Smith v Ameriprise Auto & Home Ins. Agency, Inc .

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Smith v Ameriprise Auto & Home Ins. Agency, Inc . 2017 NY Slip Op 33385(U) December 19, 2017 Supreme Court, Steuben County Docket Number: Index No. 2015-1280 CV Judge: Marianne Furfure Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. E2015-1280CV FILED: STEUBEN COUNTY CLERK 12/26/2017 10:30 AM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 04/13/2021 State of Supreme Court of New New York York Supreme Court State Steuben of of Steuben County County S. SMITH and S. and ERIN ERIN SMITH N. SMITH, KARL N. KARL SMITH, Plaintiffs, Plaintiffs, DECISION DECISION vs. vs. Index CV No. 2015-1280 Index No. 2015-1280 CV AMERIPRISE & HOME HOME AMERIPRISE AUTO & AUTO INSURANCE INSURANCE AGENCY, INC AGENCY, INC., ., Defendant Defendant Appearances: Appearances: Donlon & Czarp/es, (Michael of Welch, Donlon & Corning (Michael Donlon, of Welch, Czarples, Donlon, Corning for Plaintiffs counsel) for Plaintiffs counsel) (William Buffalo of counsel) for Hage/in Spencer, LLC, Buffalo (William Swift, of for Hagelin Spencer, LLC, Swift, counsel) Defendant Defendant defendant's on defendant's motion for summary This matter comes before the court on motion for This matter comes before the court summary for dismissal of plaintiffs on judgment for dismissal of complaint on the grounds that plaintiff did not plaintiff's complaint the grounds that plaintiff did not judgment sustain within the of Insurance a serious Insurance Section 5102 (d). . sustain a serious injury within the meaning of Law Section 5102 (d) Law injury meaning also contends that the cause of action of action seeking damages for loss of Defendant damages for loss of Defendant also contends that the cause seeking consortium must be dismissed because is consortium must be dismissed because itit is a derivative claim which is not a derivative claim which is not recoverable in a a supplemental supplemental recoverable in underinsurance motorist coverage (SUM) claim. underinsurance motorist coverage claim. (SUM) Plaintiff opposes defendant's motion and moves for Plaintiff opposes defendant's motion and moves for summary judgment claiming judgment summary claiming that she is entitled entitled to a a finding of serious on 90/180-day claim as that she is to of injury serious on her her claim as a a matter matter finding injury 90/180-day of law, as well well as on on the the issues of negligence, as issues of plaintiffs economic loss in of of as plaintiffs law, economic loss in excess excess of negligence, DECISION \H\\ffl I\ IIMll11111 Clerk Hunter. County Judith M County Clerk M. Hunter. [* 1] 1 of 9 2015-1280CV 2015-1280CV 12126/2017 10·.30 AM Cieri<: P6 INDEX NO. E2015-1280CV FILED: STEUBEN COUNTY CLERK 12/26/2017 10:30 AM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 04/13/2021 basic economic loss, plaintiff's timely notice of claim and defendant's failure to of and basic economic plaintiff's notice claim defendant's failure to loss, timely disclaim disclaim coverage, and exhaustion of tortfeasor's policy. and exhaustion of the the policy. tortfeasor's coverage, The derivative claim is at outset as plaintiff conceded at The derivative claim is dismissed dismissed at the the outset as plaintiff conceded at oral oral claim on which she bases her claim does not cover aa argument that the SUM that the SUM policy on which she bases her does not cover policy argument claim for loss of consortium derivative claim for of . Therefore, defendant's motion to the derivative loss consortium. defendant's motion to dismiss dismiss the Therefore, derivative granted. derivative claim is claim is granted. A party forth judgment must set A seeking summary judgment must set forth sufficient evidence to sufficient evidence to seeking summary party of any material of fact the (Alvarez v. Prospect emonstrate the absence of material issue of (Alvarez v. Prospect Hospital, absence issue fact Hospital, any demonstrate NY2d If the the proponent fails to make 8 NY2d 320, 324 ). If proponent fails to this showing, the motion for 324). this make the motion for 320, showing, 68 must be denied regardless of the the of the be denied regardless of adequacy of opposing ummary judgment judgment must the summary adequacy opposing New York York Univ. Med. 64 NY2d v. Univ. Med. Ctr., 64 851, 853; v. papers (Winegrad (Winegrad v. New NY2d 853 Stokes v. Brown, Ctr., 851, ; Stokes Brown, papers [4* th Dept. 2003]). once this AD3d 1373, 1374 [4 Dept. 2003]). However, once this showing has been made, 1374 has been 1373, However, made, showing 2 AD3d of the he burden then shifts to opponent of motion to forward with evidence burden then shifts to the opponent the motion to come