Defendants, Colgan Air, Inc. (hereinafter "Colgan") and Pinnacle Airlines Corp. (hereinafter "Pinnacle") have moved this Court for an order directing that plaintiffs' claims be subject to a federal standard of care. Colgan and Pinnacle take the position that the Federal Aviation Act of 1958 ("FAACT") and Federal Aviation Regulations ("FARS") promulgated thereto, preempt all state law negligence standards of care. On the other hand, plaintiffs argue that New York State's negligence standard of care should govern these cases. They say that if federal law preempts an ordinary negligence standard of care, their clients' claims of negligent training, hiring and retention would be effectively barred.

Plaintiffs' decedents were among fifty individuals who were tragically killed when Continental Connection Flight 3407 crashed in Clarence Center, New York. Plaintiffs' claims venture far beyond alleging that the pilot of the airplane, Captain Marvin Renslow, was negligent in his operation of the aircraft. Plaintiffs say that Colgan and Pinnacle were directly negligent in hiring, training and retaining Renslow, who they claim, had a history of failed flight tests and exhibited other unsafe tendencies as a pilot.

By applying the doctrine of implied preemption, plaintiffs say the Court will restrict plaintiffs to examining whether Renslow took and passed various flight tests, thereby satisfying certain discreet federal regulations. Escaping scrutiny would be the subjective conduct of Colgan and Pinnacle, to wit: allegedly ignoring the professional shortcomings of Renslow and thereafter negligently hiring and retaining him as a pilot - conduct which, they say, is not the subject of the FAACT or any of it's associated regulations.

The defendants counter that the law is clear. The FAACT and FARS impliedly preempt all state standards of care. In order to prevail, the plaintiffs, whose state remedies are expressly preserved under the FAACT, must still prove that defendants violated a federal standard of care as established by the FAACT and FARS. 

The genesis of Congress' power to preempt state law lies in the United States Constitution which provides that the laws of the United States "shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." U.S. Const., Art. VI, cl. 2.

Federal preemption may be express or implied. Express preemption is not claimed in this case, but implied preemption is. Preemption of a state law may be implied "if that law actually conflicts with federal law", see Pacific Gas & Elec. Co. v State Energy Resources Conservation and Dev. Comm'n, 461 US 190, 204, 75 L.Ed. 2nd 752, 103 S.Ct. 1713 [1983], or if federal law so thoroughly occupies a legislative field "as to make reasonable the inference that Congress left no room for the States to supplement it." Fidelity Fed. Sav. & Loan Assn. v Dela Cuesta, 458 US 141, 153, 73 L.Ed, 2nd 664, 103 S.Ct. 3014 [1982] (quoting Rice v Santa Fe Elevator Corp., 331 US at 230); Cipollone v Liggett Group, Inc., 505 US 504, 516, 120 L.Ed. 2nd 407, 112 S.Ct. 2608 [1992]. (Internal quotations omitted).

Any analysis of preemption issues must begin by acknowledging that there exists "a rebuttable presumption against the preemption of the states' exercise of their historic police power to regulate safety matters." Goodspeed Airport, LLC. v East Haddam Inland Wetlands & Watercourses Comm'n, 634 F 3rd 206 [2nd Cir. 2011]. Thus, the question before this Court is whether defendants have overcome that presumption by showing that Congress intended "to occupy the entire field of air safety, thereby preempting state regulation of that field." Goodspeed, id at 208.

Defendants point to a litany of Federal cases to support their claim of field preemption. See Goodspeed, id; US Airways, Inc. v O'Donnell, 627 F 3rd 1318 [10th Cir. 2010]; Montalvo v Spirit Airlines, 508 F 3rd 464 [9th Cir. 2007]; Greene v Goodrich Avianics Sys., Inc., 409 F 3rd 784 [6th Cir. 2005]; Abdullah v American Airlines, Inc., 181 F 3rd 363 [3rd Cir. 1999]; French v PanAm Express, Inc., 869 F 2nd 1 [1st Cir. 1989]. Moreover, defendants point to the decision of Judge Skretny in the parallel actions involving Flight 3407, which are pending in the District Court, Western District of New York. There, the Court found in favor of Federal preemption of state standards of care, while preserving plaintiffs' state remedies under New York law. In Re: Air Crash Near Clarence Ctr., 798 F.Supp. 2nd 481 [W.D.NY 2011].

All of these decisions are founded on the premise that the FAACT and FARS "thoroughly occupy" the field of aviation safety by establishing "complete and thorough safety standards for interstate and international air transportation that are not subject to supplementation by, or variation among, jurisdictions." See Abdullah, supra at 367.

However, the decisions submitted by the defendants do not create an absolute case for Federal implied preemption. InGoodspeed, supra, the Second Circuit found a "Congressional intent to preempt," yet found that the requirements of a Connecticut wetlands permitting statute did not create a sufficient interference with federal regulation, so as to fall within the scope of the field of aviation regulation. Goodspeed, supra at 211. Here, defendants stress that not only would the application of state standards of care interfere with the federal statutory scheme but could also lead to air carriers having to comply with dozens of different standards of care.

In Abdullah, the Third Circuit found that "the entire field of aviation safety is federally preempted", supra at 375, and held that "state and territorial standards of care in aviation safety are federally preempted". supra at 376. Eleven years later, the Third Circuit retreated somewhat from its holding in Abdullah when it decided Elassaad v Independence Air, Inc., 613 F 3rd 119 [3rd Cir. 2010]. The plaintiff in Elassaad fell from a staircase while exiting the defendant's airplane after it landed. The Court pointed out that inAbdullah it found that the preemptive field was "air safety". Abdullah, supra at 376. In Elassaad it clarified that "air safety" meant "safety while a plane is in the air flying between the origin and destination." Elassaad, supra at 127. Thus, the Court found that "supervision of the disembarkation process by a flight crew [fell] outside the bounds of what [the Court was] considering inAbdullah." Elassaad supra at 127.

There can be no question that the allegations in the plaintiffs' complaints, as amplified by their bills of particulars, fall squarely within the broad field of air safety. Whether it be Captain Renslow's direct negligence in operating the aircraft or Colgan's and Pinnacle's negligence in training, hiring and retaining Renslow, the conduct alleged is claimed by plaintiffs to be a substantial factor in causing the crash of Flight 3407.

Plaintiffs' push to have the court apply a state standard of care begins with a point of law with which defendants do not disagree. Namely, that the FAACT contains a savings clause which preserves state remedies. The savings clause provides: "[a] remedy under this part is in addition to any other remedies provided by law." 49 USC §40120(c). Plaintiffs first contend that the savings clause preserves not only state remedies but also common law duties of care.  There is no question that state remedies are preserved. See Abdullah, supra at 375, Cleveland v Piper Aircraft Corp., 985 F 2nd 1438, 1442-1443 [10th Cir. 1993]. However, plaintiffs point to no case which holds that state standards of care are encompassed by the savings clause.

Plaintiffs also contend that there is nothing in the language of the FAACT or FARS or in the legislative history that is indicative of any Congressional intent to displace common law reasonable care standards. After all, they argue, "the FAACT empowers the FAA to prescribe minimum safety standards' for commercial airline operators, 49 USC §44701(b)(1) and to further the FAACT's general purpose of promoting the duty of an air carrier to provide service with the highest possible degree of safety in the public interest.' 49 USC §44701(d)(1)(A)." See Plaintiffs' Memo of Law, pg. 15. They further point out that the use of the phrase "minimum safety standards" is indicative of the intent of Congress to create "only a floor" leaving "adequate room for state tort law to operate."Grier v Am. Honda Motor Co., 529 US 861 at 868, 120 S.Ct. 1913, 146 L.Ed. 914 [2000]. And they contend that that intent includes preservation of state common law standards of care.

