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During the second renewal period of the Agreement, the infant Joseph Stanley II was placed into care with foster parent Anita Nurse. On June 6, 2006, while in the custody of Ms. Nurse, the infant was injured. On or about August 2006, a Notice of Claim, dated June 20, 2006, was served on the City. On December 7, 2006, a 50(h) hearing was held of plaintiff Joseph Stanley, father and natural guardian of the infant plaintiff. In January 2007, the City and Army were served with a summons and complaint in the Stanley action.

On June 21, 2007, five months after it had been served with the summons and complaint, City forwarded, by fax, a copy to Chesterfield, Army’s insurer, and requested that defense counsel be assigned to defend City. In a letter dated July 24, 2007, a Chesterfield claims representative denied the City’s request citing a review of the contract between the parties as the basis for the denial. The basis for the denial lacked any further specificity.

City submits that pursuant to the Agreement, Army is obligated to defend it in the Stanley personal injury action. Specifically, the City contends that the Stanley complaint alleges bodily injury arising out of Army’s work or operations and is thus within the scope of the insurance coverage that Army must provide to the City pursuant to the contract. Thus the City seeks a judgment declaring that Army is obligated to defend the City in the Stanley action and requiring Army to reimburse the City for fees incurred in defending the Stanley action from June 21, 2007, to date. Alternatively, City argues it should be granted summary judgment on its breach of contract claim in that Army failed to provide it with liability insurance coverage as required by the agreement between the parties.

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This action was commenced by the City of New York (City) for a declaration, pursuant to CPLR 3001, that defendant the S Army (Army) has a duty to defend the City in a negligence action currently pending in the Supreme Court of Kings County. That action is entitled Joseph Stanley and Aphrodite Stanley as parents and natural guardians of Infant Plaintiff Joseph Stanley II, and Joseph Stanley and Aphrodite Stanley, Individually, v. City of New York, The S Army of Greater New York and Anita Nurse, (the Stanley action). The City now moves for summary judgment declaring that the Army is obligated to assume the City’s defense in the Stanley action and requiring the Army to reimburse the City for attorneys’ fees incurred in defending the Stanley action from June 21, 2007, to date. Alternatively, the City moves for summary judgment on its third cause of action for breach of contract alleging that if the court issues a determination that S Army has no duty to defend the City, then S Army will have breached its obligations to the City by failing to provide it with liability insurance coverage for S Army’s operations as required by the Agreement that exists between the two. The Army opposes the City’s motion on several grounds and cross-moves for summary judgment dismissing the injury complaint.

On or about May 30, 2000, the City and Army entered into an agreement for the purchase of child welfare services (hereinafter, the Agreement). Pursuant to the Agreement, Army as contractor would provide child welfare services, including the placement of children in foster homes within their communities, to the City for the period March 1, 2000 to February 28, 2003. The contract was renewed twice, once in November 2002 and again in January 2006. The last renewal extended the agreement through February 28, 2009.

With respect to insurance, the Agreement provides, in relevant part: The Contractor shall carry paid up commercial general liability insurance covering both itself and the City with a limit no lower than $1,000,000 per occurrence and with a deductible no higher than $10,000. This policy shall provide coverage of at least as broad as that provided by ISO Form CG 00-01 and shall contain no additional exclusions of any kind whatever except for those mandated by law and those expressly accepted by the Department in writing. The City’s coverage thereunder shall be as additional insured, and such coverage shall be no narrower than that provided by ISO Form CG 20-26. Such policy or policies of injury insurance shall be obtained from a company, or companies, duly licensed to do business in the State of New York.

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A Kings Construction Accident Lawyer said that, in an action for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiffs in an underlying personal injury action, commenced in the Supreme Court, Kings County, the plaintiffs appeal from an order of the Supreme Court, Queens County, dated May 3, 2010, which denied their motion for summary judgment on the injury complaint.

The plaintiffs entered into an agreement with All American Talent (hereinafter All American), whereby All American was to rent the auditorium and three classrooms in the plaintiff Christ the King Regional High School (hereinafter the school) for two days for a dance competition. The contract required All American to name the school as an additional insured on a liability insurance policy issued to it by the defendant.

A Kings Spinal Injury Lawyer said that, complainant allegedly was injured when she fell on a sidewalk while walking from the parking lot behind the school to the front entrance in order to attend the dance competition. Levine commenced an action against the present plaintiffs, alleging that her fall was caused by a sidewalk defect. The plaintiffs sought defense and indemnification in that action from the defendant, under an additional insured endorsement of a general liability policy issued by the defendant to All American. When the defendant denied that request, the plaintiffs commenced this action for a judgment declaring that the defendant is obligated to defend and indemnify them in the underlying personal injury action. The plaintiffs moved for summary judgment on the complaint, and the Supreme Court denied the motion. We affirm, but on a ground different from that relied upon by the Supreme Court.

