ACCIDENT VICTIM DEFEATS "THRESHOLD" SUMMARY JUDGMENT MOTION; CASE DOESN'T SAY WHY

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Munoz v. Irizarri

Date: Sept. 20, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens Bronx; Queens injury attorney)

Comment: Another unsatisfying No-Fault "serious injury" threshold summary judgment motion arising out of an automobile or car accident; plaintiff/accident-victim wins this one.

The Court notes that the defense met its prima facie (initial) burden -- as the side requesting summary judgment -- of showing no "serious injury."

However, the plaintiff then rebutted and came back with evidence to show her cervical (neck) and lumbosacral (lower back) regions of her spine were seriously injured. So the plaintiff's case survives the motion and the "serious injury" issue can go to a Brooklyn jury to decide.

The problem: we have no idea what evidence either side put in to support its position. So there is no lesson to be learned here, no guidance to be discerned. Rather a useless appeals court decision for those of us that want to learn from these decisions and follow the appellate judges= thinking so we, too, can defeat these defense motions.

**********************************************

RELATED POSTS:

ACCIDENT VICTIM'S DEFAULT FORGIVEN, SHE DEFEATS DEFENSE MOTION SEEKING SUMMARY JUDGMENT ON NO-FAULT "SERIOUS INJURY" THRESHOLD (Posted by Brooklyn injury attorney Gary E. Rosenberg on Oct 5, 2011)

DEFENSE LOSES NO-FAULT SERIOUS INJURY THRESHOLD SUMMARY JUDGMENT MOTION WHERE ITS EXAMINING DOCTOR DIDN'T MEASURE ACCIDENT VICTIM'S (Posted by Brooklyn injury attorney Gary Rosenberg on Jul 30, 2010)

NO SUMMARY JUDGMENT TO DEFENSE ON NO-FAULT "SERIOUS INJURY" THRESHOLD MOTION; CAR ACCIDENT VICTIM HAD KNEE SURGERY 4 MONTHS POST-ACCIDENT (Posted by Brooklyn injury attorney Gary E. Rosenberg on Oct 7, 2011)

********************************************************

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Velasquez, J.), dated June 3, 2010, which granted the separate motions of the defendants Jimmie Irizarri and New York City Transit Authority, and the defendants Josephine Pantano and Nunzio Pantano, for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that she did not sustain a serious injury within the meaning of Insurance Law Sec. 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendants' motions for summary judgment are denied.

The defendants met their prima facie burdens of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law ' 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The plaintiff alleged, inter alia, that she sustained certain injuries to the cervical and lumbosacral regions of her spine as a result of the subject accident. The defendants provided, inter alia, competent medical evidence establishing, prima facie, that those alleged injuries did not constitute serious injuries within the meaning of Insurance Law Sec. 5102(d) (see Rodriguez v. Huerfano, 46 A.D.3d 794, 795, 849 N.Y.S.2d 275).

However, in opposition, the plaintiff provided competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the cervical and lumbosacral regions of her spine constituted serious injuries within the meaning of Insurance Law ' 5102(d) (see Dixon v. Fuller, 79 A.D.3d 1094, 1094-1095, 913 N.Y.S.2d 776). Accordingly, the Supreme Court should have denied the defendants' motions for summary judgment.

Categories