Thirdly, plaintiffs have encouraged this court to take a close look at the action and inaction of Congress in dealing with preemption issues since the passage of the FAACT. However, none of the legislation or proposed legislation cited by plaintiffs convince this court that Congressional intent, apparent within the provisions or history of those laws or proposed laws, may be transmuted to the FAACT. The failure of Congress to restrict state law standards of care is equally unavailing.

Lastly, plaintiffs ask this court to apply state standards of care because, at least with respect to their claims of negligent hiring, training and retention, state standards do not conflict or interfere with federal law. The standard of care in New York State is measured against the conduct of a reasonably prudent person under the same or similar circumstances. See P.J.I. 2:10. Mirroring that standard is the general Federal standard of care established by 14 C.F.R. §91.13 which provides as follows: 

"No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another." 

14 C.F.R. §91.13(a).

However, as pointed out by defendants, federal law provides specific guidelines for matters affecting air safety. Included are measures governing pilot training, certification and hiring. For example, see §44703 (requirements for airman certificates); 14 C.F.R. §60 et.seq. (requirements for flight simulator training devices, qualification and use; 14 C.F.R. §61 et.seq., (pilot certification); 14 C.F.R. §91 et.seq., (pilot operations); 14 C.F.R. §121 et.seq., (domestic carrier operations); 14 C.F.R. §141 et.seq., (pilot schools) and 14 C.F.R. §142 et.seq., (aviation training centers).

With respect to pilot training, certification and hiring, the regulations appear to be exhaustive. See French v PanAm Express, Inc., supra at 8-9. These regulations pertain to every aspect of flight training, simulator training, testing, pilot qualifications and standards for hiring pilots. As to the latter, Colgan was under a statutory responsibility not to "use an airman . . . unless that person - -

(1) [h]olds an appropriate current airman certificate issued by the FAA;

(2) [h]as any required appropriate current airman and medical certificates in his possession . . .;

(3) [i]s otherwise qualified for the operation for which he is to be used."14 C.F.R. 383 (a).

Other regulations cover areas such as "recent experience", 14 C.F.R. 121.439; "line checks", 14 C.F.R. 121.440 and "proficiency checks", 14 C.F.R. 121.441. Training is extensively covered in Subpart N of Title 14. Qualifications of check airmen and flight instructors are similarly exhaustive. See 14 C.F.R., 121.411-414.

Thus, as found by the Court in French, "the intricate web of statutory provisions affords no room for the imposition of state law criteria vis-a-vis pilot suitability."  This conclusion holds notwithstanding that state standards of care may not conflict or interfere with federal law. As stated in French, "so long as occupation of an envisioned field was intended any state law falling within the field is pre-empted'" French, supra at 17-18 (quoting Silkwood v Kerr-McGee Corp., 464 U.S. 238, 248, 78 L.Ed. 2d 443, 104 S.Ct. 615 [1984]).

Admittedly, the application of the doctrine of implied preemption to thwart state standards of care may sometimes affect the ultimate outcome of a case, possibly resulting in dismissal of a claim.

In Montalvo, the Ninth Circuit Court of Appeals adopted the reasoning in Abdullah, and held that "federal law generally establishes the applicable standards of care in the field of aviation safety." Montalvo, supra at 468. One of the state common law claims presented in Montalvo was the airline's failure to warn passengers of the risks of deep vein thrombosis. The Court upheld the dismissal of that claim on the basis that there existed "no federal regulations requiring the airlines to warn about the risks of DVT . . ."Montalvo, supra at 468. Pointing to extensive federal regulations (the FARS) requiring warnings to be given on airline flights (i.e. no smoking, use of seat belts, oral briefing, upright seat backs and the like) the Ninth Circuit found that, at least in the field of in-flight warnings, "the Administrator has exercised his authority to regulate aviation safety to the exclusion of the states." Montalvo, supra at 473.

Such was also the case in Witty v Delta Airlines, Inc., 366 F 3rd 380 [5th Cir. 2004]. While the Witty court refused to adopt the broad preemption rule, it still dismissed the plaintiff's failure to warn claim on more narrowly drawn field preemption grounds. See also Greene, supra. Thus, in Montalvo, Witty and Greene, plaintiffs were thwarted in their pursuit of a remedy which, under different circumstances, would have been available to them under state common law.

That this Court has engaged in a discussion about Montalvo, Witty and Greene should not be taken by defendants as any indication of its opinion concerning the viability of plaintiffs' claims against Colgan and Pinnacle. That issue, if raised by the defendants, is reserved for another day. These cases simply demonstrate that the doctrine of implied field preemption, applied so as to negate state standards of care in the field of air safety, may prevail despite the possibility of adverse consequences to a plaintiff's claim.

In conclusion, this court agrees with the analysis in French and finds that the pervasiveness and completeness of the federal regulatory scheme leaves no room for state standards of care. Defendants have, in this court's opinion, overcome the presumption against preemption and their motion is, in all respects, granted.

Upon the foregoing papers, it is ordered that plaintiff's motion for a "preliminary injunction" is denied. 

In this Labor Law action, plaintiff was allegedly injured during construction at the site of the former World Trade Center. Plaintiff commenced this action against the New York City Transit Authority (NYCTA), the Metropolitan Transportation Authority (MTA), the City of New York (City), the Port Authority of New York and New Jersey (Port Authority), Phoenix Constructors, JV (Phoenix), KTI Phoenix (KTI), and Phoenix Nicholson/E.E. Cruz, LLC (Phoenix Nicholson). All defendants are represented by the same attorney.

Plaintiff subpoenaed non-party Skanska Mechanical Structural Inc. (Skanska) to appear for a non-party deposition. Plaintiff's counsel claims that counsel for defendants contacted plaintiff's counsel to inform him that defendants' counsel was representing Skanska, and that plaintiff's counsel was prohibited from conversing with the Skanska witness to be deposed. Plaintiff now moves for a preliminary injunction enjoining defendants' attorney from representing an employee of non-party Skanska and from instructing/directing that witness not to answer any questions to be posed at Skanska's non-party deposition.  

As a threshold matter, plaintiff's motion for a "preliminary injunction" is not, in fact, in the nature of a provisional remedy, but rather pertains to discovery, including informal discovery. To that extent, plaintiff's motion is more in the nature of a protective order and to disqualify defendants' counsel as counsel to Skanksa.

One would hazard to guess that the impetus of plaintiff's motion is Thompson v Mather (70 AD3d 1436 [4th Dept 2010]), which plaintiff cites. In Thompson, the Appellate Division, Fourth Department held:

"We agree with plaintiff that counsel for a nonparty witness does not have a right to object during or otherwise to participate in a pre-trial deposition. CPLR 3113 (c) provides that the examination and cross-examination of deposition witnesses shall proceed as permitted in the trial of actions in open court.'"

