Articles Posted in Long Island

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This action arises from a motor vehicle accident that occurred on April 20, 2008. The complainant man’s vehicle was impacted from the rear by the accused man’s vehicle, while both vehicles were moving in the same lane of travel. The accused man’s vehicle was operated by his son at the time of the accident. As a result of the accident, the Long Island complainant claims to have suffered serious and permanent spinal injuries, including restricted range of motion in the areas of his lumbar and cervical spine.

Based upon his bill of particulars, the complainant is asserting claims of permanent consequential and significant limitation of use of a body function or system, and a medically determined injury or impairment of a non-permanent nature, which prevented him from performing substantially all of his customary daily activities for not less than 90 days during the 180 days immediately following the accident claim.

It is well recognized that summary judgment or judgment without trial is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact. Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact. The Court’s analysis of the evidence must be viewed in the light most favorable to the complainant.

A party moving for summary judgment must make a legitimate showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. The accused parties must demonstrate that the complainant did not sustain a serious injury within the meaning of Insurance Law as a result of the accident. The accused parties have met their burden.

In support of their motion, the accused have submitted the complainant’s bill of particulars, the complainant’s deposition testimony, and the affirmed reports of the accused parties’ examining Manhattan orthopedic surgeon and radiologist.

On January 6, 2011, the accused parties’ examining radiologist reviewed the cervical and lumbar spine MRI studies taken on April 28, 2008 and May 20, 2008, respectively. Upon review, the radiologist set forth his impressions that the complainant suffers from multi-level spine injury, and that the findings on the MRI are not causally related to the reported accident of April 20, 2008. In addition, the radiologist did not find any disc herniations or bulges in the cervical spine, and only mild bulging in the lumbar spine that he attributes to the degenerative disease.

The MRI report of the cervical spine dated April 28, 2008 notes two bulging discs, which cause a slight spinal injury. The MRI report of the lumbar spine dated May 20, 2008 notes a herniated disc in the lumbar spine, also contributing to a slight spinal injury. Those MRI reports do not mention any degenerative disc disease, nor do they relate the findings to the subject accident.

Although the MRI reports and the radiologist’s review of same differ in various respects, the Court notes that, a tear in tendons, as well as a tear in a ligament or bulging disc is not evidence of a serious injury under the no-fault law in the absence of objective evidence of the extent of the alleged physical limitations resulting from injury and its duration. Thus, whether or not the radiologists agree on the interpretation of the MRI studies, the complainant must still exhibit physical limitations in order to sustain a claim of serious injury within the meaning of the Insurance Law.

The complainant was examined by the accused parties’ examining orthopedic surgeon, on January 21, 2011. The orthopedic surgeon reviewed a number of the complainant’s medical records, including the bill of particulars, MRI and nerve study reports, physical therapy and acupuncture notes, and the reports of the complainant’s doctors and chiropractor. He measured range of motion in the complainant’s cervical and lumbar spine areas with a goniometer. He also conducted various, other tests, including reflex, which were negative. He set forth his specific findings, comparing those findings to normal range of motion, and he concluded that the complainant’s cervical and lumbosacral strains are resolved. According to the orthopedic surgeon, the complainant does not exhibit any objective evidence of a disability, is capable of full time, full duty work, and is capable of carrying on his activities of daily living.

Examining the reports of the accused parties’ physician, there are sufficient tests conducted set forth therein to provide an objective basis so that his respective qualitative assessments of the complainant could readily be challenged by any of his expert(s) during cross examination at trial, and be weighed by the trier of fact. Thus, the accused parties have met their burden with respect to the permanent consequential and significant limitation of use categories of injury. As to whether or not the accused parties have sustained their burden on the 90/180 days injury claim, the Court considers the complainant’s deposition testimony submitted with the instant motion.

An accused may establish through presentation of a complainant’s own deposition testimony that a complainant did not sustain an injury of a non-permanent nature which prevented him from performing substantially all of the material acts, which constitute his usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence. Moreover, a complainant’s allegation of curtailment of recreation and household activities and an inability to lift heavy packages is generally insufficient to demonstrate that he or she was prevented from performing substantially all of his customary daily activities for not less than 90 days during the 180 days immediately following the accident.

The complainant’s deposition testimony establishes that he was working as a deliveryman at a deli prior to the accident, and that he missed only one week of work following the accident. He further admitted that he was not told by any medical professional that he could not work following the accident. Upon his return to work, he apparently suffered no change in his duties, and continued to work at the deli for almost three more years. He only ceased working at the deli because he moved to a different county. He further testified that he is currently unemployed and is not actively seeking employment.

As to his specific injuries, the complainant testified that he refused to go to the hospital on the date of the accident despite feeling pain in his neck, in addition to a headache. According to him, he received physical and chiropractic treatment through November or December 2008, at which time he ceased treatment. He did not offer a reason for his cessation of treatment. He admitted to taking only an over-the-counter pain reliever since the accident.

Aside from missing one week from work, the complainant testified that he can no longer play soccer because his lower back hurts, and that he can no longer go dancing because it hurts his back to do so. According to him, he used to play soccer with friends and go dancing once or twice a month before the accident. He also testified that he cannot carry his children, whose ages as of the deposition date in December 2010 were nine, six and four years old, or clean the bathtub. He was not forced to hire help for household chores, and he testified that he can lift grocery bags up to thirty (30) pounds. He had no future medical appointments at the time of his deposition.

Thus, the accused parties’ submission of the complainant’s deposition testimony, and affirmation of the accused parties’ physician are sufficient herein to make a legitimate showing that the complainant did not sustain a serious injury within the meaning of Insurance Law, under permanent consequential limitation and significant limitation categories of the applicable law, nor under the 90/180 category of the law.

The complainant is required to come forward with viable, valid objective evidence to verify his complaints of pain, permanent injury and incapacity. The complainant has failed to meet his burden. In opposition to the accused parties’ motion, the complainant has submitted the MRI reports previously referred to above, physical therapy and acupuncture notes, chiropractic evaluations, a pain management consultation report, and an affirmed report from his treating osteopath.

