Clarke v. First Student, Inc.

Appellate Division of the Supreme Court of New York

Clarke v. First Student, Inc.

122 A.D.3d 662, 996 N.Y.S.2d 183

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

DecidedNovember 12, 2014

Docket2014-02808

StatusPublished

This text of 122 A.D.3d 662 (Clarke v. First Student, Inc.) 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

Clarke v. First Student, Inc., 122 A.D.3d 662, 996 N.Y.S.2d 183 (N.Y. Ct. App. 2014).

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Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an *663 order of the Supreme Court, Nassau County (Palmieri, J.), entered January 24, 2014, as granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff Basil Clarke 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 the defendants’ motion for summary judgment dismissing the complaint is denied.

The defendants failed to meet their prima facie burden of showing that the plaintiff Basil Clarke 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’ claims, set forth in the bill of particulars, that Basil Clarke sustained serious injuries to the cervical and lumbar regions of his spine and to his right shoulder under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102 (d) (see generally Staff v Yshua, 59 AD3d 614 [2009]), and 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 burden, it is unnecessary to determine whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see id.).

Therefore, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint.

Skelos, J.P., Leventhal, Hinds-Radix, Duffy and LaSalle, JJ., concur.

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In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an *663 order of the Supreme Court, Nassau County (Palmieri, J.), entered January 24, 2014, as granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff Basil Clarke 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 the defendants’ motion for summary judgment dismissing the complaint is denied.

The defendants failed to meet their prima facie burden of showing that the plaintiff Basil Clarke 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’ claims, set forth in the bill of particulars, that Basil Clarke sustained serious injuries to the cervical and lumbar regions of his spine and to his right shoulder under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102 (d) (see generally Staff v Yshua, 59 AD3d 614 [2009]), and 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 burden, it is unnecessary to determine whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see id.).

Therefore, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint.

Skelos, J.P., Leventhal, Hinds-Radix, Duffy and LaSalle, JJ., concur.

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Bluebook (online)

122 A.D.3d 662, 996 N.Y.S.2d 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clarke-v-first-student-inc-nyappdiv-2014.

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