ACCIDENT VICTIM WINS "SERIOUS INJURY" MOTION; YET AGAIN, LITTLE CLUE WHY

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

Case: Kelly v. Ghee

Date: Sept. 20, 2011

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

Comment: My third No-Fault "serious injury" defense summary judgment dismissal motion arising from an auto or car accident case in three days! Again, an unsatisfying decision. Plaintiff/accident-victim wins, because the defense did not meet its prima facie (initial) burden as the party bringing the motion. It seems that the defense failed in two different ways. First, because it didn't show that the plaintiff's injury was a "serious injury" and, second, it didn't show that the injury wasn't accident-related.

The curious lawyer might want to know how the defense paperwork was deficient. Ah, once again Dear Readers, this case gives not a clue.

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RELATED POSTS:

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

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

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In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Wood, J.), dated August 5, 2010, which, in effect, granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Kevin P. Kelly 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' motion for summary judgment dismissing the complaint is denied.

The defendants failed to meet their prima facie burden of showing that the injured 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 plaintiffs alleged, inter alia, that as a result of the subject accident, the injured plaintiff sustained certain injuries to the cervical region of his spine. However, the defendants failed to provide 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 Torres v. Torrano, 79 A.D.3d 1124, 912 N.Y.S.2d 912; Connors v. Flaherty, 32 A.D.3d 891, 893, 822 N.Y.S.2d 555). Furthermore, although the defendants contended that those alleged injuries were not caused by the subject accident (see Pommells v. Perez, 4 N.Y.3d 566, 579, 797 N.Y.S.2d 380, 830 N.E.2d 278), the defendants' evidentiary submissions actually demonstrated the existence of a triable issue of fact as to whether those alleged injuries were caused by the subject accident (see Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).

Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (id.).

Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.

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