come forward with the evidence the establish the of material n admissible form to the existence of issues of which require admissible form to establish existence material issues which of fact fact require in trial (Gonzalez v. 98 trial (Gonzalez v. Mag Leasing Corporation, 95 NY2d 124, 129; Alvarez v. 95 NY2d 98 129 ; Alvarez v. Corporation, 124, Leasing Mag a 68 NY2d rospect Hospital, 68 320,324). In a for judgment, 324). In reviewing a motion NY2d motion for summary 320, Hospital, reviewing judgment, summary Prospect evidence must be he evidence must be considered in light most favorable to the opponent considered in the the light most to favorable the opponent the v. Baker, AD2d 301 Ruzycki v. 301 AD2d 48, 50 Dept. 2002]). 50 [4th [4th Dept. 2002]). 48, Baker, (Ruzycki To satisfy the serious threshold set forth forth in Law 5102 To the serious injury threshold set in Insurance Law Section Section Insurance 5102 satisfy injury there must be objective proof of injury objective v. Avis d), there must be proof of (Toure v. Avis Rent A Car Inc., A Rent Car Systems, injury ( Toure Systems, Inc., (d), NY2d 350 [2002]). Subjective 8 NY2d 345, 350 [20021). Subjective complaints alone are insufficient (Gaddy v. complaints alone are 345, insufficient v. ( Gaddy 98 22 [* 2] 2 of 9 INDEX NO. E2015-1280CV FILED: STEUBEN COUNTY CLERK 12/26/2017 10:30 AM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 04/13/2021 v. EJJiott, NY2d Eyler, 79 955, 957-958 [1992); Licari Licari v. 57 NY2d 230 , 239 239 [1982]). The 79 NY2d 57 NY2d [1982]). 957-958 The Elliott, 955, 230, [1992); Eyler, extent of physical be established either or of physical limitation can be established by either an an or degree degree limitation can extent presenting, by presenting, has or of loss of use, or an an expert's opinion that plaintiff has suffered a percentage opinion that plaintiff specific percentage expert's suffered a specific of loss of use, expert's qualitative assessment of condition based on objective objective medical medical expert's assessment qualitative of plaintiffs plaintiff's based on condition evidence that compares plaintiffs limitations to the the normal purpose, function, and and evidence that compares limitations to normal plaintiff's purpose, function, use of affected body organ, member, or system system (Toure v. Avis Avis Rent Rent AA Car or (Toure use of the the affected v. Car member, organ, body [4thth Systems, Inc., Id. Parkhill v. 305 AD2d AD2d 1088, 1089 [4 Dept. 2003]). at 350; Parkhill v. Cleary, 305 Dept. 2003]). Id. at 1089 350; Cleary, Systems, Inc., 1088, To serious injury under the 90/180 90/180 category, category, plaintiff must show objective objective plaintiff show To prove under the prove serious must injury a medically or impairment of of determined injury or impairment of aa non-permanent nature, evidence of a determined non-permanent evidence nature, injury medically together with evidence that plaintiff's activities were were curtailed curtailed toto together plaintiff's with evidence that activities not a great extent, extent, not a great Id. v. Ramadhan, (Gaddy v. Id. at 957; 957; Zeigler Zeigler v. Ramadhan, 55 just some slight curtailment some v. Eyler, at curtailment slight Eyler, (Gaddy just [4thth 2004]). Dept. Dept. 2004]). AD3d 1080 [4 AD3d 1080 Plaintiff of the Plaintiff claims that, as claims as a a result result of the auto auto accident, accident, she she suffered suffered aa permanent permanent that, consequential of a consequential limitation limitation of use use organ of of organ or or member, significant limitation of limitation of a body significant member, body use and of a a body function or system, a non-permanent use of function or system, and a non-permanent medically determined injury determined body medically injury or impairment impairment that her her usual daily activities activities for for 90 90 or that prevented her from performing prevented from her usual performing daily of the days the 180 days the days of 180 days following the injury. Defendant asserts that that there there is objective injury. Defendant asserts no objective is no following evidence to support support claim of plaintiff's plaintiffs claim of serious serious injury under any ofof the the categories categories evidence to under injury any alleged plaintiff. alleged by by plaintiff. Defendant upon relies plaintiff's Defendant relies upon plaintiffs medical records, plaintiffs deposition medical plaintiff's deposition records, and the an independent results of an independent of medical examination (lME) conducted testimony, and the results medical examination testimony, conducted (IME) 3 3 [* 3] 3 of 9 FILED: STEUBEN COUNTY CLERK 12/26/2017 10:30 AM NYSCEF DOC. NO. 29 INDEX