As one commentator put it, Thompson "sparked a lively debate among practitioners and commentators." (David Paul Horowitz, You May Say Something, 83 NY St BJ 16 [Sep 2011]; David Paul Horowitz, Just Sit There and Be Quiet, 83 NY St BJ 15 [June 2011]; David Paul Horowitz, May I Please Say Something?, 83 NY St BJ 82 [July/Aug 2011]; see also Patrick M. Connors, 2010 Supp Practice Commentary, McKinney's Cons Laws of NY, Book 7B, CPLR 3113, 2011 Supp Pamph at 29; 232 Siegel's Practice Review, 4th Dep't Says Counsel for Nonparty Witness Has No Right to Object during Deposition, at 4 ["A guest with so cordial an invitation should get a more gracious reception than the Thompson case offers."].)

In Sciara v Surgical Associates of Western New York, P.C., Justice Curran examined Thompson at length:

"Thompson should be read in light of its facts. There, the Fourth Department addressed attempts by a nonparty witness's counsel to object to form and relevance. The relief requested by plaintiff on the motion involved in Thompson excepted out objections for privileged matters' and questions deemed abusive or harassing'. Thus, the facts in Thompson do not support a conclusion that counsel for a nonparty witness is prohibited from protecting his or her client from an invasion of a privilege or plainly improper questioning causing significant prejudice if answered.

Uniform Rules §§ 221.2 and 221.3 are not limited to parties but apply to deponents.' Thus, in the event that a question posed to a nonparty fits within the three exceptions listed in § 221.2, the nonparty's attorney is entitled to follow the procedures set forth in §§ 221.2 and 221.3."

Commentators have suggested that Thompson does not address the situation, where a party's counsel represents the non-party as well, because a party's counsel may raise objections at trial. This Court agrees.

"Thompson does not place any restrictions on the ability of an attorney representing a party to the action to represent a non-party at the deposition and to participate fully in that deposition. Thus, it is the hat worn by the attorney, rather than that worn by the witness, that controls the ability of the attorney to participate in a nonparty deposition."

Plaintiff maintains that defendants' counsel should be disqualified from representing Skanska because defendants' counsel allegedly solicited Skanska for representation, in violation of Rule 7.3 of the Rules of Professional Conduct (22 NYCRR 1200.0). Plaintiff also argues that Skanska's representation by defendants' counsel would create a conflict of interest, in that defendants could potentially implead Skanska as a third-party defendant. In addition, plaintiff contends that, under Niesig v Team I (76 NY2d 363 [1990]), plaintiff is entitled to have direct access to employees of a non-party.

Plaintiff has not demonstrated that defendants' counsel improperly solicited Skanska in violation of Rule 7.3 of the Rules of Professional Conduct. First, defendants' counsel maintains that Skanska approached defendants' counsel and was therefore not solicited. (Bruno Affirm. ¶ 8.) Second, Rule 7.3 (a) (1) states, "A lawyer shall not engage in solicitation by in-person or telephone contact . . . unless the recipient is a . . .former or existing client." Defendants' counsel asserts that Skanska is a former client. (Bruno Affirm. ¶ 9.) Although plaintiff speculates as to a conflict of interest that may arise from counsel's dual representation of defendants and non-party Skanska, plaintiff has no standing to seek disqualification, because plaintiff does not claim that he has ever had an attorney-client relationship with defendants' counsel. (Hall Dickler Kent Goldstein & Wood, LLP v. McCormick, 36 AD3d 758, 759 [2d Dept 2007] Develop Don't Destroy Brooklyn v Empire State Dev. Corp., 31 AD3d 144 [1st Dept 2006].) In any event, by counsel, defendants state that they have no intention of commencing a third-party action against Skanska. (Bruno Affirm. ¶ 10.)

Contrary to plaintiff's argument, neither Niesig v Team I nor Muriel Siebert & Co., Inc. v Intuit, Inc. (8 NY3d 506 [2007]) stands for the proposition that a non-party witness is not entitled to be represented by counsel for the purposes of informal discovery. An attorney who engages in informal discovery with a non-party must "make clear that any discussion with counsel is entirely voluntary." (Arons v Jutkowitz, 9 NY3d 393, 410 [2007].) Because the discussion is voluntary in informal discovery, a non-party wishing to talk informally to counsel only with an attorney present may therefore not be forced to forgo access to counsel.

Therefore, plaintiff's motion is denied. 

Appeal from a decision of the Workers' Compensation Board, filed March 18, 2011, which ruled that the death of claimant's husband was causally related to his employment.

Claimant's husband (hereinafter decedent) was employed as a receiver at a grocery store. He was assigned, however, to be the acting store manager during the afternoon and evening shift of February 7, 2010, which was the day of the Super Bowl, an historically busy day at the store. At approximately 7:00 P.M., decedent collapsed to the floor of the store and soon after died. 

Claimant thereafter applied for workers' compensation death benefits. Following hearings, the Workers' Compensation Law Judge determined that decedent's death was not causally related to his employment. On review, the Workers' Compensation Board reversed, and the employer and its claims administrator (hereinafter collectively referred to as the employer) now appeal.

We affirm. Initially, we note that the Board's determination of a causal relationship was not solely based upon the presumption contained within Workers' Compensation Law § 21 (1), but also relied upon the medical evidence and testimony from the hearing therein (see Matter of Tompkins v Sunrise Heating Fuels, 271 AD2d 888, 888 [2000]).

"It is well settled that the Board is vested with the discretion to assess the credibility of medical witnesses and its resolution of such issues is to be accorded great deference, particularly with respect to issues of causation" (Matter of Peterson v Suffolk County Police Dept., 6 AD3d 823, 824 [2004] [citation omitted]; accord Matter of Provenzano v Pepsi Cola Bottling Co., 30 AD3d 930, 932 [2006]). 

Here, claimant's expert opined that decedent suffered from extensive cardiovascular disease and that he died from a myocardial infarction. He further opined that the myocardial infarction was triggered by the stress and excitement resulting from the responsibility of running the entire store on Super Bowl Sunday, as well as decedent being involved in an altercation with an irate customer prior to collapsing. Accordingly, he concluded that decedent's death was causally related to his employment.

The employer's expert found the same cause of death, but concluded that, if there was no evidence of significant work-related stress or aggravation immediately preceding decedent's collapse, then decedent's death was not causally related to his employment. Although we agree with the employer that the record reflects that the altercation with the customer occurred hours before decedent's death, we note that the employer's expert also testified that, while uncommon, it is possible that an event that does not occur in close proximity to a myocardial infarction could still be a triggering event. 

Accordingly, despite evidence in the record that may support a contrary result, we find the Board's decision supported by substantial evidence, and we decline to disturb it (see Matter of Tompkins v Sunrise Heating Fuels, 271 AD2d at 889).

Comment:  As Billy Joel sang, "Working too hard can give you a heart attack." 

Larry Rogak

In an action to recover benefits under an insurance policy, the defendant appealed from an order of the Supreme Court, Suffolk County (Mayer, J.), which denied summary judgment.

The plaintiff Raymond Azzato and a nonparty, Richard Pleasants, purchased certain real property located in East Islip (hereinafter the subject property), which was improved with a residence (hereinafter the subject dwelling). Azzato and his wife, the plaintiff Tricia Williamson, secured from the defendant insurance carrier a landlord's package insurance policy covering the subject dwelling and, inter alia, certain personal property located in the subject dwelling. The policy did not name Pleasants as a co-insured. The policy stated that Azzato and Williamson were insured only to the extent that they possessed an insurable interest in the property.