The osteopath doctor’s affirmed report fails to set forth by what means, or with what instrument, the complainant’s range of motion in the cervical and lumbar spine areas was measured. Thus, the accused has failed to establish an objective basis so that the respective qualitative assessments of complainant could readily be challenged by any of the complainant’s expert(s) during cross examination at trial, and be weighed by the trier of fact. In addition, the osteopath doctor’s report does not indicate with specificity when the examination results were obtained. Contrary to the complainant’s deposition testimony wherein he stated that he was not working because he had moved, the osteopath doctor noted that the patient was not working because of the accident. He was totally disabled. The osteopath doctor notes that the complainant’s gait was not counteracting. Thus, his report appears to be inconsistent with the complainant’s testimony and internally inconsistent as to the level of the complainant’s alleged disability.

Moreover, the osteopath doctor stated in his opinion and prognosis section that, in such type of injury there are nerves and disc pathologies as well as tearing of soft tissue components without addressing the degenerative disc disease findings of the radiologist, or the complainant’s previous accident. He also opines in general terms that there can be permanent limitations of motion to the cervical and lumbar spine due to the injuries sustained. He states in vague terms that, the patient remains impaired with regard to some functional capabilities thus his opinion that the complainant has sustained traumatic injuries as a direct causal result of the accident is rendered speculative and insufficient to raise a triable issue of fact.

The pain management physician also examined the complainant on November 25, 2008. Although he wrote that the complainant’s level of activity is severely limited, he did not report the basis for that conclusion. Instead, he noted that the complainant’s pain, at its worst, is 3 out of 10, and that the complainant continues to work as a driver. The pain management physician further states that the complainant is not limited in activities of daily living and that the complainant’s pain does not interfere with the quantity and quality of his sleep, which the complainant reported as being six hours of restorative sleep. The pain management doctor concluded that the complainant has done well with therapy and his pain is minimal he has a mild partial disability from the motor vehicle accident dated 4/20/2008. The conclusion in November 2008 is markedly at odds with his initial statement that the complainant’s level of activity is severely limited, and also at odds with the osteopath doctor’s October 2011 report that the complainant has sustained traumatic injuries.

For all the foregoing reasons, the Court has determined that the complainant has failed to raise a triable issue of fact with respect to the issue of serious injury within the meaning of Insurance Law. Accordingly, the accused parties’ summary judgment motion is granted in its entirety, and the complaint is dismissed.
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Defendant moves, pursuant to CPLR § 3212, for an order granting summary judgment due to plaintiff’s failure to meet the threshold limits set by New York State Insurance Law §§ 5102 and 5104. Plaintiff opposes defendant’s motion. A Lawyer said that, the action arises from a motor vehicle accident involving a collision between a motor vehicle operated by plaintiff and a motor vehicle owned and operated by defendant. The accident occurred at approximately 4:00 p.m. on August 21, 2007, on West Merrick Road at its intersection with Rockaway Avenue, Valley Stream, Long Island. On or about May 21, 2008, plaintiff commenced this action by service of a Summons and Verified Complaint. Issue was joined on June 19, 2008.

The issue in this case is whether The Bronx defendant is entitled to his motion for summary judgment on the ground that plaintiff did not sustained serious injury as defined under the Insurance law.

The Court held that, it is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant’s favor. Such evidence may include deposition transcripts, as well as other proof annexed to an attorney’s affirmation. If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist.

Within the particular context of a threshold motion which seeks dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a “serious injury” as enumerated in Article 51 of the Insurance Law § 5102(d). Upon such a showing, it becomes incumbent upon the non-moving party to come forth with sufficient evidence in admissible form to raise an issue of fact as to the existence of a “serious injury.” In support of a claim that the plaintiff has not sustained a serious injury, the defendant may rely either on the sworn statements of the defendant’s examining physicians or the unsworn reports of the plaintiffs examining physicians. However, unlike the movant’s proof, unsworn reports of the plaintiffs examining doctors or chiropractors are not sufficient to defeat a motion for summary judgment. Essentially, in order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a plaintiff’s injury.

Conversely, even where there is ample proof of a plaintiff’s personal injury, certain factors may nonetheless override a plaintiff’s objective medical proof of limitations and permit dismissal of a plaintiff’s complaint. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the accident and the claimed injury.

Plaintiff claims that as a consequence of the above described automobile accident with defendant, she has sustained serious injuries as defined in § 5102(d) of the New York State Insurance Law and which fall within the following statutory categories of injuries: 1) a permanent consequential limitation of use of a body organ or member; (Category 7); 2) a significant limitation of use of a body function or system; (Category 8); 3) a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment. (Category 9).
The Court said that, a minor, mild or slight limitation will be deemed insignificant within the meaning of the statute. A claim raised under the “permanent consequential limitation of use of a body organ or member” or “significant limitation of use of a body function or system” categories can be made by an expert’s designation of a numeric percentage of a plaintiff’s loss of motion in order to prove the extent or degree of the physical limitation. In addition, an expert’s qualitative assessment of a plaintiff’s condition is also probative, provided: (1) the evaluation has an objective basis and (2) the evaluation compares the plaintiffs limitation to the normal function, purpose and use of the affected body organ, member, function or system.
Finally, to prevail under the “medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment” category, a plaintiff must demonstrate through competent, objective proof, a “medically determined injury or impairment of a non-permanent nature” “which would have caused the alleged limitations on the plaintiffs daily activities.” A curtailment of the plaintiff’s usual activities must be “to a great extent rather than some slight curtailment.” Under this category specifically, a gap or cessation in treatment is irrelevant in determining whether the plaintiff qualifies.

With these guidelines in mind, this Court will now turn to the merits of the defendant’s motion. In support of her motion, the defendant submits the pleadings, plaintiff’s Verified Bill of Particulars, plaintiff’s hospital records from treatment at the Franklin Hospital Medical Center Emergency Room, the report of plaintiff’s treating physician. A board certified orthopedic surgeon, reviewed plaintiff’s medical records and conducted a physical examination of plaintiff. Based on his clinical findings and medical records review, the doctor’s diagnosis of plaintiff was “lumbar sprain with no clinical evidence of neuromotor deficits, no clinical evidence of herniated discs, radiculitis or radicupathy. Cervical sprain with no clinical evidence of neuromotor deficits, no clinical evidence of herniated discs, radiculitis or radicupathy. Right Shoulder contusion with no clinical evidence of internal derangement.” The orthopedic surgeon concluded “it is my orthopedic opinion that the claimant has no evidence of orthopedic disability related to the accident.

