Bess v. Bruno

Appellate Division of the Supreme Court of New York

Bess v. Bruno

127 A.D.3d 797, 6 N.Y.S.3d 587

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 8, 2015

Docket2014-04874

StatusPublished

This text of 127 A.D.3d 797 (Bess v. Bruno) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bess v. Bruno, 127 A.D.3d 797, 6 N.Y.S.3d 587 (N.Y. Ct. App. 2015).

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Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Nahman, J.), entered April 22, 2014, which granted the motion of the defendant James D. Bruno and the separate motion of the defendants Devendrá Hulasie and Moonsammy Munasami for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident.

Ordered that the order is reversed, on the law, with one bill of costs payable by the defendants appearing separately and filing separate briefs, and the motion of the defendant James D. Bruno and the separate motion of the defendants Devendrá Hulasie and Moonsammy Munasami for summary judgment dismissing the complaint insofar as asserted against each of them are denied.

*798 The defendants, moving separately but relying on the same evidence and arguments, failed to meet their prima facie burdens of showing 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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The papers submitted by the defendants failed to adequately address the plaintiffs claim, set forth in the bill of particulars, that she sustained a serious injury under the 90/ 180-day category of Insurance Law § 5102 (d) (see Che Hong Kim v Kossoff, 90 AD3d 969 [2011]).

Since the defendants did not sustain their prima facie burdens, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see id.). Therefore, the Supreme Court should have denied the defendants’ separate motions for summary judgment dismissing the complaint insofar as asserted each of them.

Skelos, J.P., Sgroi, Maltese and Duffy, JJ., concur.

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Nahman, J.), entered April 22, 2014, which granted the motion of the defendant James D. Bruno and the separate motion of the defendants Devendrá Hulasie and Moonsammy Munasami for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident.

Ordered that the order is reversed, on the law, with one bill of costs payable by the defendants appearing separately and filing separate briefs, and the motion of the defendant James D. Bruno and the separate motion of the defendants Devendrá Hulasie and Moonsammy Munasami for summary judgment dismissing the complaint insofar as asserted against each of them are denied.

*798 The defendants, moving separately but relying on the same evidence and arguments, failed to meet their prima facie burdens of showing 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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The papers submitted by the defendants failed to adequately address the plaintiffs claim, set forth in the bill of particulars, that she sustained a serious injury under the 90/ 180-day category of Insurance Law § 5102 (d) (see Che Hong Kim v Kossoff, 90 AD3d 969 [2011]).

Since the defendants did not sustain their prima facie burdens, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see id.). Therefore, the Supreme Court should have denied the defendants’ separate motions for summary judgment dismissing the complaint insofar as asserted each of them.

Skelos, J.P., Sgroi, Maltese and Duffy, JJ., concur.

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Bluebook (online)

127 A.D.3d 797, 6 N.Y.S.3d 587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bess-v-bruno-nyappdiv-2015.

Opinion

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