The plaintiffs commenced this action to recover benefits under the policy after a fire occurred on the subject property. The plaintiffs sought to recover the sum of $250,000, alleging that the defendant improperly denied their claim.

The defendant moved, inter alia, for summary judgment dismissing the complaint. The defendant contended that it had properly denied the claim since Azzato had submitted fraudulent evidence purporting to establish the cost of certain appliances which were allegedly located in the subject dwelling at the time of the fire. The defendant contended that Azzato's fraud vitiated coverage, since his actions breached the concealment and fraud provision of the policy. The defendant argued, in the alternative, that Azzato's insurable interest was limited to 50% of the value of the subject dwelling, as he was only a 50% owner of that dwelling. The defendant also contended that it was entitled to summary judgment dismissing the complaint insofar as asserted by Williamson since she was not named on the deed to the subject property and, therefore, did not have any insurable interest.

The concealment and fraud provision of the policy provided, inter alia, that the defendant "does not cover you or any other person insured under this policy who has concealed or misrepresented any material fact or circumstance, before or after a loss." The defendant contends that Azzato breached this provision when he submitted a store receipt purporting to demonstrate the cost of the appliances allegedly damaged in the fire.

A concealment and fraud provision of an insurance policy "makes clear that the general rule of insurance law requiring good faith and fair dealing applies to fraudulent statements and false swearing made by an assured after a loss" (Domagalski v Springfield Fire & Mar. Ins. Co., 218 App Div 187, 189). "This provision is breached if an insured tenders a fraudulent proof of loss as the basis for a recovery under the policy" (Saks & Co. v Continental Ins. Co., 23 NY2d 161, 165; see Kantor Silk Mills, Inc. v Century Ins. Co., Ltd., 253 NY 584).

"Courts have been assiduous to prevent the use of the clause to bar a recovery where the alleged fraud or false swearing was not intentional, or the false statements were matters of opinion honestly, although mistakenly, held by the assured" (Domagalski v Springfield Fire & Mar. Ins. Co., 218 App Div at 189; see 70A NY Jur 2d, Insurance § 2017). "On the other hand, [courts] have not hesitated to hold that a recovery would not be permitted if it clearly appeared that the assured had intentionally made false and fraudulent statements or intentionally sworn falsely" (Domagalski v Springfield Fire & Mar. Ins. Co., 218 App Div at 189; see 70A NY Jur 2d, Insurance § 2022 [2011]).

Thus, a key issue in determining whether a concealment and fraud provision of an insurance policy has been breached is whether the inaccurate proof of loss was created or submitted with "a willful intent to defraud or to misrepresent the material facts" (St. Irene Chrisovalantou Greek Orthodox Monastery v Cigna Ins. Co., 226 AD2d 624, 624; see Christophersen v Allstate Ins. Co., 34 AD3d 515, 516). One manner in which fraudulent intent may be established is through proof that the claimed value of the loss was grossly disproportionate to the actual value of the loss (see Saks & Co. v Continental Ins. Co., 23 NY2d at 165; see also 70A NY Jur 2d, Insurance § 2022 [2011]). Such an inference of fraudulent intent raised by proof that the insured's claimed losses were grossly overvalued "becomes conclusive where it is shown that the difference between the amounts claimed in the proof of loss and those actually proved to have been destroyed are grossly disparate and the explanation tendered is so unreasonable or fantastic that it is inescapable that fraud has occurred" (Saks & Co. v Continental Ins. Co., 23 NY2d at 165-166; see Pipo Bar & Rest., Inc. v Certain Underwriters at Lloyd's at London, 15 AD3d 556, 556-557).

Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted by Azzato by demonstrating that Azzato breached the concealment and fraud provision of the policy when he submitted proof, in support of his claim, purporting to establish the cost of the appliances allegedly located in the subject dwelling at the time of the fire. The defendant established that the price values submitted by Azzato were significantly inflated from the actual price that he paid (see Pogo Holding Corp. v New York Prop. Ins. Underwriting Assn., 97 AD2d 503, 505, affd 62 NY2d 969; Domagalski v Springfield Fire & Mar. Ins. Co., 218 App Div at 189).

In opposition, the plaintiffs failed to raise a triable issue of fact with respect to Azzato's breach of the concealment and fraud provision of the policy (see Pipo Bar & Rest., Inc. v Certain Underwriters at Lloyd's at London, 15 AD3d at 556-557). The plaintiffs' contention that the proof Azzato submitted was only intended to be a post-loss estimate of the replacement value of the appliances is belied by the fact that the proof he submitted was made to look like an actual receipt provided to him by the store on the date that he originally purchased the appliances (cf. Saks & Co. v Continental Ins. Co., 23 NY2d at 165-166). Thus, the form, in addition to the content, of Azzato's submitted proof of loss evinced his intent to deceive the defendant. Accordingly, the Supreme Court should have, upon reargument, adhered to its original determination granting that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted by Azzato.

However, the independent wrongdoing of Azzato does not automatically vitiate any rights that Williamson may have under the terms of the policy. As indicated, the concealment and fraud provision of the policy only barred recovery from a named insured "who has concealed or misrepresented any material fact or circumstances." Accordingly, this clause only serves to vitiate the coverage of a named insured who has actually engaged in misrepresentation (see Krupp v Aetna Life & Cas. Co., 103 AD2d 252, 261; cf. Lane v Security Mut. Ins. Co., 96 NY2d 1, 5).

Here, the defendant failed to tender any evidence demonstrating that Williamson participated in, or had knowledge of, Azzato's fraudulent actions, or that she otherwise made any material misrepresentations to the defendant (see Lane v Security Mut. Ins. Co.,96 NY2d at 5; Reed v Federal Ins. Co., 71 NY2d 581, 588; Krupp v Aetna Life & Cas. Co., 103 AD2d at 261). Accordingly, as the plaintiffs correctly contend, the defendant failed to demonstrate that Williamson breached the concealment and fraud provision of the policy.

Nevetheless, the defendant moved for summary judgment dismissing the complaint insofar as asserted by Williamson on the alternative ground that she did not have an insurable interest in the damaged property. The defendant contends that the Supreme Court erred when it, in effect, concluded that the insurable interest clause of the policy was ambiguous and that resolution of the issue required consideration of extrinsic evidence.

"Extrinsic evidence will be considered only if the contract is deemed ambiguous" (Maser Consulting, P.A. v Viola Park Realty, LLC, 91 AD3d 836, 837). "Whether an agreement is ambiguous is a question of law for the courts" (Riverside S. Planning Corp. v CRP/Extell Riverside, L.P., 13 NY3d 398, 404 [internal quotation marks omitted]). "A contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion" (Greenfield v Philles Records, 98 NY2d 562, 569, quoting Breed v Insurance Co. of N. Am., 46 NY2d 351, 355). "Thus, if the agreement on its face is reasonably susceptible of only one meaning, a court is not free to alter the contract to reflect its personal notions of fairness and equity" (Greenfield v Philles Records, 98 NY2d at 569-570).

Here, the insurable interest clause stated that, "in the event of a covered loss, [the defendant] will not pay for more than an insured person's insurable interest in the property." The term "insurable interest" has been defined by statute (Insurance Law § 3401). Not only is the term "insurable interest" defined in the Insurance Law, it has long been utilized by courts to describe a particular legal concept (see e.g. Scarola v Insurance Co. of N. Am., 31 NY2d 411, 412-413; National Filtering Oil Co. v Citizen's Ins. Co. of Mo., 106 NY 535, 541; Herkimer v Rice, 27 NY 163, 168-169). Contrary to the plaintiffs' contention, the insurable interest provision of the policy was not ambiguous.