With respect to plaintiffs 90/180 claim, defendant relies on the deposition of the plaintiff which indicates that, at the time of the accident, she was working as a cashier and that she missed approximately two weeks of work. Plaintiff also testified that, in October 2007, she began working one day a week at Vincent’s Clam Bar in Carle Place, New York. Plaintiff further testified that she was enrolled as a full time student at Nassau Community College from September 2006 through May 2008 and that she missed one week of classes after the accident and several classes in the following months. Based upon this evidence, the Court finds that the defendants have established a prima facie case that the plaintiff did not sustain serious injury within the meaning of Insurance Law § 5102(d).

The burden now shifts to the plaintiff to come forward with evidence to overcome the defendants’ submissions by demonstrating the existence of a triable issue of fact that serious injury was sustained. To support her burden, plaintiff submits the affirmed reports of D.O., who began treating plaintiff in September 2007 (approximately two weeks after the alleged car accident), the affirmed report of an MD, FAAPMR, who conducted a pain consultation for plaintiff. All of the aforementioned affirmations and the medical reports accompanying same indicate that plaintiff had indeed incurred a serious injury.

Accordingly, the Court concludes that the affirmations and affidavit provided by plaintiff clearly raise a genuine issue of fact as to injuries causally related to the accident. Consequently, defendant’s motion for summary judgment is hereby denied.
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A man working as a millwright for a saw mill in Florida had been working at the same saw mill for the past twenty-four years. His job required him to do heavy manual labor consisting of bending from the waist to lift heavy objects and carrying the heavy objects. As time went on, the millwright gradually experienced pain in his right leg and hip. There was no specific incident that caused any spinal injury to the millwright during the course of his employment. The pain soon interfered with his duties at the saw mill and this prompted him to consult an orthopedic surgeon who immediately placed him on no-work status and referred him to a neurologist for testing.

The Long Island neurologist ran medical tests and scans on the man’s spine. The tests showed that the man had stenosis or a narrowing or choking of the spinal nerve roots in his neck and lower back. The compression of the spinal nerve roots cause the shooting pain in his hip and right leg. Spinal stenosis is a degenerative disease that occurs from repetitive bending and lifting of heavy objects.

The neurologist and the orthopedic surgeon both found that the man suffered from a degenerative disk disease and L3-4 herniated disk. They advised the millwright to take medication, sufficient rest and physical therapy to stop the pain and to arrest the further damage to his spine. The employer refused to pay the millwright’s claim for compensation and filed a complaint with the Compensation Commission.

The Judge of Compensation Claims found that stenosis is compensable because it is subsumed under “repetitive trauma theory.” He based his findings on the testimony of both the neurosurgeon and the orthopedic surgeon that the twenty-four years of consistent and repetitive lifting and bending while he worked as a millwright caused the disease. Repetitive trauma to the man’s spine caused his spinal injury.

The employer appealed the decision of the judge of compensation claims. In his appeal he claims that it was error to find that the stenosis was compensable. He posits that there was no injury or any specific event that can be pointed to as the proximate cause of the stenosis. He also claims that the stenosis was a preexisting condition which is not compensable.
The only question before the Court is whether or not the spinal injury of the millwright is compensable injury.

The Court held that the stenosis was not a preexisting condition or a preexisting disease. A preexisting condition is something personal to the employee, a medical condition that the employee brought to the workplace and exists independent of any contribution from any work-related injury and which may be aggravated by employment. If the stenosis of the millwright were a pre-existing condition then it is not compensable. In this case, the millwright did not have stenosis when he began working at the saw mill. The stenosis gradually developed over time because he over-used his back and his leg when he repeatedly bended over to lift heavy loads in the course of his employment.

The millwright and his Manhattan doctors all testified that he suffered prolonged exposure to the bending and lifting activities in the regular discharge of his duties at the saw mill. The doctors also testified that the prolonged repetition of bending and lifting has the cumulative effect of injuring or aggravating the spinal injury of the millwright. His work at the saw mill exposed him to a hazard for stenosis that is greater than the usual hazards that the general public is exposed to.

Under the repetitive trauma theory of compensability, there is no need to prove one specific instance of injury. Instead, the millwright need only show that each bump, strain and sprain which he routinely experienced in the long years at the same job is regarded as an accidental occurrence which led to his disability and need for treatment.

The Court found that the spinal injury suffered by the millwright is compensable.
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The Manhattan plaintiff alleges that on or about November 29, 2001 through December 13, 2001 he came under the medical care and treatment of MD, a physician specializing in the field of transplant surgery. On or about May 2001 through June 13, 2002, the plaintiff came under the care of MD2., a physician specializing in the field of internal medicine. He also came under the care of the defendant MD3, M.D. who holds himself out as a Long Island physician specializing in surgery. From about November 28, 2001 through December 13, 2001, the plaintiff came under the care of a Memorial Hospital located in Rochester, New York where he had his kidney donor surgery performed. The plaintiff claims, inter alia, that the defendants were negligent in his care and treatment in failing to properly perform a laparoscopic donor nephrectomy; prematurely discharging him after the surgery with a retroperitoneal hematoma; causing the pancreas injury and failure; causing an inflammatory nidus and pancreatic pseudocyst; in causing a pancreaticocolenic fistula; causing the plaintiff to undergo exploratory laporatomy and drainage of a large intra abdominal abscess and closure of a colonic fistula, and causing the plaintiff to undergo a colosotomy and colostomy take-down surgical procedure to the pancreas.

MD2 seeks an order granting summary judgment dismissing the complaint asserted against him on the basis that he did not depart from good and accepted medical practice during his care and treatment of the plaintiff and that the action is time barred as although the plaintiff saw MD2 on four occasions following his surgery, all MD2 did was order laboratory tests and CT scans and then refer the plaintiff for surgical management. MD2 claims his last involvement with the plaintiff was on January 2002 and the action was not commenced until September 2004.

MD3, who is represented by the same attorneys as MD2 seeks summary judgment dismissing the complaint on the basis that there were no departures by him that proximately caused the plaintiffs spinal injuries.

