CAR ACCIDENT VICTIM LOSES DEFENSE THRESHOLD NO-FAULT SUMMARY JUDGMENT MOTION BECAUSE PLAINTIFF'S AFFIDAVIT NOT ENOUGH

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

Case: Miracle Armand v. Mota Raman

Date: June 12, 2012

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

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Order, Supreme Court, Bronx County (Kibbie F. Payne, J.), entered June 24, 2011, which, in an action alleging serious injuries within the meaning of Insurance Law Sec. 5102(d), denied plaintiff‑appellant's motion to vacate an order granting, upon plaintiffs' default, defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants correctly served their notice of motion for summary judgment upon plaintiff's former counsel, which continued as her attorney of record, given that plaintiff failed to change counsel in the manner prescribed by CPLR 321(b)(1) (see Vitale v. City Constr. Mgt. Co., 172 A.D.2d 326 [1991]; see also Splinters, Inc. v. Greenfield, 63 A.D.3d 717, 719 [2009]). In any event, even if plaintiff provided a reasonable excuse for her default, she failed to demonstrate that her action has merit (see Carroll v. Nostra Realty Corp., 54 A.D.3d 623 [2008], lv denied 12 N.Y.3d 792 [2009]; see also Vargas v. Ahmed, 41 A.D.3d 328, 329 [2007]). Indeed, her affidavit asserting the existence of bulging or herniated discs is not, in and of itself, "evidence of serious injury without competent objective evidence of the limitations and duration of the disc injury" (Rubencamp v. Arrow Exterminating Co., Inc., 79 A.D.3d 509, 510 [2010]).

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