The defendant further contends that, since Williamson does not have an insurable interest in any of the property covered by the policy, the insurable interest clause provides a ground for dismissing the complaint insofar as asserted by her. The plaintiffs assert that Williamson held an insurable interest in property covered by the policy.

"It has long been the rule that, in order to prevent fraud and crime and to prohibit wagering contracts on property in which the insured possesses no interest, the lack of an insurable interest in the property insured renders the property insurance void and unenforceable" (Etterle v Excelsior Ins. Co. of N.Y., 74 AD2d 436, 438; see Scarola v Insurance Co. of N. Am., 31 NY2d at 413). Thus, "the law of this State requires that the named insured have an insurable interest in the subject matter of the policy of insurance" (Citizens Sav. & Loan Assn. of N.Y. v Proprietors Ins. Co., 78 AD2d 377, 379; see Insurance Law § 3401).

In this case the insurable interest provision of the policy stated that "in the event of a covered loss, the defendant would not pay for more than an insured person's insurable interest in the property covered." Thus, the insurable interest provision of the policy plainly limits the insured's recovery to the extent of that person's insurable interest.

Under the Insurance Law, the term " insurable interest'" is defined to include "any lawful and substantial economic interest in the safety or preservation of property from loss, destruction or pecuniary damage" (Insurance Law § 3401). "Generally, a party possesses an insurable interest in the subject matter which is insured where he has such a relation or connection with, or concern in, such subject matter that he will derive pecuniary benefit or advantage from its preservation, or will suffer pecuniary loss or damage from its destruction, termination, or injury by the happening of the event insured against" (National Superlease v Reliance Ins. Co. of N.Y., 123 AD2d 608, 608).

As the plaintiffs correctly contend, "a legal or equitable interest in the property insured is not necessary to support an insurable interest" (Weissman v Galway Constr. Corp., 239 AD2d 410, 411; see National Filtering Oil Co. v Citizen's Ins. Co. of Mo., 106 NY at 541). Rather, "a person has an insurable interest in a property whenever he or she would profit by or gain some advantage from the property's continued existence or suffer some loss or disadvantage by its destruction" (3 Couch on Insurance 3d § 41:11; see National Filtering Oil Co. v Citizen's Ins. Co. of Mo., 106 NY at 541).

However, "the interest must be of such a character that the destruction of the property will have a direct, and not a mere remote or consequential, effect upon it" (3 Couch on Insurance 3d § 41:11). "Mere possession or license to use the property is insufficient to support an insurable interest where the insured would experience no direct economic loss by its destruction" (id.; see Cassadei v Nationwide Mut. Fire Ins. Co., 21 AD3d 681).

Here, in support of that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted by Williamson, the defendant submitted the deed for the subject property which transferred the subject property to Azzato and Pleasants as tenants-in-common. In addition, the defendant submitted a supplemental fire claim form submitted in support of the plaintiffs' claim, which indicated that 50% of the subject property was owned by Azzato and that the other 50% of the subject property was owned by Pleasants. Williamson's name did not appear on the deed or the supplemental fire claim form.

"An insurer undertakes a separate and distinct obligation to the various insured parties" (BMW Fin. Servs. v Hassan, 273 AD2d 428, 429), and the insurable interest of each insured is treated as separate and distinct from the other insured parties' insurable interests (see Harvey v Cherry, 76 NY 436, 443; Graziane v National Sur. Corp., 120 AD2d at 773, 775). This rule has been applied to the rights of insured spouses and one spouse's contractual right under an insurance policy will be treated as distinct from the other spouse's rights under that policy (see Graziane v National Sur. Corp., 120 AD2d 773, 775; Krupp v Aetna Life & Cas. Co., 103 AD2d at 258).

We conclude that the defendant's submissions established that Azzato's insurable interest in the subject dwelling was limited to 50% of the value of that dwelling (see Harvey v Cherry, 76 NY at 443; Graziane v National Sur. Corp., 120 AD2d at 775), and that Williamson did not have any insurable interest in the subject dwelling (see Peker v Allstate Ins. Co., 13 AD3d 596, 598; Silberman v Royal Ins. Co., 184 AD2d 562, 562). Accordingly, the defendant established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted by Williamson.

In opposition, the plaintiffs failed to raise a triable issue of fact as to whether Williamson had an insurable interest in the subject dwelling. The plaintiffs contend that Williamson contributed to the purchase of Azzato's share of the subject property, that she helped to maintain it after it was purchased, and that she furnished portions of the subject dwelling with her own personal property. The mere fact that Williamson may have helped to pay for the subject property does not establish that she has an insurable interest in that property (see Silberman v Royal Ins. Co., 184 AD2d at 562). Furthermore, the fact that she may have helped to maintain her husband's investment does not provide a basis for concluding that she had an insurable interest such that the loss of the subject dwelling would have directly affected her pecuniary interests (see Judge v Travelers Ins. Co., 262 AD2d 983, 984). In addition, the plaintiffs have not alleged that Williamson earned any income from the subject property, resided in the subject dwelling, or had any legal or equitable right to do so (cf. Redfield v Holland Purchase Ins. Co., 56 NY 354, 357; Etterle v Excelsior Ins. Co. of N.Y., 74 AD2d at 440).

Accordingly, the plaintiffs failed to raise a triable issue of fact as to whether Williamson had an insurable interest in the subject dwelling and the Supreme Court erred when it, upon reargument, denied that branch of the defendant's motion which was for summary judgment dismissing so much of the complaint insofar as asserted by Williamson as sought to recover damages under the provisions of the policy for injury to the subject dwelling. However, in light of the fact that the policy at issue covered personal property that was located in the dwelling, Williamson nevertheless raised a triable issue of fact by tendering evidence to show that she was the owner of an antique dining room set which allegedly was destroyed in the fire (cf. Cassadei v Nationwide Mut. Fire Ins. Co., 21 AD3d at 682). Accordingly, the Supreme Court properly, upon reargument, denied that branch of the defendant's motion which was for summary judgment dismissing so much of the complaint insofar as asserted by Williamson as sought to recover under the provision of the policy covering personal property.

In light of the foregoing, we need not reach the defendant's remaining contention.

This appeal arises out of a personal injury action in which the plaintiff alleges that he sustained injuries as he was exiting a subway car on the R train at Whitehall Street, Manhattan. At trial, the plaintiff testified that the defendant's conductor negligently closed the doors on his ankle. The conductor of the train testified that he followed the correct procedures as to opening and closing subway doors, and that nothing out of the ordinary happened on the day of the plaintiff's accident. There were no witnesses to the incident according to the plaintiff, other than the "O-mouthed" passengers [see below for explanation of "O-mouthed - LNR] remaining on the train as it pulled out of the station. As the motion court acknowledged, this case from the beginning rested on a credibility issue.

The record reflects that at trial, the defense counsel advanced the theory that the plaintiff's account of his accident was implausible. In his opening remarks, the defense counsel told the jury, without objection, that the evidence would establish that "the only way the accident could have happened was because of some fault on the part of the plaintiff." Defense counsel told the jury "just use your common sense to try to understand the mechanics of something like this happening."