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A Kings Construction Accident Lawyer said that, on June 4, 2008, plaintiff, through its claims examiner, discussed the facts of the claim with the Vice-President. Additionally, he gave a sworn statement to the Company who was retained by plaintiff to investigate the claim. According to his statement: I saw when the woman fall. I was on the sidewalk. I was the only who witnessed the fall. She tripped on the hoses and fell forward on her hands there was no sign of injury and I helped her up. She walked away without asking for an ambulance. About an hour later she came back and asked for my name. At that time she told me that she had injured her arm and had seen a doctor. After she left I went out and took pictures of the hoses and the cones. After not hearing anything from the woman, I thought she was not going to make a claim, and did not think it was necessary to injury report it to my broker. Plaintiff disclaimed coverage by letter dated June 16, 2008, alleging that respondent failed to give timely notice of the claim. Plaintiff alleged that T&S was aware of the occurrence giving rise to the underlying action on about October 23, 2007, yet failed to notify them until May 21, 2008.

The issue in this case is whether plaintiff’s motion for summary judgment seeking a declaration that it is not obligated to defend or indemnify respondent on the grounds that it failed to provide timely notice of the claim in violation of the policy terms should be granted.

CPLR § 3212(b) requires that for a court to grant summary judgment, the court must determine if the movant’s papers justify holding, as a matter of law, “that the cause of action or defense has no merit.” It is well settled that the remedy of summary judgment, although a drastic one, is appropriate where a thorough examination of the merits clearly demonstrates the absence of any triable issues of fact. It is incumbent upon the moving party to make a prima facie showing based on sufficient evidence to warrant the court to find movant’s entitlement to judgment as a matter of law. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Summary judgment should be denied when, based upon the evidence presented, there is any significant doubt as to the existence of a triable issue of fact. When there is no genuine issue to be resolved at trial, the case should be summarily decided.

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A Kings Construction Accident Lawyer said that, this declaratory judgment action arises from an incident on October 23, 2007, in which complainant allegedly tripped and fell over a hose that lay across the sidewalk adjacent to the premises at 1911 Avenue M, Brooklyn, New York (“the Premises”) and sustained bodily injuries. Thereafter, she commenced a personal injury suit pending in the Supreme Court of the State of New York, County of Kings (“the underlying action”). Plaintiff, Insurance Company now submits this motion for summary judgment seeking a declaration that it is not obligated to defend or indemnify respondent Ton the grounds that it failed to provide timely notice of the claim in violation of the policy terms.

A Kings Back Injury Lawyer said that, plaintiff Insurance Company issued a commercial general liability insurance policy to respondent for the subject premises. The policy conditions coverage under the general liability part on receipt of prompt notice of an occurrence or offense that may give rise to a claim. Policy form CG 00 01 10 01, at Section IV – Commercial General Liability Conditions, at paragraph 2 states in relevant part: 2. Duties in the event of Occurrence, Offense, Claim or Suit a. You must see to it that we are notified as soon as practicable of an “occurrence” or an offense which may result in a claim. To the extent possible, notice should include: (1) How, when and where the “occurrence” or offense took place; (2) The names and addresses of any injured person and witnesses; and (3) The nature and location of any injury or damage arising out of the occurrence” or offense. “Occurrence” is defined in Section V – Definitions as follows:

“Occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.

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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.”

“A defendant can establish that the plaintiff’s injuries are not serious within the meaning of Insurance Law§5102(d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff’s claim.” “With this established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant’s submissions by demonstrating a triable issue of fact that a serious medical was sustained within the meaning of the Insurance Law. The plaintiff in such a situation must present objective evidence of the injury.”

In support of the instant motion, defendant submitted the affirmed report of defendant’s examining orthopedic surgeon. He examined the claimant on February 9, 2011, and conducted range of motion testing of his cervical and lumbar spine, right hip and right knee. He compared his finding to what was normal and concluded that plaintiff had normal range of motion in all areas, had no disability and had resolved soft tissue injuries. His examination was conducted over four years after the accident of December 19, 2006 and was silent on the plaintiff’s medical condition during the six month period following the accident. Plaintiff’s verified bill of particulars dated April 7, 2010, however, admits in paragraph six and seven, that he was confined to bed and to home for approximately three weeks and that he lost one week of work due to the accident.

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A Kings Spinal Injury Lawyer said that, by notice of motion filed on May 27, 2011, under motion sequence four, defendant moves pursuant to CPLR 3212 for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) and plaintiff’s claim is derivative to complainant’s claim. By stipulation of all parties dated September 3, 2009, plaintiffs discontinued the action against defendant. Plaintiffs oppose the motion.