Based upon the foregoing, it is determined that there are factual issues raised by the plaintiffs expert on the issue of negligence which preclude the granting of summary judgment dismissing the complaint against MD3. In that MD1 did not comment on the issue of informed consent, the burden did not shift to the plaintiff to raise a factual issue as to lack of informed consent.

Accordingly, that part of motion (001) for dismissal of the complaint as asserted against MD3. is denied as to the causes of action premised upon negligence and informed consent.

Turning to motion (002) the defendants, MD1 and the Memorial Hospital, seek to preserve their right under Article 16 as against M.D2. and M.D3. at the time of trial in the event that this Court should grant MD2 and MD3 summary judgment dismissing the complaint against them.

It is determined that in light of the motion for summary judgment having been denied and the complaint was not dismissed as asserted against MD2 that part of the moving defendants’ application has been rendered academic and is denied as moot
Turning to that part of the motion by defendants MD1 and the Memorial, it is determined that the moving defendants have not demonstrated entitlement to the relief requested. Article 16 of the CPLR provides for several liability for non-economic loss when the liability of a joint tortfeasor is found to be fifty percent or less of the total liability assigned to all persons liable, subject to specified exceptions, see, CPLR 1601; Maria E. v West Associates. 188 Misc 2d 119 [Sup Ct, Bronx County, 2001]). In Yanatos v Pogo et ah (Spinola, J.) (Sup Ct Nassau, April 25, 2006), the court set forth that since a motion for summary judgment is the functional equivalent of a trial, it follows therefrom that any defendant intending to obtain the limited liability benefits of Article 16 of the CPLR must, under penalty of forfeiture, adduce proof on point in admissible form in response to the prima facie case presented, citing Drooker v South Nassau Communities Hospital. 175 Misc2d 181 [NY Sup. Ct. 1998]). In Drooker.supra, following the granting of summary judgment in favor of a physician in a medical malpractice case, the remaining defendants who failed to oppose said physician’s prima facie showing of entitlement to summary judgment and failed to make any evidentiary showing regarding that physician’s responsibility for plaintiffs spinal injury, thereby forfeited their opportunity to limit their liability with respect to that physician’s acts or omissions under Article 16 of the CPLR.
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This is an action to recover damages for personal injuries allegedly sustained by the plaintiff in a motor vehicle accident on June 24, 2006 at approximately 8:45 a.m. The accident occurred at Hill Avenue at its intersection with Hempstead Turnpike, Hempstead, New York. Plaintiff alleges that he was stopped at a red light when the vehicle owned and operated by defendant rear-ended plaintiff’s vehicle. The police accident report states that “motor vehicle #1 in collision with motor vehicle #2.”

In his bill of particulars, a Lawyer said that plaintiff alleges that he sustained the following injuries: subligamentous central posterior disc herniation at C4-5, subligamentous central posterior disc hernation at C5-6, impinging on the anterior aspect of the spinal canal posterior lumbar herniation at L4-5, and straightening of the lumbar curvature.

A Long Island doctor said that, defendant moves for summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d). In support thereof, defendant relies uponplaintiff’s deposition testimony and an affirmed medical report of the doctor. At his examination-before-trial, plaintiff testified to his inability to perform activities due to his injuries sustained in the accident. Specifically, plaintiff was physically restricted and not able to swim, mountain bike and exercise.

On June 8, 2010, the doctor performed an independent orthopedic evaluation of plaintiff. His examination of the cervical spine revealed “maintenance of the normal cervical lordosis. Range of motion reveals flexion to 50 degrees (50 normal), extension to 45 degrees (45 normal), right and left lateral bending to 45 degrees (45 normal) and right and left rotation to 80 degrees (80 normal). There is right and left sided paracervical tenderness. There is no spasm noted upon palpation. Compression and Spurling tests are negative. Deep tendon reflexes are 2+ and equal in the upper extremities. Upper extremity strength is 5/5. There is no noted atrophy. Sensation is intact.” His examination of the thoracolumbar spine revealed “maintenance of the normal lumbar lordosis. Range of motion of flexion is to 90 degrees (90 degrees normal), extension to 30 degrees (30 degrees normal), right and left lateral bending to 30 degrees (30 degrees normal) and right and left rotation to 30 degrees (30 degrees normal). Straight leg raise testing is negative, performed to 90 degrees bilaterally in the sitting position. There is no paralumbar tenderness. There is no spasm noted upon palpation. Lasegue and Fabere tests were negative. Deep tendon reflexes are 2+ and equal. Lower extremity strength is 5/5. Sensation is intact. There are no signs of lower extremity atrophy.” His impression was: cervical sprain, resolved; lumbar sprain, resolved. Finally, he opined that plaintiff has “no orthopedic disability at this time and that there is no residual or permanency.”
The issue in this case is whether plaintiff sustained serious injury as defined under Insurance Law.

The Court said that, as a proponent of the summary judgment motion, defendant had the initial burden of establishing that plaintiff did not sustain a causally related serious injury under the permanent consequential limitation of use, significant limitation of use and 90/180-day categories. Defendant’s medical expert must specify the objective tests upon which the stated medical opinions are based and, when rendering an opinion with respect to plaintiff’s range of motion, must compare any findings to those ranges of motion considered normal for the particular body part.

The Manhattan defendants established their prima facie entitlement to judgment as a matter of law by submitting, the affirmed medical reports of the doctor who examined plaintiff in 2010 and found no significant limitations in the ranges of motion with respect to any of his claimed spinal injuries, and no other serious injury within the meaning of Insurance Law § 5102(d) causally related to the collision.

The burden now shifts to plaintiff to demonstrate, by the submission of objective proof of the nature and degree of the injury, that she sustained a serious injury or there are questions of fact as to whether the purported injury, in fact, is serious. In order to satisfy the statutory serious injury threshold, a plaintiff must have sustained an injury that is identifiable by objective proof; subjective complaints of pain do not qualify as serious injury within the meaning of Insurance Law § 5102(d).

Plaintiff must come forth with objective evidence of the extent of alleged physical limitation resulting from injury and its duration. That objective evidence must be based upon a recent examination of the plaintiff. Even where there is medical proof, when contributory factors interrupt the chain of causation between the accident and the claimed injury, summary dismissal of the complaint may be appropriate. Whether a limitation of use or function is significant or consequential relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of a body part.