NO. E2015-1280CV RECEIVED NYSCEF: 04/13/2021 Dr. opined by Dr. more than three years after after the the accident. accident. Dr. Huntoon opined that that years Huntoon Dr. Huntoon, more than three Huntoon, by of vehicle plaintiff suffered a temporary cervical sprain sprain as as aa result of the the motor vehicle cervical result motor plaintiff suffered a mi\d, mild, temporary has cervical accident and that she has no injuries to her neck, cervical oror thoracic thoracic spine spine and and she no other other injuries to her accident and that neck, preupper back related to accident. He found that that plaintiffs herniated disc was was aa prethe He found plaintiff's herniated disc upper back to the accident. related was insignificant with no objective objective existing degenerative condition that was clinically clinically insignificant with no degenerative condition that existing her spinal caused evidence that itit caused her any limitations. He also concluded concluded that that her spinal her also evidence that limitations. He any plaintiff has as did subluxation pre-dated the accident, as did her headaches, finding that that plaintiff has the her pre-dated headaches, accident, finding subluxation also Huntoon of headaches. Dr. a and well-documented history of preaccident headaches. Dr. Huntoon also a long well-documented preaccident and history long medical accident plaintiff's opined that the accident did not exacerbate any ofof plaintiff's existing medical opined did not exacerbate that the any existing substantial. her complaints and that her limitations were not substantial. that were complaints and limitations not He also He also claimed claimed that that is one-and-a-half in treatment. plaintiff had a year unexplained gap in treatment. This This evidence evidence is unexplained plaintiff had year a one-and-a-half gap burden initial prima facie of sufficient to defendant's initial burden of establishing establishing aa prima facie case case that that sufficient to meet meet defendant's not not did meet serious threshold and were were not plaintiffs injuries did not meet the statutory serious injury threshold and plaintiff's injuries the injury statutory accident. caused the caused by accident. by the proof of proof proof The burden then shifts plaintiff to The burden of then shifts toto plaintiff to come come forward forward with with sufficient sufficient proof of fact to raise raise issues fact the to triable issues of concerning the nature, extent, cause cause and and permanency triable extent, nature, concerning permanency of her her 98 Mag ld. at alleged injuries (Gonzalez v. 98 Alvarez of alleged injuries (Gonzalez v. Corporation, Id. at 129; Alvarez Corporation, 129; Mag Leasing Leasing v. Prospect Prospect Id. at 324). v. Hospital, Id. at 324). Hospital, in opposition plaintiff In opposition toto defendant's motion, plaintiff defendant's motion, her submitted own as well well as the Dr. submitted her own affidavit, as as the sworn sworn affidavit affidavit ofof Dr. Cilip, her treating her affidavit, Cilip, treating and Dr. her chiropractor. Dr. began plaintiff for physician; and Dr. Frankie, her chiropractor. Dr. Cilip began treating plaintiff for physician; Frankie, Cilip treating varicose veins in December, month varicose veins in 2012, approximately one month before the accident. accident. one before the December, 2012, approximately 4 4 [* 4] 4 of 9 FILED: STEUBEN COUNTY CLERK 12/26/2017 10:30 AM NYSCEF DOC. NO. 29 INDEX NO. E2015-1280CV RECEIVED NYSCEF: 04/13/2021 range headache full tt that time, plaintiff did not report any neck, back or headache pain, had full range back or had plaintiff did not report that neck, pain, time, any of motion in spine, and and did did not exhibit neck neck oror other other involuntary involuntary spasms. spasms. After After exhibit motion her not in her spine, of for He plaintiff neck. pain the motor vehicle accident, Dr. began treating plaintiff for pain in neck. He began in her her Dr. Cilip the motor vehicle accident, Cilip treating he spasms in plaintiffs and stated that he severe and involuntary spasms in neck, and he plaintiff's observed severe and that he observed neck, involuntary stated her experience spasms as also able to plaintiff to experience involuntary spasms by her to cause cause plaintiff to was also able palpitating by palpitating involuntary caused neck. He that these spasms caused aa straightening straightening ofof the the spine, spine, which which was was neck. He opined that these opined spasms after bserved in taken shortly after the accident. accident. Dr. Cilip stated stated that that this this finding finding taken the Dr. Cilip in an an x-ray x-ray shortly observed spasms. as consistent with plaintiff's spasms. with