ACCIDENT VICTIM'S DEFAULT FORGIVEN, SHE DEFEATS DEFENSE MOTION SEEKING SUMMARY JUDGMENT ON NO-FAULT "SERIOUS INJURY" THRESHOLD

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

Case:Chery v. Castello

Date: Aug. 2, 2011

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

Comment: Plaintiff/accident victim defeats summary judgment motion by defense on No-Fault "serious injury" threshold. Injured plaintiff defaulted when the motion was on and lost (on default). The plaintiff the went to the Court and asked to vacate her default and defeat the defense summary judgment motion, which the appellate court granted.

Interesting in this case is that it is useless as guidance for other accident victims that find themselves in similar circumstances. Why, you may ask? First, the appeals court forgives the plaintiff=s default in opposing the defense motion, but does not say what argument or excuse plaintiff offered for her default. Second, the appellate court held that plaintiff did suffer a "serious injury" and that her case could proceed to a jury, but the Court never said, (a) what her injury was, or, (b) how it satisfied the New York State No-Fault serious injury threshold requirement.

So, to repeat myself, this case is noteworthy for its utter uselessness. The point being that appellate decisions should be informative to other attorneys for accident victims (and, for that matter, to attorneys for defendants also) so they can improve their lawyering and know what the courts look for in accident and injury cases.

See my FREE book: WARNING! THINGS THAT CAN DESTROY YOUR CAR ACCIDENT CASE (And the Insurance Companies Already Know These Things)

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RELATED POSTS:

DEFENSE LOSES NO-FAULT SERIOUS INJURY THRESHOLD SUMMARY JUDGMENT MOTION WHERE ITS EXAMINING DOCTOR DIDN'T MEASURE ACCIDENT VICTIM'S (Posted by Brooklyn accident attorney Gary E. Rosenberg on July 30, 2011)

ANOTHER INJURED CAR ACCIDENT VICTIM DENIED HER DAY IN COURT DUE TO LEGAL TECHNICALITY (Posted by Brooklyn accident attorney Gary E. Rosenberg on September 3, 2010)

"SERIOUS INJURY" THRESHOLD MOTION NICELY DEFEATED IN CAR ACCIDENT CASE (Posted by Brooklyn accident attorney Gary E. Rosenberg on April 28, 2011)

NEW YORK'S "SERIOUS INJURY" REQUIREMENT--A RECENT CAR ACCIDENT CASE THAT THE JURY BLEW (Posted by Brooklyn accident attorney Gary E. Rosenberg on March 5, 2011 )

BRONX CAR ACCIDENT VICTIMS LOSE SUMMARY JUDGMENT ON NO-FAULT "SERIOUS INJURY" THRESHOLD (Posted by Brooklyn accident attorney Gary E. Rosenberg on June 21, 2011 )

SUMMARY JUDGMENT MOTION DENIED ON NO-FAULT THRESHOLD; BURDEN ON DEFENSE TO SHOW ACCIDENT VICTIM'S INJURIES WERE OLD (Posted by Brooklyn accident attorney Gary E. Rosenberg on June 17, 2011)

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In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Grays, J.), dated May 20, 2010, as denied that branch of her motion which was to vacate so much of a prior order of the same court dated October 29, 2009, as granted the unopposed motion of the defendant Ronnie Thornton for summary judgment dismissing the complaint insofar as asserted against her on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law Sec. 5102(d) and, thereupon, to deny that motion.

ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, that branch of the plaintiff's motion which was to vacate so much of the order dated October 29, 2009, as granted the motion of the defendant Ronnie Thornton for summary judgment dismissing the complaint insofar as asserted against her and, thereupon, to deny that motion, is granted, so much of that order as granted that motion is vacated, and that motion is denied.

The plaintiff demonstrated a reasonable excuse for her failure to oppose the motion of the defendant Ronnie Thornton for summary judgment dismissing the complaint insofar as asserted against her (see CPLR 5015[a][1]; Political Mktg., Int'l., Inc. v. Jaliman, 67 A.D.3d 661, 888 N.Y.S.2d 552; cf. Felder v. New York City Tr. Auth., 238 A.D.2d 543, 657 N.Y.S.2d 83; Krystofic v. Rapisardi, 112 A.D.2d 196, 196_197, 491 N.Y.S.2d 70). The plaintiff also established the existence of a triable issue of fact constituting a meritorious opposition to Thornton's motion (Political Mktg., Int'l., Inc. v. Jaliman, 67 A.D.3d at 662, 888 N.Y.S.2d 552; see CPLR 5015[a][1] ). The plaintiff provided competent medical evidence establishing that the alleged injuries to the lumbar region of her spine constituted a serious injury under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law ' 5102(d) (see Dixon v. Fuller, 79 A.D.3d 1094, 1094_1095, 913 N.Y.S.2d 776). She also provided a reasonable explanation for a cessation of medical treatment (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278; Abdelaziz v. Fazel, 78 A.D.3d 1086, 912 N.Y.S.2d 103).

Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was to vacate so much of the order dated October 29, 2009, as granted Thornton's motion for summary judgment, should have vacated so much of that order as granted Thornton's motion for summary judgment, and thereupon should have denied Thornton's motion (see Political Mktg., Int'l., Inc. v. Jaliman, 67 A.D.3d at 661, 888 N.Y.S.2d 552).

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