DeFreese v. Ryan Sanitation Corp.

125 A.D.2d 289, 508 N.Y.S.2d 575, 1986 N.Y. App. Div. LEXIS 62551

Opinion

— In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Orange County (Ruskin, J.), dated September 4, 1985, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiffs had failed to meet the threshold requirements for serious injury pursuant to Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, the motion is denied and the complaint is reinstated.

The defendants have failed to meet their initial burden of establishing as a matter of law that the plaintiff did not suffer serious injury as defined in Insurance Law § 5102 (d) (see, Licari v Elliott, 57 NY2d 230; Zoldas v Louise Cab Corp., 108 AD2d 378, 381; De Filippo v White, 101 AD2d 801). We reject the defendants’ contention that the deposition of plaintiff Joyce DeFreese constituted an admission that she failed to sustain serious injury. As the defendants failed to submit any other evidentiary support for their motion, Special Term improperly granted summary judgment. Moreover, the medical report submitted by the plaintiffs in opposition to the defendants’ motion sufficiently raised a triable issue concerning serious injury (see, Mooney v Ovitt, 100 AD2d 702; cf. Dwyer v Tracey, 105 AD2d 476; De Filippo v White, supra). Thompson, J. P., Niehoff, Rubin and Eiber, JJ., concur.