was consistent plaintiff's spasms He stated He stated that that involuntary spasms are are involuntary of and be feigned of injury muscles neck bjective evidence of to muscles of the the neck and cannot cannot be feigned oror evidence to the the injury objective motor injuries plaintiff suffered related aked . Further, he that the injuries plaintiff suffered were were related to the the motor stated that the to he stated Further, faked. prior accident. not have have these to ehicle accident because plaintiff did these symptoms symptoms prior to the the accident. ehicle because plaintiff did not accident plaintiff's pain at this this almost five He stated that, at time, almost five years years after after the the accident, accident, plaintiff's pain He also also stated that, time, elevated" if she not continue nd physical physical limitations would be "significantly nd limitations would be elevated" if she did did not continue with with "significantly plaintiff's long-term diagnosis ligaments care. He stated stated that alliative care. He that plaintiff's long-term diagnosis was was sprain sprain ofof ligaments palliative cervical chronic pain the and nd cervical spine, cervicalgia, and chronic pain syndrome, all all caused caused by the spine, cervicalgia, syndrome, by þnd all permanent. permanent. ccident and and all pccident Plaintiff presented sworn also the affidavit Dr. Frankie, her chiropractor, Plaintiff also presented the sworn affidavit ofof Dr. her chiropractor, who who Frankie, "sporadically" been plaintiff ad been treating plaintiff "sporadically" from from April, April, 2006, 2006, toto April, April, 2012. 2012. He stated He stated treating had after the accident on plaintiff's hat after the accident on January 16, 2013, plaintiffs treatments have been treatments have been 16, 2013, January that consistent." and Dr. Frankie ordered MRI 'frequent, steady and consistent." Dr. Frankie ordered an an MRI two days days after after the the two frequent, steady which revealed a straightening of the cervical of the cervical lordosis and aa 3mm 3mm central central ccident, which revealed a lordosis and straightening accident, 5 5 [* 5] 5 of 9 FILED: STEUBEN COUNTY CLERK 12/26/2017 10:30 AM NYSCEF DOC. NO. 29 INDEX NO. E2015-1280CV RECEIVED NYSCEF: 04/13/2021 5-6." explained that disc herniation at 5-6." He that "straightening of lordosis is of cervical cervical lordosis is disc herniation at "C "C He explained "straightening cervical when the normal curvature of cervical spine straightens due to of the the spine straightens due to involuntary when the normal curvature involuntary neck." muscle spasms in patient's neck." He that this is indication He stated stated that is an an objective objective indication muscle spasms in the the patient's this caused of important and significant injury caused by the motor vehicle accident. He motor accident. He of an an important and significant the vehicle by injury her from further stated that plaintiff suffers from involuntary muscle spasms involving her further stated plaintiff suffers muscle spasms that involuntary involving more upper back which consistent and severe than those he cervical spine and upper back which are more consistent and severe than those he are cervical spine and detected pre-accident. He also also trigger points in plaintiff's plaintiff's spinal area which observed pre-accident. He detected trigger points in spinal area which observed in suffered he attributed to injuries plaintiff suffered in the MVA. he attributed to injuries plaintiff the MVA. He states that plaintiff He states that plaintiff range-of-motion after MVA and objectively measured moderate to severe range-of-motion deficits after the measured moderate to severe deficits the MVA and objectively consistently tested positive on Soto-Hall test, an objective orthopedic test that tested positive on the the Soto-Hall an objective orthopedic test that test, consistently radicular pain. Dr. opined measures radicular pain. Dr. Frankie opined that the symptoms he observed measures Frankie that the symptoms he has has observed ages." are persistent and permanent and "will worsen plaintiff are persistent and permanent and "will probably worsen as plaintiff ages." This as This probably question of fact on evidence is to raise a of on whether plaintiff suffered a evidence is sufficient sufficient to raise a question fact whether plaintiff suffered a permanent consequential limitation or limitation of permanent consequential limitation or a a significant significant limitation of use. use. Defendant also moved for judgment on as Defendant also moved for summary judgment on plaintiff's claim that, plaintiff's claim as a a that, summary result of the the she a non-permanent