The plaintiff testified as follows: On May 11, 2007, he was getting ready for an evening performance in Manhattan when he realized he had to return to his home in Staten Island to retrieve a forgotten item of clothing for the performance; he boarded the R train at 23rd Street station for the 20-25 minute trip to Whitehall Street, the last stop in Manhattan before the train continued to Brooklyn; he had not brought a book or video game with him, but he was "going over the show in his mind and thinking about it."

The plaintiff testified that upon reaching Whitehall Street, he exited the subway car at a normal pace. He described the accident as follows:

"I put my left foot onto the platform, and then as I was passing through the doorway, I felt an impact and I fell forward onto my hands ...

When I looked out at the subway car, I saw that my leg was still on the subway and that I was lying on the ground, and then I saw the faces of the people in the car who all looked very surprised, their faces were all in an O-mouthed expression of surprise ... I pulled the leg off of the train, and almost immediately after the train doors closed and the train took off."

In cross-examining the plaintiff, the defense counsel attempted to show that the plaintiff's right ankle was caught in the subway door because the plaintiff was not paying attention and moved to exit the subway car too late rather than because the train conductor negligently closed the doors as the plaintiff was exiting the subway car. Further, defense counsel attempted to elicit the fact that the plaintiff could not risk failing to alight at the last stop in Manhattan. For example, defense counsel asked whether "Whitehall Street station is the last stop ... in Manhattan in order to get to the ferry," and whether if he missed that stop, he would "have to travel all the way to Brooklyn."

The conductor of the train on which the plaintiff alleged he was riding testified that on the day of the accident he followed the procedures that are in place for all conductors with respect to the opening and closing of doors. Conductors open the doors using two buttons on the master control panel; they wait for a specified time, then make an announcement to stand clear of the closing doors, and then they close the doors. The conductor testified that the lights on the panel would indicate if the doors had not closed. The conductor further testified that he did not remember seeing anyone fall or get caught in the doors in the Whitehall Street station at or around the time that the plaintiff allegedly incurred the injury.

In summation, the defense counsel posited that the plaintiff "jetted out" of the train at the last second. Defense counsel stated, "I am not a witness. What I say is not testimony. I'm only giving it to you to ponder." He continued:

"After all, if you imagine a person standing in a doorway just standing there when the doors closed — and all of you have seen this happen and I know this, during jury selection, you've all seen doors close on people and passengers, okay. You know what happens. It's the upper part of the person's body that's contacted."

At this point, the plaintiff objected, and the court sustained the objection. Then the defense counsel continued:

"Because as I said in my opening, the plaintiff's body was outside of the train at the time of the occurrence. Why was it that way? I have no idea but it wasn't because his leg just happened to be at a particular point that it could be grabbed and held ...

Think about it, how it happened. If he were going through, the upper part of his body would have been hit and would have been the contact point, his arm, shoulder or something like that."

The plaintiff objected again, and the court sustained the objection. The defense counsel then completed his sentence: "But not his leg."

At this point, the court repeated that it had sustained the objection. Defense counsel stated: "There is no other way I see it. You can — you're the triers of the facts. You may decide otherwise."

The court instructed the jury that a finding of the defendant's negligence would require the jury to decide that the plaintiff was not jumping off the train at the very last minute. Moreover, it observed that the case rested on a credibility issue. In other words the jury would have to decide which witness it found credible — the plaintiff or the train conductor — since their accounts conflicted. Specifically, the court instructed the jury, consistent with the Pattern Jury Instructions, as follows:

"In deciding how much weight you choose to give to the testimony of any particular witness, ... The tests used in your everyday affairs to decide reliability or unreliability of statements made to you by others are the tests you will apply in your deliberations ... You bring with you to this courtroom all of the experience and background of your lives."

Subsequently, the jury rendered a 5-1 verdict in favor of the defendant. The plaintiff moved pursuant to CPLR 4404 to set aside the verdict on the grounds that defense counsel's improper conduct deprived the plaintiff of the right to a fair trial; that the jury verdict was against the weight of evidence; and that the verdict was not supported by sufficient evidence. In support of the motion, the plaintiff offered the affidavit of a dissenting juror, who stated that the comments of other jurors reflected those of the defense counsel that the accident happened because the plaintiff was "rushing" out of the train.

By order dated May 18, 2011, the motion court set aside the defense verdict and ordered a new trial. The court in its decision included verbatim the defense counsel's summation comments, as set forth above, and held that the defense counsel "created an atmosphere that deprived the plaintiff of a fair trial, not by an isolated remark during summation, but by continual and deliberate efforts to divert attention from the issues." Contrary to its view when charging the jury that the case rested on a credibility issue, the court noted instead that "given the plausible, uncontradicted evidence from plaintiff that the accident occurred in the manner he claimed, and not in the manner which defense counsel asserted, substantial justice would not be done if the verdict were permitted to stand." It further held that "the inflammatory and prejudicial comments made by defendant's counsel so contaminated the proceedings as to deny plaintiff his right to a fair trial," and that the counsel "so tainted the course of the trial that he effectively destroyed any chance for a fair outcome by interjecting his own view of the facts to the jury."

For the reasons set forth below, we reverse and reinstate the verdict in favor of the defendant. As a threshold matter, the defendant correctly asserts that the issue of counsel's alleged "misconduct" was unpreserved because the plaintiff raised the claim for the first time in his motion to set aside the verdict. See Califano v. City of New York, 212 A.D.2d 146, 152-53, 627 N.Y.S.2d 1008, 1012 (1st Dept. 1995).

However, under CPLR 4404(a), the motion court has the discretion to set aside the verdict and order a new trial "in the interest of justice." The use of such discretionary power is warranted when the aggrieved party is deprived of substantial justice or a counsel's misconduct unduly affected the verdict. Micallef v. Miehle Co., Div. of Miehle-Gross Dexter, 39 N.Y.2d 376, 381, 384 N.Y.S.2d 115, 118, 348 N.E.2d 571, 574 (1976).

Here, we conclude the motion court erred in finding that the defense counsel's remarks "contaminated" the proceedings and thereby deprived the plaintiff of his right to a fair trial. Accordingly, we find that the motion court abused its discretion in setting aside the verdict.

It is well established that a counsel is afforded wide latitude in summation to characterize and comment on the evidence.  Chappotin v. City of New York, 90 AD3d 425, 426, 933 N.Y.S.2d 856, 857 (1st Dept. 2011), lv. denied 19 NY3d 808, 2012 N.Y. Slip Op. 77463 (2012). Defense counsel remains "within the broad bounds of rhetorical comment in pointing out the insufficiency and contradictory nature of a plaintiff's proof" without depriving the plaintiff of a fair trial.  Furthermore, making a reference to alternative ways in which evidence can be interpreted may constitute "a fair comment upon the evidence." Cerasuoli v. Brevetti, 166 A.D.2d 403, 404, 560 N.Y.S.2d 468, 469 (2d Dept. 1990) (holding that remarks suggesting other ways in which needle could have been embedded in plaintiff's abdomen were fair comments upon evidence, in medical malpractice action).