It has been repeatedly held that “the mere existence of herniated or bulging discs, and even radiculopathy, is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration”.
Moreover, “a defendant who submits admissible proof that the plaintiff has a full range of motion, and that she or he suffers from no disabilities causally related to the motor vehicle accident, has established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), despite the existence of an MRI which shows herniated or bulging discs “.

In opposition to the motion and in support of his cross-motion, plaintiff submits, the parties’ deposition testimony; the police accident report. Contrary to plaintiff’s contention, he has not raised a triable issue of fact as to whether he sustained a serious injury as defined by Insurance Law §5102(d). The affirmations from plaintiff’s chiropractors lack probative value as they are not in proper form. Moreover, these chiropractors do not set forth any foundation or objective medical basis supporting the conclusions they reached.

The remaining submissions of plaintiff, which consisted of unaffirmed magnetic resonance imaging reports of plaintiff’s lumbosacral spine and cervical spine injury is also without probative value as they are unaffirmed. In addition, plaintiff failed to explain or address the prolonged gap in medical treatment. Finally, plaintiff has not sustained his burden under the 90/180 day category which requires plaintiff to submit objective evidence of a “medically determined injury or enforcement of a non-permanent nature which prevents the injured person from performing substantially all of the natural acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury”. When construing the statutory definition of a 90/180 day claim, the words ‘substantially all’ should be construed to mean that the person has been prevented from performing his usual activities to a great extent, rather than some slight curtailment.”

Specifically, plaintiff has no admissible medical reports stating that plaintiff was disabled, unable to work or unable to perform daily activities for the first ninety (90) days out of one hundred eighty (180) days, Plaintiff is only able to proffer his own self-serving proof that he missed 3-4 days of work; that he couldn’t go swimming in the ocean while on a working trip to Mexico; that he couldn’t go mountain biking anymore; or exercise as frequently as he used to.
In light of our determination, plaintiff’s motion for summary judgment on the issue of liability has been rendered moot. Accordingly, the Court held that the plaintiff’s motion is denied. The Defendant’s motion is granted. It is hereby ordered, that the plaintiff’s Complaint is dismissed.
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This complaint sets forth a first cause of an action sounding in negligence arising out of the care and treatment rendered to plaintiff wherein she sustained second degree burns to her feet while bathing in a tub on October 10, 2004 while a resident at Siena Village, owned by the a health system of Long Island, Inc. and located at Smithtown, New York. The defendant, was an employee of the facility and the personal care aide for the plaintiff when the spinal injury occurred. The plaintiff resided at Siena Village where she received custodial care and housing. The second cause of action is premised upon the alleged negligent hiring of defendant employee by the defendant health System of Long Island, Inc.

In the answer submitted by defendant employee, a cross-claim has been asserted against the co-defendant health System of Long Island, Inc. for indemnification and/or contribution. In the answer submitted by the health system, a cross-claim has been asserted for judgment over against “Kenneth Doe” who is not named in the complaint, and a second cross-claim for indemnification from defendant employee.

According to the court, the common-law right to indemnification exists pursuant to a contract implied in law and is rooted in equity; it is a device to prevent unjust enrichment. Implied indemnity is frequently employed in favor of one who is vicariously liable for the tort of another, but the principle is not so limited and has been invoked in other contexts as well. Nonetheless, an indemnity cause of action can be sustained only if the third-party plaintiff and the third-party defendant have breached a duty to plaintiff and also if some duty to indemnify exists between them”.

“Indemnity involves an attempt to shift the entire loss from one who is compelled to pay for a loss, without regard to his own fault, to another person who should more properly bear responsibility for that loss because he was the actual wrongdoer. The right to indemnification may be created by express contract, but the contract is often one implied by law to prevent an unjust enrichment or an unfair result. In some instances the law imposes liability on a person who has in fact committed no actual wrong, but who is held responsible for a loss as a matter of social policy because he is in a position to spread the risk of loss to society as a whole.

Where one who has committed no actual wrong is held vicariously liable for the wrongdoing of another, he has a right to indemnification from the actual wrongdoer. Mere use of the term indemnification’ is insufficient to evade the bar of N.Y.Gen. Oblig. Law §15-108. A proper basis for the claim must be stated. If there is actual wrongdoing by the person seeking to assert an indemnification claim, that claim is not viable” (County of Westchester v Welton Becket Associates et al,102 AD2d 34, 478 NYS2d 305 [2nd Dept 1984]).

In the instant action it has not been demonstrated that there was a duty to indemnify as relates to the co-defendants nor has it been demonstrated that CHSLI is vicariously liable for the actions of Joanne Stokes.

Accordingly, that part of motion (002) by defendant employee which seeks dismissal of the second cross-claim which seeks indemnification, asserted by co-defendant health system against her, is granted and the second cross-claim for indemnification asserted by defendant health system is dismissed with prejudice.

Turning to motion (003) wherein the Health System of Long Island seeks summary judgment dismissing the complaint, it is determined that the health system has not demonstrated prima facie entitlement to summary judgment dismissing the complaint.

The moving papers raise further factual issues in that an employee estified that she notified the supervisor of the excessively hot water and fluctuating water temperature, and he denies ever having been notified of the same. Thus there are factual issues raised in the moving papers submitted by defendant health system which preclude summary judgment.
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This is an action to recover damages for serious personal injuries allegedly sustained by plaintiff as a result of a motor vehicle accident that occurred on Route 109 at or near the overpass of the Southern State Parkway, County of Suffolk, New York on March 9, 2005. Plaintiff claims in his complaint that he sustained serious permanent injuries as defined in Section 5102 (d) of the Insurance Law and economic loss greater than basic economic loss, as defined in Section 5102 (a) of the Insurance Law. A Suffolk Personal Injury Lawyer said that, defendants now move for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a “serious injury” as defined in Insurance Law § 5102 (d). Plaintiff cross moves for partial summary judgment on liability grounds and for an inquest as to the assessment of damages. Plaintiff opposes defendants’ motion, and defendants have filed a reply.

