Bethea v. Pacheco Auto Collision

207 A.D.2d 424, 616 N.Y.S.2d 224, 1994 N.Y. App. Div. LEXIS 8307

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 15, 1994
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Suffolk County (Seidell, J.), dated December 14, 1992, which granted the defendants’ motions for summary judgment, (2) from a judgment of the same court, entered February 9, 1993, which dismissed the complaint, and (3) as limited by her brief, from so much of an order of the same court dated April 7, 1993, as, upon reargument, adhered to its original determination.

Ordered that the appeal from the order dated December 14, 1992, is dismissed; and it is further,

Ordered that the appeal from the judgment entered February 9, 1993, is dismissed, as that judgment was superseded by the order dated April 7, 1993, made upon reargument; and it is further,

Ordered that the order dated April 7, 1993, is reversed insofar as appealed from, on the law, the order dated December 14, 1992, and the judgment are vacated, the defendants’ motions for summary judgment are denied, and the complaint is reinstated; and it is further,

Ordered that the plaintiff is awarded one bill of costs, payable by the respondents appearing separately and filing separate briefs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from that order are brought up for review and have been considered on the appeal from the order made upon reargument (CPLR 5501 [a] [1]).

The plaintiff allegedly suffers from spondylolysis, which, upon reargument, the plaintiff’s chiropractor characterized as a fracture. Thus, an issue of fact exists as to whether the plaintiff suffered a "serious injury” within the meaning of Insurance Law § 5102 (d). Accordingly, the court erred in awarding summary judgment to the defendants (see, Insurance Law § 5104 [a]; Licari v Elliott, 57 NY2d 230). Sullivan, J. P., Lawrence, Pizzuto and Joy, JJ., concur.