Cervantes v. McDermott

Appellate Division of the Supreme Court of New York

Cervantes v. McDermott

2017 NY Slip Op 5804, 152 A.D.3d 739, 60 N.Y.S.3d 195

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

DecidedJuly 26, 2017

Docket2015-02885

StatusPublished

Cited by1 cases

This text of 2017 NY Slip Op 5804 (Cervantes v. McDermott) 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

Cervantes v. McDermott, 2017 NY Slip Op 5804, 152 A.D.3d 739, 60 N.Y.S.3d 195 (N.Y. Ct. App. 2017).

Pincite

Opinion

In an action to recover damages for personal injuries, etc., the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Marber, J.), dated January *740 15, 2015, as granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint on the ground that the plaintiffs infant 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 insofar as appealed from, on the law, with costs, and that branch of the defendants’ motion which was for summary judgment dismissing the complaint on the ground that the plaintiff’s infant did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident is denied.

The defendants failed to meet their prima facie burden of showing that the plaintiff’s infant did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Joseph v Hampton, 48 AD3d 638, 638-639 [2008]; see generally Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendants failed to adequately address the plaintiff’s claims, set forth in the bills of particulars, that the infant sustained a serious injury to the cervical region of his spine under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102 (d) (see Robinson v Lawrence, 99 AD3d 980, 980 [2012]; Joseph v Hampton, 48 AD3d at 638-639).

Since the defendants did not sustain their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Che Hong Kim v Kossoff, 90 AD3d 969, 969 [2011]). Therefore, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint on the ground that the infant did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident.

The argument raised in Point III of the defendants’ brief is not properly before this Court.

Balkin, J.P., Sgroi, Cohen and Duffy, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action to recover damages for personal injuries, etc., the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Marber, J.), dated January *740 15, 2015, as granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint on the ground that the plaintiffs infant 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 insofar as appealed from, on the law, with costs, and that branch of the defendants’ motion which was for summary judgment dismissing the complaint on the ground that the plaintiff’s infant did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident is denied.

The defendants failed to meet their prima facie burden of showing that the plaintiff’s infant did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Joseph v Hampton, 48 AD3d 638, 638-639 [2008]; see generally Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendants failed to adequately address the plaintiff’s claims, set forth in the bills of particulars, that the infant sustained a serious injury to the cervical region of his spine under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102 (d) (see Robinson v Lawrence, 99 AD3d 980, 980 [2012]; Joseph v Hampton, 48 AD3d at 638-639).

Since the defendants did not sustain their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Che Hong Kim v Kossoff, 90 AD3d 969, 969 [2011]). Therefore, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint on the ground that the infant did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident.

The argument raised in Point III of the defendants’ brief is not properly before this Court.

Balkin, J.P., Sgroi, Cohen and Duffy, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

2017 NY Slip Op 5804, 152 A.D.3d 739, 60 N.Y.S.3d 195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cervantes-v-mcdermott-nyappdiv-2017.

Opinion

Related

Cite This Page — Counsel Stack