A Lawyer said that, in support of this motion defendants submit, the pleadings; the plaintiff’s verified bill of particulars; plaintiff’s Hospital emergency department records, including x-ray reports of plaintiff’s cervical and thoracic spine; the affirmed report of defendant’s examining neurologist,; the affirmed report of defendant’s examining radiologist,; the affirmed report of defendant’s examining orthopedist,; plaintiff’s employment verification records dated March 1, 2006; and plaintiff’s deposition testimony.

A Long Island doctor said that, plaintiff claims in his verified bill of particulars that he sustained, among other things, disc bulges of the cervical spine injury and ventral cord abutment; a limited range of motion of the cervical spine injury; weakness in the upper extremities; and lumbar radicular dysfunction. Plaintiff also claims that he sustained scarring, anxiety and mental suffering. Additionally, plaintiff claims that he was totally disabled for about three weeks and that he remains partially disabled to date. Lastly, plaintiff claims that he sustained a serious injury in the categories of a permanent loss of use, a permanent consequential limitation, a significant limitation and a non-permanent injury.

Plaintiff’s Hospital emergency department records for treatment rendered on the day of the accident show that he complained of pain in his neck and upper back. X-rays of plaintiff’s cervical and thoracic spine performed at the hospital that day show no signs of fracture, dislocation, significant subluxation, or soft tissue abnormalities. The hospital radiologist opined that x-rays of plaintiffs thoracic spine taken that day showed mild degenerative changes and minimal biconcave scoliosis of the lower-thoracic-upper lumbar spine. Based on these findings, the attending physician diagnosed plaintiff with neck/back pain, but also found that there were no injuries to his head, shoulder, arm or leg. In his report dated August 30, 2006, the neurologist doctor states that he performed an independent neurological examination of plaintiff, and his findings include a motor examination that was “5/5” in all extremities with normal tone; DTR’s that were “2 +” and symmetrical; an intact sensory examination; and a normal gait. The doctor opined that plaintiff had sustained sprains of the cervical and thoracic spine injury, but that there were no objective findings to indicate a neurological disability. He also concluded that plaintiff had a pre-existing history of a degenerative condition of the spine. In his report dated October 23, 2006, the orthopedic doctor states that he performed an independent orthopedic examination of plaintiff on that date, and his findings include no muscle atrophy; a negative straight leg raising test; and motor strength that was “5/5.” His testing also showed a normal range of motion of the cervical spine, thoracic spine, shoulders, elbows, wrists and hands as well as no tenderness, heat, swelling, erythema or effusion of the upper or lower extremities. Additionally, he noted that plaintiff’s medical history included a prior neck and back injury. He opined that plaintiff had sustained sprains on the cervical and lumbar spine which exacerbated pre-existing injuries.

A Lawyer said that, plaintiff Employment Verification records show that he was employed continuously with the from April 20, 1998 until the date of the verification, March 1, 2006. These records also show that plaintiff was paid in full from an LIRR sick bank from March 11, 2005 through to March 15, 2005, and from March 21, 2005 through to March 31, 2005, and that he worked on March 16 and April 1, 2005. Plaintiff testified that he was employed on a full-time basis as a plumber at the time of the accident. His duties included maintaining the plumbing systems at different stations and outlying buildings. He went to work the Friday after the accident, but he was sent home after a few hours. In total, he missed approximately three weeks of work as a result of his personal injuries. Upon his return, he performed the same duties as before, except that he was unable to lift heavy equipment or materials. He also has difficulty gardening and engaging in various sporting activities such as waterskiing. In addition, he restricts himself to a 40-hour week and has turned down available overtime since the accident. Plaintiff further testified that he was injured in a prior motor vehicle accident about 20 to 25 years ago, at which time he received some chiropractic treatment to his back.
The issue in this case is whether plaintiff sustained serious injury as defined under the Insurance Law.

Insurance Law § 5102 (d) defines “serious injury” as “a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.”
The Court said that, in order to recover under the “permanent loss of use” category, plaintiff must demonstrate a total loss of use of a body organ, member, function or system. To prove the extent or degree of physical limitation with respect to the “permanent consequential limitation of use of a body organ or member” or a “significant limitation of use of a body function or system” categories, either a specific percentage of the loss of range of motion must be ascribed or there must be a sufficient description of the “qualitative nature” of plaintiff’s limitations, with an objective basis, correlating plaintiff’s limitations to the normal function, purpose and use of the body part. A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute.

It is for the Court to determine in the first instance whether a prima facie showing of “serious injury” has been made out. The initial burden is on the defendant “to present evidence, in competent form, showing that the plaintiff has no cause of action”. Once defendant has met the burden, plaintiff must then, by competent proof, establish a prima facie case that such serious injury exists. Such proof, in order to be in a competent or admissible form, shall consist of affidavits or affirmations. The proof must be viewed in a light most favorable to the nonmoving party, here, the plaintiff.

By their submissions, the Court held that the defendants made a prima facie showing that plaintiff did not sustain a serious injury. Defendants’ examining orthopedist found, upon a recent examination, that plaintiff had a normal range of motion of the upper extremities with no atrophy. Similarly, defendants’ examining neurologist, round, upon a recent examination, that plaintiff had normal range of motion of the cervical and lumbar spine, with no paravertebral tenderness or spasm. Furthermore, defendants’ examining radiologist opined, based upon his review of plaintiff’s MRI studies, that plaintiff had a multilevel preexisting degenerative condition of the cervical spine, but that there was no evidence of any causally related injuries. Defendants remaining evidence, including plaintiff’s deposition testimony, also supports a finding that he did not sustain a serious injury. As defendants have met his burden as to all categories of serious injury alleged by plaintiff, the Court turns to plaintiff’s proffer.

In opposition to this motion, plaintiff submits, among other things, the unaffirmed report of plaintiff’s treating radiologist; and the affirmed report of plaintiffs treating osteopath. Initially, the unsworn report of the doctor that was discussed in detail by defendant’s examining orthopedist has been considered as it is admissible. In his report, the doctor states that he performed MRI studies of plaintiff’s cervical spine, and his findings include straightening of cervical lordosis; diffuse disc dehydration; and posterior disc bulges. While he observed a ventral cord abutment at C-4/5 through C-6/7, he also noted that there were no significant protrusions into the neural canal, recesses or foramina. He opined that these studies showed no focal prevertebral or posterior paraspinal abnormal masses.