While there are certain boundaries to the counsel's latitude, (see Caraballo v. City of NewYork, 86 A.D.2d 580, 581, 446 N.Y.S.2d 318, 319 (1st Dept. 1982)), the defense counsel in this case did not exceed those boundaries. Counsel's remarks on summation simply did not amount to an argument based on facts not in the record. See e.g. Benson v. Behrman, 248 A.D.2d 153, 154, 670 N.Y.S.2d 760, 760 (1st Dept. 1998) (upholding "restraining plaintiff's counsel from straying outside four corners of the evidence and offering his own speculation on summation"); see also People v. Marin, 102 A.D.2d 14, 33, 478 N.Y.S.2d 650, 662 (2d Dept. 1984), aff'd, 65 N.Y.2d 741, 492 N.Y.S.2d 16, 481 N.E.2d 556 (1985) (holding that verdict cannot stand based on speculation and conjecture). The defense counsel merely argued that the plaintiff's account of the accident did not make sense, pointing out the insufficient and contradictory nature of his testimony. Thus, his summation was directed at the credibility of the plaintiff's testimony, and was not an interjection of the counsel's own view of the facts. 

The plaintiff, as the sole witness to the accident, claimed that the doors shut only on his right ankle while he was exiting the subway car at a normal pace. The defense counsel simply posited that in the normal course of events the doors would close on the upper part of an individual's body if the person was walking out of the subway car at a normal pace because the upper body is wider than the right leg.

Moreover, the defense counsel's suggestion that the jurors consider their own experience of using the subway does not render his arguments speculative or conjectural. Jurors are required to evaluate conflicting evidence and draw conclusions therefrom based on their day-to-day experiences. Notably, that was precisely what the motion court instructed the jury to do.

We also find that the counsel's remarks that the accident happened because the plaintiff was "jetting out" of the train constituted a fair comment on the evidence. As in Cerasuoli, defense counsel referred to an alternative way in which the doors could shut only on the right leg. See 166 A.D.2d at 404, 560 N.Y.S.2d at 469.

Further, the defense counsel did not make any statements that were designed to inflame the jury's passion, which would result in the jury deciding the case on an emotional rather than rational basis. See cf. Minichiello v. Supper Club, 296 A.D.2d 350, 352, 745 N.Y.S.2d 24, 25 (1st Dept. 2002) (holding that the misconduct of plaintiff's counsel warranted mistrial when counsel analogized a witness to a Nazi). On the contrary, defense counsel specifically asked the jurors to evaluate the plaintiff's account of the accident consistent with their own experiences of seeing subway doors close.

Finally, defense counsel did not make any character attacks on the plaintiff or the plaintiff's witnesses. See cf. Steidel v. County of Nassau, 182 A.D.2d 809, 814, 582 N.Y.S.2d 805, 808 (2d Dept. 1992) (new trial when counsel referred to opposing expert as "hired gun" whose idea of truth and justice is that "this is a game to be played"). In order to warrant a mistrial, an ad hominem attack must be extreme and pervasive. See Chappotin, 90 AD3d at 426, 933 N.Y.S.2d at 857 (denying mistrial where defense counsel referred to plaintiff as a man who has played the system for 15 years without concerns about medical care or jobs).

Here, the defense counsel primarily attempted to undermine the credibility of the plaintiff's testimony based on its inherent contradictions, and not by a character attack on the plaintiff. Thus, we conclude that the motion court erred in finding that defense counsel's conduct deprived the plaintiff of his right to a fair trial.

With respect to the juror affidavit, we note that the motion court erroneously considered the dissenting juror's postverdict affidavit in its determination of the motion. "Juror affidavits should not be used to impeach a jury verdict absent extraordinary circumstances." Martinez v. Te, 75 AD3d 1, 7, 901 N.Y.S.2d 161, 165 (1st Dept. 2010), citing Mosher v. Murell, 295 A.D.2d 729, 731, 744 N.Y.S.2d 61, 64 (3d Dept. 2002), lv. denied 98 N.Y.2d 613, 751 N.Y.S.2d 168, 780 N.E.2d 979 (2002); see also Hersh v. New York City Tr. Auth., 290 A.D.2d 258, 735 N.Y.S.2d 527 (1st Dept. 2002) (affirming mistrial for juror confusion not based on juror affidavits but based on verdict sheets and juror questions). A court may take into account juror affidavits only to clarify errors in deliberation, such as when juror confusion is apparent from a nonsensical verdict or there are obvious errors such as omissions or confusion on a special verdict sheet. See e.g. Porter v. Milhorat, 26 AD3d 424, 809 N.Y.S.2d 210 (2d Dept. 2006) (granting new trial in medical malpractice action where jury awarded future damages without filling out past damages in contradiction to instructions given on verdict sheet).

In this case, there were no extraordinary circumstances to warrant the use of a dissenting juror's affidavit to impeach the verdict. The verdict was not "nonsensical" if the jurors accepted the subway conductor's testimony, and thus inferred that the plaintiff's leg was caught between the doors because he "jetted out" of the subway car at the last moment. Moreover, the jury verdict is supported by the circumstantial evidence that the plaintiff had reason to be in a hurry and could not "afford" to miss the last subway stop in Manhattan. Based on the evidence, the jury could reasonably infer that the plaintiff's haste at the last moment, not the conductor's negligence, caused the injuries. In making that inference, the jury did not need expert testimony since the way in which doors of a subway close is not outside the experience and knowledge of the average juror. See Ferguson v. Mantell, 216 A.D.2d 160, 161, 628 N.Y.S.2d 286, 287-88 (1st Dept. 1995) (finding expert testimony proper when information provided is "outside the experience and knowledge of the average juror"). For all of the foregoing reasons, we also reject the plaintiff's argument that the verdict in favor of the defendant was against the weight of the evidence.

Accordingly, the order of the Supreme Court, New York County (Joan M. Kenney, J.), entered May 31, 2011, which granted the plaintiff's motion pursuant to CPLR 4404 to set aside the jury verdict in favor of the defendant and ordered a new trial, should be reversed, on the law, without costs, the plaintiff's motion denied, and the verdict reinstated. The Clerk is directed to enter judgment dismissing the complaint.

In Pioneer Tower Owners Assn. v State Farm Fire & Cas. Co. (12 NY3d 302 [2009]), we held that an "earth movement" exclusion in an insurance policy did not unambiguously apply to excavation. We now confront a policy in which a similar exclusion is expressly made applicable to "man made" movement of earth. We hold that this added language eliminates the ambiguity, and that loss caused by excavation is excluded from the policy.

Travelers Indemnity Company issued to plaintiff an insurance policy covering "direct physical loss of or damage to" a building in Brooklyn. Under the heading "EXCLUSIONS," the policy said:

"1.We will not pay for loss or damage caused directly or indirectly by any of the following. . . .

"b.Earth Movement

"(4) Earth sinking (other than sinkhole collapse), rising or shifting including soil conditions which cause settling, cracking or other disarrangement of foundations or other parts of realty. Soil conditions include contraction, expansion, freezing, thawing, erosion, improperly compacted soil and the action of water under the ground surface;

"All whether naturally occurring or due to man made or other artificial causes."

The building suffered cracks as a result of an excavation being conducted on the lot next door to it. Plaintiff submitted a claim, which Travelers rejected, relying on the earth movement exclusion. Plaintiff sued for breach of the policy. Supreme Court denied Travelers' motion for summary judgment; the Appellate Division affirmed (Bentoria Holdings, Inc. v Travelers Indem. Co., 84 AD3d 1135 [2d Dept 2011]), but granted leave to appeal to this Court. We now reverse.