non-permanent result of accident, she sustained a medically determined injury sustained determined accident, medically injury or impairment impairment which prevented her from or which prevented her from performing substantially all material all of of the the material performing substantially acts which her usual constitute and acts which constitute her usual and customary daily activities for not less than 90 activities for not less than 90 customary daily days the 180 days days during the 180 days immediately following the accident. Plaintiff cross moved the accident. Plaintiff cross moved during immediately following for summary on this claim . for judgment on judgment this claim. summary 6 6 [* 6] 6 of 9 FILED: STEUBEN COUNTY CLERK 12/26/2017 10:30 AM NYSCEF DOC. NO. 29 INDEX NO. E2015-1280CV RECEIVED NYSCEF: 04/13/2021 Defendant's expert, Dr. opined that plaintiff did not suffer aa qualifying Dr. Huntoon, opined that plaintiff did not suffer Defendant's Huntoon, expert, qualifying injury and that, at she a cervical sprain and had no she suffered suffered a mild and no and cervical sprain at most, had that, most, mild, , temporary temporary injury her cervical or thoracic back. other injuries to neck, cervical or spine and upper back. He other spine injuries to her thoracic and upper He attributed attributed neck, plaintiff's ongoing complaints complaints ofof pain to a degenerative degenerative disc disc condition condition that he pain to a that he found found plaintiff's ongoing to be clinically insignificant, headaches and spinal subluxation all of he subluxation all headaches and spinal of which which he to be insignificant, clinically accident. that there claimed pre-dated the accident. He that there was no evidence that pre-dated the He stated was no objective objective evidence that claimed stated half the motor vehicle accident accident caused caused plaintiff any limitations beyond two and and one one half motor plaintiff limitations beyond two vehicle any the months after the accident. This satisfied defendant's initial burden for summary after This initial burden months accident. satisfied defendant's for the summary [4thth 1766 judgment (Wilson v. 101 AD3d 1765, 1766 [4 Dept. 2012]). (Wilson v. Colosimo, 101 Dept. 2012]). AD3d Colosimo, 1765, judgment In plaintiff testified that that she she missed two toto three three weeks weeks ofof work work testified missed two In response, plaintiff response, immediately after the accident and only returned to work intermittently because, even even accident and returned towork after the because, immediately only intermittently though she had to work work through tax she testified though she was in she had to through tax season. Further, she testified she was in pain, season. Further, pain, walk that she she can can no longer walk her dogs together together because she cannot cannot hold both longer her dogs hold both no because she that at the the same she bed in the the leashes at same time; she has trouble getting out of in morning because leashes has trouble out because of bed time; getting morning of the the has longer of drugs she has to she can no go gym to out; and her drugs she to take; she can the gym to work her no longer go to to the work and take; out; with children have to help help her with the the laundry and cooking. cooking. and have to her laundry children Although defendant's defendant's Although that medical expert concluded that plaintiffs injuries were either pre-existing or medical expert plaintiff's injuries were concluded either or clinically pre-existing clinically experts not plaintiff's agree. insignificant, plaintiff's experts do not agree. Plaintiffs affidavit together with the do Plaintiff's affidavit together with the insignificant, medical she objective of objective medical evidence she presented as forth above, raises a evidence presented set of as set forth raises a question question above, fact as a a result result of the the she fact whether, as of accident, she sustained a medically a non-permanent sustained whether, non-permanent accident, medically or impairment determined impairment which determined injury or which prevented her from performing substantially prevented her from injury performing substantially 77 [* 7] 7 of 9 FILED: STEUBEN COUNTY CLERK 12/26/2017 10:30 AM NYSCEF DOC. NO. 29 INDEX NO. E2015-1280CV RECEIVED NYSCEF: 04/13/2021 usual and for all material acts which constitute her usual and customary daily activities for her all of of the the material acts which activities constitute customary daily not less than 90 during the 180 days immediately following the accident (Perl the the accident (Perl 180 days not less than 90 days days immediately following during [4thth v. Meher, Meher, Id. at 218-219; 218-219; Lake Lake v. Ins. Co. Co. ofof Am., Am., 147 AD3d 1407, 1408 [4 Id. at v. Safeco 147 AD3d 1408 Safeco Ins. 1407, v. Dept. 2017]). Therefore, Therefore, defendant's defendant's motion for summary summary judgment judgment dismissing dismissing the the for Dept. 2017]). motion suffer complaint on the basis that plaintiff did not suffer a injury is and complaint on the basis that plaintiff a serious serious is denied denied and did not injury motion for her claim of serious serious under the her claim of injury under the plaintiff's motion for summary judgment on plaintiff's judgment on summary injury 90/180 claim is also also denied. 