The Court held that, plaintiff has provided insufficient medical proof to raise an issue of fact that he sustained a serious injury under the no-fault. Initially, it is noted that plaintiff failed to submit any medical proof addressing his prior neck/back injuries as well as his condition relative to thereto. In this regard, the doctor failed to indicate awareness that plaintiff had previously injured his neck/back, therefore, any conclusion on his part that plaintiff’s claimed injuries were causally related to the subject incident was mere speculation. The doctor also failed to adequately address the preexisting degenerative condition of plaintiff’s cervical spine as diagnosed by his own treating radiologist only two months after the accident, as he did not provide a sufficient foundation or objective medical basis supporting the conclusion which he reached, namely, that the alleged conditions were causally related to or exacerbated by the accident. Further, while the doctor records plaintiffs complaints of pain, he has failed to present medical proof that was contemporaneous with the accident showing any initial range of motion restrictions for the affected body parts. Additionally, the report of the doctor tends to show that plaintiffs injuries, which consisted of a cervical and thoracic sprains/strains and myofascial derangements, were mild, minor or slight. In any event, the doctor has not adequately explained the approximate 14-month gap in treatment between the conclusion of plaintiffs last exam on March 30, 2006 and his most recent examination of plaintiff in May 3, 2007, shortly after the filing of defendants’ motion. Thus, plaintiff’s unexplained gap in medical treatment was in essence, a cessation of treatment that is not addressed by competent proof. Additionally, the proof submitted by the plaintiff is insufficient to raise a triable issue of fact.

Moreover, since there is no evidence in the record demonstrating that plaintiff’s alleged economic loss exceeded the statutory amount of basic economic loss, his claim in this regard must be dismissed. Accordingly, the Court held that this motion for summary judgment is granted and plaintiff’s cross motion is denied as moot.
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The Long Island complainant man went to the emergency room of a hospital complaining of weakness in his lower extremities and severe lower back pain. He had gone to the emergency room five days earlier complaining of left hip and back pain, and was sent home with pain medication. The pain persisted, and he began experiencing weakness in his legs, twice falling or nearly falling when his legs buckled. He was able to walk, though with difficulty. During his emergency room visit, radiographic tests, including a myelogram, were ordered, and the man was admitted to the hospital.

On the morning of 25 June 1994, the accused Manhattan anesthesiologist explained to the complainant man that he would need to administer a caudal block rather than general anesthesia for the myelogram because the man needed to be awake during the test. The radiologist performed the myelogram around 3:00 p.m. that day. The next morning, the man discovered he felt no pain, was numb from his hips down, and could not move his legs. The anesthesiologist and the nursing staff blamed the numbness and inability to move on the anesthesia, telling the man it had not yet worn off. The man thought this was strange because, in his experience, it usually took only four to five hours for the effects of anesthesia to wear off. He thought either something had gone wrong or his condition was worse than the doctors originally thought.

The myelogram revealed massive disc herniation causing spinal injury, and the accused man’s attending physician and neurologist advised the man that he urgently needed surgery. The neurologist performed a laminectomy and discectomy. However, the man remained paralyzed following the surgery.

He was discharged from the hospital on 1 July 1994 and had six subsequent office visits with the neurologist. On 3 August 1994, the man visited another doctor complaining of left shoulder pain. The doctor’s notes from that initial visit state that the man had back surgery about five weeks ago. He is paralyzed from the waist down. He states that he is paralyzed from a myelogram.

On 8 June 1995, the man served the neurologist with a notice of intent to initiate medical malpractice litigation and subsequently filed suit on 4 October 1995. The complainant man did not serve the attending physician, the anesthesiologist, the radiologist, and their employers with a notice of intent to initiate litigation until 3 January 1997. On 9 May 1997, he amended the complaint against the neurologist to add the attending physician and the others as accused.

The accused parties moved for summary judgment, arguing that the man served the notice of intent beyond the limitations period, and thus, his action against them is barred. Ruling that the statute of limitations began to run no later than 3 August 1994, the date of the man’s visit and statement to his latest doctor, the trial court entered final summary judgment for the accused parties. The court noted that the man’s paralysis is the type of injury which should start the limitations period running immediately. The man argues on appeal that the paralysis he suffered after undergoing the myelogram and surgery is not the type of injury which, standing alone, would have indicated that medical negligence possibly had occurred, thereby triggering the statute of limitations. He argues further there was a genuine factual issue regarding whether he told his latest doctor that he had been paralyzed from the myelogram or since the myelogram.

An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence.
The nature of the injury, standing alone, may be such that it communicates the possibility of medical negligence, in which event the statute of limitations will immediately begin to run upon discovery of the injury itself. On the other hand, if the injury is such that it is likely to have occurred from natural causes, the statute will not begin to run until such time as there is reason to believe that medical malpractice may possibly have occurred.

The evidence before the trial court showed the man was ambulatory before entering the hospital, though he was experiencing weakness in his legs and severe lumbar back pain. More than twelve hours after undergoing the myelogram, the man discovered he was still numb from his hips down and his legs were paralyzed. Although medical staff told him the numbness and paralysis were caused by the anesthetic which had not worn off, he reasonably suspected something was amiss because, in his experience, anesthetic effects dissipate in four to five hours. The man’s paralysis following the myelogram was sufficient to communicate the possibility of medical negligence. Therefore, the two-year statute of limitations began to run on or about 26 June 1994. As such, service of the notice of intent on 3 January 1997 occurred beyond the limitations period, and the man’s medical malpractice action against the accused is barred.
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This involves a case where the court denied the petition stating that petitioner was not eligible for an RSSL Sec. 607-b pension when she applied for pension for benefits.