Pioneer was in most respects virtually identical to this case. The defendant there insured a building against "accidental direct physical loss"; the building suffered cracks and other damage as a result of an excavation on an adjoining lot. The defendant refused to pay, relying on an earth movement exclusion very similar to the one quoted above, with the distinction that the last words of the earth movement exclusion here — "All whether naturally occurring or due to man made or other artificial causes" — were absent in Pioneer.

The plaintiff in Pioneer argued that the policy did not clearly exclude "an excavation — the intentional removal of earth by humans". We found that argument to be "reasonable", and therefore held that the earth movement exclusion "did not unambiguously remove" excavation damage from the coverage of the policy. But the same argument is not available to plaintiff here. By expressly excluding earth movement "due to man made or artificial causes," the policy contradicts the idea that "the intentional removal of earth by humans" is not an excluded event. This policy cannot reasonably be read to cover the damage on which plaintiff's claim is based.

Accordingly, the order of the Appellate Division should be reversed, with costs, the motion of Travelers Indemnity Company for summary judgment dismissing the complaint as against it granted, and the certified question answered in the negative. 
* * * * * * * * * * * * * * * * * 
Comment:  Thus, for any insurer which has adopted the revised version of the earth movement exclusion, excavation or any other "artificial" cause of soil movement that causes property damage will not be covered.

Larry Rogak

Dear clients, friends and readers:

Like 90% of Nassau County, our office still has no electricity, and so our
office phones and computers can't work. Our homes are battered, but rest assured
our office is dry and physically intact. Thank God we are all safe, and keeping
everything under control.  All your business with us is safe and sound and we
are keeping in touch with the courts regarding rescheduling motions and trials.

We are still right here to answer all your questions as usual.  As soon as the
lights are back on we will be up and running -- hopefully any day now.

In the meantime, here is how to contact us:

Email: Insurancelawyer@... (none of our individual "rogak.com" emails can
work with our server down)

Phone:
Larry Rogak - 516 322 2470
Fran Kanterman - 516 476 5486

Our post office just resumed delivery today (11/01), even though they have no
electricity either.

In this time of crisis, the team of professionals at Lawrence N. Rogak LLC is
working day and night to ensure that our valued clients continue to receive our
best.  Let us know if you have any special concerns.  As always, when there are
problems, we come up with solutions.

Stay safe and be well.  The entire region has taken a severe blow and has a long
road towards recovery. But we'll do it.

Larry Rogak

Dear Clients, Readers and Friends:

The Law Office of Lawrence N. Rogak LLC continues to operate even though power
has not yet been restored to our office.  We are working out of our homes and
covering all appearances.

The U.S. Postal Service delivery is not fully restored in our area, so if
possible, use email to send us documents and correspondence.  Only our main
email address is currently functional due to the power outage:
INSURANCELAWYER@....

You can also call my cell phone: 516 322 2470.

My best wishes to you all for a speedy recovery from this disaster.

Larry Rogak

Plaintiffs commenced this action seeking to recover damages based upon defendant's alleged breach of contract and bad faith in settling plaintiffs' insurance claim for fire damage to their house. Following joinder of issue and discovery, defendant moved for partial summary judgment dismissing certain claims, including plaintiffs' claim for consequential damages, and also sought to preclude plaintiffs' expert from testifying at trial. Supreme Court denied the motion in its entirety. Defendant now appeals.

Initially, we note that defendant's statute of limitations argument was waived by defendant's failure to raise it in the answer or amended answer, or in a pre-answer motion to dismiss (see CPLR 3211 [e]; Dougherty v City of Rye, 63 NY2d 989, 991-992 [1984]).

As to the merits, we are unpersuaded by defendant's argument that plaintiffs' claims for consequential damages, replacement cost damages for personal property, damages to the residence, and additional living costs should be dismissed because they failed to comply with defendant's discovery demands and with a November 24, 2010 discovery order issued by Supreme Court. We note that Supreme Court implicitly rejected that argument and, instead, in the order presently on appeal, enlarged the time for plaintiffs to itemize and particularize all damages alleged. "Trial courts have broad discretion in supervising the discovery process" (Mary Imogene Bassett Hosp. v Cannon Design, 84 AD3d 1543, 1544 [2011]), and we find no abuse of discretion here.

With respect to defendant's claim that plaintiffs are precluded from recovering the replacement cost of their residence, defendant first contends that the replacement cost terms of the insurance contract do not apply when the insured residence is replaced by a mobile home, as was done in this case. We do not agree. As relevant here, the loss settlement provisions specify that replacement cost terms apply to a "building covered under Coverage A . . . that has a permanent foundation and roof," but not to a mobile home whether or not it has a permanent foundation. Importantly, Coverage A describes the insured residence located on the premises, not the replacement residence. Because the insured residence at issue here was not a mobile home, defendant's argument fails.

With respect to defendant's further contention that replacement cost is unavailable because plaintiffs did not repair or replace the residence within 180 days — which they concededly did not — we agree with Supreme Court that fact questions exist regarding whether Charles Mason, defendant's claims adjustor, directed plaintiffs to leave the premises and their personal property untouched until further notice and, if so, whether they justifiably relied to their detriment on that purported directive (see Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96, 106 [2006]; Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184 [1982]).

Similarly, fact questions exist regarding plaintiffs' claim for consequential damages. "[C]onsequential damages resulting from a breach of the covenant of good faith and fair dealing may be asserted in an insurance contract context, so long as the damages were within the contemplation of the parties" (Panasia Estates, Inc. v Hudson Ins. Co., 10 NY3d 200, 203 [2008] [internal quotation marks and citations omitted]; see Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d 187, 192 [2008]; Gruenspecht v Balboa Ins. Co., 93 AD3d 482, 482 [2012]). 

Here, plaintiffs allege that defendant failed to investigate and pay their claim in a timely and good faith manner, which resulted in increased damage to the insured property, necessary code upgrades, their purchase of the double-wide mobile home so they would have a place to live, and counsel fees. Such additional damages should be considered to be within contemplation of the parties as foreseeable consequences of an insurer's bad faith delay in performing its obligations under the contract. With respect to whether defendant did, in fact, act in bad faith, plaintiffs have submitted the affidavit of insurance adjuster William Hathaway, which opines that the actions and manner of defendant's adjuster in handling plaintiffs' insurance claim deviated from accepted adjusting practices and standards in numerous respects. Although defendant's expert submitted a contrary affidavit, the question of defendant's bad faith in settling the insurance claim remains open, as does the issue of whether plaintiffs can, upon completion of discovery, prove damages resulting from defendant's alleged injurious conduct.

In this action for personal injuries allegedly suffered by plaintiff while she was a passenger in a vehicle owned by defendant Advance and operated by defendant Lopez when it was rear-ended by a vehicle driven by defendant Joseph DiGerardo, Jr., the motion court properly denied summary judgment to defendants Advance and Lopez. 

Although a rear-end collision with a stopped vehicle creates a presumption of negligence on the part of the operator of the moving vehicle(see Berger v New York City Hous. Auth., 82 AD3d 531 [1st Dept 2011]),summary judgment is not warranted where, as here, there are questions of fact as to whether the stopped vehicle was the proximate cause of the accident. 

There is evidence indicating that defendant Lopez's vehicle "suddenly swerved from the extreme right lane to the far left lane (across two lanes of traffic) and suddenly stopped short" just prior to the collision.