In Green Homes America, LLC v. Farm Family Casualty Insurance Company, 91 A.D.3d 1352, 936 N.Y.S.2d 829 (4th Dept., 2012), Green Homes appealed from an Order denying its motion for partial summary judgment seeking a declaration that Farm Family, as insurer of HughesCo, Inc., was obligated to defend and indemnify Green Homes. Green Homes was the installer of insulation. In September 2005 there was a merger of Green Homes and HughesCo. In November 2005, there was a fire at a home allegedly caused by Green Homes' negligence. The homeowners' insurer as subrogee brought an action against Green Homes seeking reimbursement for the loss. Green Homes commenced the above action seeking a declaration that Farm Family was obligated to defend and indemnify it in the homeowners' action. The Appellate Division held that the anti-transfer clause contained in the Farm Family policy to HughesCo prohibited HughesCo from transferring its rights under the policy to Green Homes. That clause provided that no rights can be assigned without written consent of Farm Family. As such, Farm Family was not obligated to defend and indemnify Green Homes.

In DeCarlo v. Bergemann, 91 A.D.3d 1290, 937 N.Y.S.2d 646 (4th Dept., 2012) plaintiff commenced a Labor Law action and a common law negligence action seeking damages for injuries he sustained when he fell from a ladder. The Supreme Court denied plaintiff's motion for partial summary judgment on liability with respect to the Labor Law Section 240(1) claim. The Appellate Division affirmed the Supreme Court's ruling based on plaintiff's failure to prove that the defect in the safety device was the proximate cause of his injuries. In this case, plaintiff submitted evidence in support of his motion establishing that the ladder was defective in several respects. He failed to establish that any of those defects caused him to fall.

In Paulino v. Rodriguez, 91 A.D.3d 559, 937 N.Y.S.2d 198 (1st Dept., 2012), defendants made a prima facie showing that plaintiff did not suffer a "serious injury" to her cervical spine, lumbar spine or left shoulder. The defendants relied on medical reports of plaintiff's treating physicians which conclude that four months after the accident she had full ranges of motion and that the MRI's of her cervical and lumbar spine were normal. In opposition, plaintiff submitted evidence that her subjective complaints of persistent pain were substantiated by objective medical evidence. Plaintiff provided a MRI of her left shoulder from two weeks after the accident which revealed bursitis, evidence that she tested positive for a painful arc test, a positive impingement sign test and that she suffered persistent pain despite conservative treatment. Plaintiff also submitted evidence that she continued to exhibit range of motion defects in her left shoulder after undergoing arthroscopic surgery. Plaintiff submitted no further evidence with respect to "serious injury" to her spine. The Appellate Division held that as to "serious injury" plaintiff raised an issue of fact with respect to her left shoulder and that if the trier of fact determined that the "serious injury" threshold has been satisfied, it may award damages for all injuries causally related to the subject accident which would include her spine injuries.

In Sawyer v. Rutecki, 2012 WL 414591 (4th Dept., 2012), plaintiffs owned an apartment building that was damaged in a fire. Plaintiffs brought an action against their insurance agent for breach of contract, breach of fiduciary duty and negligence. The action was based upon the agent's failure to notify the plaintiffs that their insurance policy for the apartment building was canceled prior to the fire and that the agent failed to procure new coverage for the plaintiffs. Defendants brought a motion for summary judgment to dismiss the complaint. The Appellate Division affirmed the Supreme Court's holding that defendants were entitled to summary judgment because insurance agents have no continuing duty to advise, guide or direct a client to obtain additional insurance coverage absent a special relationship.

In Delk v. Johnson, 2012 WL 414588 (4th Dept., 2012), plaintiff claimed in her bill of particulars that she sustained "serious injuries". Defendant established through two IMEs and plaintiff's deposition testimony that, although she missed time from her part-time job, she was able to perform substantially all her usual and customary activities. In opposition to the motion, plaintiff abandoned all her contentions with respect to "serious injury" with the exception of the 90/180-day category. In support of her position, plaintiff submitted a MRI report and an affirmation from her treating physician which purported an issue of fact with respect to whether she sustained a "serious injury". The Appellate Division held that plaintiff failed to raise an issue of fact with respect to the requirements under the 90/180-day category. The Court held that even if she was unable to return to her part-time work, she did not establish that her daily activities were curtailed to a great extent, nor did her evidence establish that she was disabled from working for 90 of the 180 days.

Prepared by Katy M. Hedges