Petitioner began working as an EmergencyMedical Technician (EMT) with the FDNY in 1992. She is a Tier 4 Member of NYCERS pension fund. In 1995, petitioner was involved in a line of duty ambulance accident, sustaining spinal injuries. As a result, petitioner was out of work on paid sick leave for approximately 18 months. When she returned to work, it was determined that she could no longer work on an ambulance because of her injuries. She was assigned to work as a dispatcher. Over time, her condition worsened and she developed severe pain and locking of her hands. Petitioner, on May 10, 2006, was diagnosed with bilateral carpal tunnel syndrome, disc herniations at C5-6 and L5-S1, left radiculopathy, tendinitis, fluid in the distal ulnar joint and bi-lateral ulnar neuropathy. Accordingly, on that day, petitioner stopped working for medical reasons and remained on an unpaid medical leave of absence. Then, on August 10, 2006 and September 28, 2006, petitioner underwent carpal tunnel release surgeries.

FDNY, by letter dated July 30, 2008, advised petitioner CARTER that because she had been absent and unable to perform her job since April 2, 2007, her employment was subject to be terminated on August 11, 2008.

Petitioner, in support of the instant petition, contends that her medical condition and history, as discussed above, establish that she was disabled as the result of a line of duty injury. Respondents, in opposition, argue that petitioner is not entitled to receive an RSSL § 607-b pension, since an applicant must still be employed in an eligible title when applying pursuant to RSSL § 607-b (a). Thus, since petitioner’s employment had been terminated as of August 11, 2008 and her application was not filed before that date, she was ineligible to receive RSSL § 607-b benefits.

RSSL § 607-b (a), which provides for a line of duty disability retirement pension, states:

Any member of the New York city employees’ retirement system who is employed by the city of New York or by the New York city health and hospital corporation in the position of emergency medical technician or advanced emergency medical technician … who … becomes physically or mentally incapacitated for the performance of duties as the natural and proximate result of an injury, sustained in the performance or discharge of his or her duties shall be paid a performance of duty disability retirement allowance equal to three-quarters of final average salary.

The Court is compelled to conclude that because RSSL § 607-b (a) does not reference or incorporate the language of RSSL § 605(b)(2), petitioner in The Bronx is not entitled to the extended time to file as is provided in the latter provision. Accordingly, RSSL § 607-b (a) must be interpreted as written, applying only to “[a]ny member of the New York city employees’ retirement system who is employed by the city of New York or by the New York city health and hospital corporation in the position of emergency medical technician or advanced emergency medical technician [ emphasis added ].”

Thus, it follows that the Long Island Court has no authority to afford petitioner the relief that she seeks. In so holding, it is noted that any request for relief on the ground that the Legislature intended to provide better protection for EMTs who are injured in the line of duty would be better addressed by the Legislature. ( See Matter of Lidakis v. NYCERS, 27 Misc.3d 1150, 1157 [2010], which discusses the Legislature’s response to the Court of Appeals’ Roberts v. Murphy decision, with the amendment of RSSL § 607-b [L.2004, c. 725, § 1, eff. Nov. 24, 2004], to specifically provide that an EMT NYCERS’ member who makes an application for § 607-b retirement shall be entitled to invoke the medical review procedure provided for in RSSL § 605[e] ). This is also supported by the above quoted provisions of the SPD Booklet and by the retirement applications, as well as the general principle of law that provides th.at the construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld.
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The Hudson Bridge in New York was being repaired. The Bridge and Tunnel Authority, the owner of the Hudson Bridge hired a general contractor to do the repairs. The general contractor hired a subcontractor. Under the subcontract, the subcontractor was supposed to obtain insurance in behalf of the bridge owner and the general contractor. The insurance policy of the subcontractor was supposed to cover all expenses for personal injury suits that may arise from the time that the subcontractor was doing repair work under the subcontract.
On August 11, 2003, a male employee of the subcontractor slipped and fell on a makeshift inclined ramp that led from the worksite to the temporary office also at the construction site. The employee of the subcontractor sustained serious spinal injury. His slip and fall resulted in herniated discs of his cervical and lumbar spine and an impinged nerve on the spine. The employee was confined to his home for one month after the accident. He was ordered to rest in bed for five months from September 2004 until February 2004. The employee needed spinal fusion surgery to fully recover from his injuries.

He filed a damage suit under common law negligence and under labor law. He sued the owner of the Hudson Bridge and the general contractor. The man did not include in his damage suit his own employer, the subcontractor. The man claimed for lost earnings and for future loss of earnings due to the spinal injury he sustained. No notice was given by any of the parties to the insurer of the subcontractor until two years had passed from the time that the suit was filed by the employee of the subcontractor.

Notice was finally given to the subcontractor’s excess insurer when the parties were negotiating a settlement of the employee’s claims. The Long Island employee agreed to settle his case in consideration of the payment of $5,500,000.00. The primary insurer of the owner of the Hudson Bridge and the owner, the primary insurer of the general contractor and the general contractor all pitched in to raise the amount to settle the employee’s case. But they were still short of funds. They then asked the excess insurer to cover the rest of the amount. The excess insurer then asked the excess insurer of the subcontractor to contribute its share towards the settlement of the employee’s claims.

The primary insurer of the subcontractor from Staten Island refused to honor the claim on the ground that they were informed of the claim two years after the employee had filed the claim. The primary insurer of the subcontractor refused the claim on the ground that the lateness of the information regarding the claim deprived them of their right to investigate the claim and to assess their proportionate exposure and liability to pay the claim.

This action was brought by the primary insurer of the owner of the Hudson Bridge and the primary insurer of the general contractor to claim payment from the primary insurer of the subcontractor its share. The primary insurers of the owner and general contractor argue that under the insurance contract, the written notice must be given as soon as practicable. The necessity of asking for a contribution from the excess insurer did not arise until the parties had arrived at a price for the negotiated settlement and the liabilities of the insurers had been calculated. Only then did it become obvious that the excess insurers would also need to contribute a share. They also claim that even after written notice was given to the excess insurer of the subcontractor, the excess insurer did not notify them that the claim would be denied by the excess insurer.

The question then to be resolved is: when is it reasonably necessary for the excess insurer to be informed? The Court held that the excess insurer must be informed at the time that the insured first learned of the accident or when the insured first learns of the grounds for disclaiming liability or denying coverage. While it may be true that the notice of claim given to the excess insurer was given late, the excess insurer’s denial of coverage is ineffective because it did not communicate it y to denial of coverage as soon as reasonable possible. That is to say, even the excess insurer was guilty of having given late notice to the insured.
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