two different heights, the shorter ranging from 8 to 10 feet and the taller ranging from 10 to 12 feet.Plaintiff's coworker testified that he did not want to estimate the height of the pipes but stated that "they went up a good way."

Footnote 5: Some lower courts have already reached this conclusion. For example, in Brown v VJB Constr. Corp. (50 AD3d 373 [1st Dept 2008]), the plaintiff was injured when a 1,000 pound slab that fell from a defective clamp as it was being hoisted by a forklift landed at ground level and then tipped over, pinning the plaintiff's wrist between the slab and a wall (see id. at 375). Defendants had argued, based on Misseritti, that because the "[plaintiff] admitted that at the time of the accident, he worked at the same level as the stone panel being installed" the court should affirm the dismissal of plaintiff's section 240 (1) claim (see Brief for Defendants, 2007 WL 5830407, *14-18 [1st Dept 2007]). The Appellate Division aptly rejected that argument, finding it "of no consequence that the ultimate destination of the slab was the same level where the forklift was positioned, or where [the] plaintiff was standing" (Brown, 50 AD3d at 377). Had the court accepted the defendants' same level defense, mere circumstance would have arbitrarily precluded what we agree was clearly a viable claim under section 240 (1).

Footnote 6: The majority cites Brown v VJB Constr. Corp. (50 AD3d 373 [1st Dept 2008] as evidence that the Appellate Division has begun to reject the "same level" rule. That is not the case. The concrete slab in Brown fell from a height of three feet (id. at 376), and therefore that case does not involve a situation were the base of the object is at the same elevation as plaintiff.

Regno v The City of New York


Marshall Conway Wright & Bradley, P.C., New York (Leonard
Steven Silverman of counsel), for appellant.
Milber Makris Plousadis & Seiden, LLP, New York (Peter J.
Morris of counsel), for respondent.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered October 4, 2010, which granted third-party defendant's motion for summary judgment dismissing the third-party complaint as against it, unanimously affirmed, with costs.
Third-party defendant Bruno Grgas, Inc. (Grgas) established prima facie that there was no written indemnity agreement in
existence between the parties on the date of plaintiff's accident. The burden then shifted to third-party plaintiff-appellant Almar Plumbing & Heating Corp. (Almar). Almar failed to raise an issue of fact as to whether the agreement signed in 2009, seven months after the accident, was effective as of a date before plaintiff's accident and that the parties intended it to have retroactive effect (see Burke v Fisher Sixth Ave. Co., 287 AD2d 410 [2001]; compare Podhaskie v Seventh Chelsea Assoc., 3 AD3d 361 [2004]). Moreover, Almar failed to establish that, at the time of plaintiff's accident, Grgas was contractually obligated to procure insurance on its behalf and to name it as an additional insured. Thus, Almar's claim for breach of contract was properly dismissed (see id.).
In addition, Almar failed to demonstrate an evidentiary basis for its assertion that discovery will reveal further facts or evidence essential to opposing the summary judgment motion,  and therefore, the motion was not premature (see 2386 Creston Ave. Realty, LC v M-P-M Mgt. Corp., 58 AD3d 158, 162-163 [2008], lv denied 11 NY3d 716 [2009]).
We find Almar's remaining arguments unavailing.

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