90/180 claim is denied. of loss Plaintiff has also moved for judgment on issue Plaintiff has also moved for summary judgment on the the issue of economic economic loss summary the loss she sustained as of the the accident is in in excess of basic of accident is of because the loss she sustained as a a result result excess because basic "No-Fault" Although economic loss allowed under "No-Fault" insurance. Although a for economic loss allowed under insurance. a claim claim for economic economic plaintiff to have sustained a serious serious still loss does not require the plaintiff to sustained a injury, she still must does not require the have she must injury, I loss in admissible form her claim in form to her claim (Wilson v. Id. produce evidence produce evidence admissible to support support (Wilson v. Colosimo, ld. Colosimo, at 1767). In this plaintiff's medical bills were uncertified and in at 1767). In this case, plaintiff's medical bills were uncertified and so not in so not case, form admissible form (( See v. County Agric. Socy., 273 AD2d 635, 637 See Ordway v. Columbia Columbia Agric. 273 AD2d 637 admissible Socy., 635, Ordway County [3d rd Dept. 2000]). [3 Dept. 2000]). Additionally, there is a question of fact on the question of question of on the there is a fact question of Additionally, causation. Although causation. Although plaintiff's motion for judgment on claim is plaintiff's judgment on this this motion for summary claim is denied, denied, summary her right to present proof present at trial trial of her economic her right to proof at of economic loss is (Cicco v. Durolek, her loss is preserved preserved (Ciccov. Durolek, [4thth 147 [4 Dept. 2017]). 147 AD3d 14867, 1488 AD3d 1488 14867, Plaintiff also for moved Plaintiff also moved for summary judgment on her claim that the tortfeasor judgment on her claim that the tortfeasor summary who rear-ended plaintiff's negligent as a matter of law. law. of Defendant who rear-ended plaintiff's vehicle, was negligent as a was matter Defendant vehicle, opposes plaintiff's motion and that the matter is on opposes plaintiff's motion and contends that the matter before the Court contends before the Court is based based on 88 [* 8] 8 of 9 FILED: STEUBEN COUNTY CLERK 12/26/2017 10:30 AM NYSCEF DOC. NO. 29 INDEX NO. E2015-1280CV RECEIVED NYSCEF: 04/13/2021 policy. plaintiffs claim that that defendant defendant breached the terms terms and and condition condition ofof the the SUM SUM policy. the plaintiff's claim breached and negligence issue in Therefore, this is action, not a claim and is at in tort claim not is a contract not a tort neg!!gence is not at issue a contract this action, Therefore, of a finding this case. case. Plaintiffs for summary summary judgment judgment is because a finding of motion is denied denied because Plaintiff for s motion this insurance negligence is at in insurance policy contract action seeking SUM issue this action SUM not at issue in this contract negligence is not policy seeking insurance coverage. insurance coverage. of Plaintiffs motion for judgment on on the issues of timely notice of claim for summary judgment Plaintiff's motion the notice of claim issues summary timely of denied because have and exhaustion of underlying policy limits is denied because these issues have and also issues exhaustion limits is also these policy underlying been in plaintiffs in this set plaintiff's not been raised in this action. action. The were not set forth forth in complaint, raised The issues issues were not not complaint, were nor they raised in answer as defense and, therefore, nor were as an raised in defendant's defendant's answer an affirmative defense affirmative therefore, and, they are they are not at in this case. in this case. not at issue issue they order. Defendant's Defendant's attorney to submit order. submit to attorney f -~ -v- //'11 ,;.r-.1'1 Dated: •.lJ.u ka . ude Dated: ENTER: ENTER: Furf Hon. Marlanne Furfre Hon. Marianne e Acting Supreme Court Justice Supreme Court Justice Acting 99 [* 9] 9 of 9

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