A Kings Car Accident Lawyer said that, on June 11, 2009, plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk’s office. By verified answer dated September 4, 2009, defendant joined issue. On April 12, 2011, a note of issue was filed. Plaintiffs’ instant action is to recover damages for personal and derivative injuries sustained as a result of a motor vehicle accident. Plaintiffs have alleged in the complaint and bill of particulars that on December 19, 2006, at approximately 12:00 a.m., defendant negligently drove a vehicle at the intersection of West Street and Warren Street in the County and City of New York and struck the rear of plaintiff’s vehicle causing serious injury to him and derivative injury to his spouse.

A Kings Spinal Cord Injury Lawyer said that, defendant’s motion papers consist of an attorney’s affirmation and nine annexed exhibits, labeled A through I. Exhibit A is an E-Law print out. Exhibit B is a copy of the instant summons and verified complaint. Exhibit C is a copy of defendant’s verified answer dated September 4, 2009. Exhibit D is the party’s stipulation discontinuing the action against defendant. Exhibit E is a copy of plaintiff’s verified bill of particulars dated April 7, 2010. Exhibit F is a copy of the transcript of plaintiff’s deposition conducted on December 16, 2010. Exhibit G is the affirmed medical report of the doctor, pertaining to his orthopedic examination of the complainant on February 9, 2011. Exhibit H, is the radiological report of the doctor, opining on complainants cervical, thoracic and lumbar spine x-rays taken on February 8, 2007. Exhibit I is the affirmed medical report of the doctor. He in which he opined on the complainant’s MRI lumbar spine study conducted on February 23, 2007.

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The plaintiff provided the defendant with a verified bill of particulars dated November 10, 2009. In paragraphs fourteen and fifteen, the plaintiff states that she tripped as a result of an open abandoned utility hole in the sidewalk in front of the premises located at 236 Irving Avenue. At her deposition conducted on August 10, 2010, plaintiff testified that the aforementioned defect was a break “where they put the gas in, where they put in the tube”.

The defendant may rely on the admissions contained in the plaintiff’s verified bill of particulars and deposition testimony as evidence of the admitted facts. The personal injury defendant does not dispute that the defect is as an access point to a gas main. Therefore, the defendant may rely on plaintiff’s admission that the defect is an access point to a gas main.

The defendant contends that NYCRR §7-210 does not apply to him because he did not create and is not responsible for maintaining the access point to the gas main in the sidewalk in front of his property. Inasmuch as the subject property is an eight family property within the confines of the City of New York, the defendant is not exempt from the requirements of NYCRR §7-210. Although not specifically articulated by the defendant the question that remains is whether an access point to a gas main contained within a public sidewalk is considered part of the sidewalk for purposes of applying NYCRR §7-210.

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It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists. The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts. A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers. If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material dog bite issues of fact.

In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the non-movant. “The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist”. “Liability for a dangerous or defective condition is predicated upon ownership, occupancy, control or special use of the property Where none is present, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property”.

Generally, liability for injury sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality and not the abutting landowner. A landowner is not liable to a pedestrian injured by a defect in a public sidewalk abutting the landowner’s property unless the landowner caused the defective condition through negligent construction or repair, or as a result of some special use, or if a statute imposes the obligation to maintain the sidewalk on the abutting property owner.

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A Kings Construction Accident Lawyer said that, by notice of motion filed on January 6, 2011, defendant moves pursuant to CPLR 3212 for an order granting summary judgment in his favor on the issue of liability and dismissing plaintiff’s complaint. Plaintiff opposes the defendant’s motion. On February 6, 2009, plaintiff filed a summons and verified complaint with the Kings County Clerk’s Office. Defendant joined issue with a verified answer dated May 1, 2009. On November 8, 2010, a note of issue was filed.

A Kings Slip and Fall Lawyer said that, the instant action is for damages for personal injury sustained in a trip and fall incident. Plaintiff’s verified complaint and bill of particulars alleges, among other things, that on September 2, 2008, she tripped, fell and injured herself on a dangerous and defective condition in the sidewalk in front of a building owned by the defendant (hereafter “the subject sidewalk”) located in Kings County, New York. Plaintiff further alleges that the dangerous condition was due to defendant’s negligent maintenance of the subject sidewalk.

The defendant’s motion papers consist of a notice of motion, an attorney’s affirmation and seven exhibits, labeled A through G. Exhibit A contains the summons and verified complaint. Exhibit B consists of the defendant’s verified answer, and various discovery demands. Exhibit C is the note of issue. Exhibit D is a transcript of the deposition of the plaintiff taken on August 10, 2004. Exhibit E contains the plaintiff’s verified bill of particulars. Exhibit F contains color photographs of the alleged dangerous condition at the location in question. Exhibit G contains the transcript of the deposition of the defendant’s employee, taken on October 19, 2010. The plaintiff’s opposition papers consist of an attorney’s affirmation and three exhibits labeled A through C. Exhibit A is the deposition of the plaintiff taken on August 10, 2004. Exhibit B is the deposition of Maria Valera, taken on October 19, 2010. Exhibit C contains black and white photographs of the accident scene.

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