DeMarchi v. Martinez

Appellate Division of the Supreme Court of New York

DeMarchi v. Martinez

224 A.D.2d 651, 638 N.Y.S.2d 914, 1996 N.Y. App. Div. LEXIS 1924

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

DecidedFebruary 26, 1996

StatusPublished

Cited by2 cases

This text of 224 A.D.2d 651 (DeMarchi v. Martinez) 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

DeMarchi v. Martinez, 224 A.D.2d 651, 638 N.Y.S.2d 914, 1996 N.Y. App. Div. LEXIS 1924 (N.Y. Ct. App. 1996).

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Opinion

—In a negligence action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Putnam County (Hickman, J.), dated January 11, 1995, as granted that branch of the plaintiff’s motion which was for summary judgment on the ground that he had sustained a serious injury as defined by Insurance Law § 5102 (d).

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff’s motion which was for summary judgment on the ground that he had sustained a serious injury as defined by Insurance Law § 5102 (d) is denied.

Contrary to the Supreme Court’s determination, the plaintiff failed to establish, as a matter of law, that he had suffered a "significant limitation of use of a body function or system” (Insurance Law § 5102 [d]). We further conclude that the evidence submitted by the defendants raised a triable issue of fact (see, CPLR 3212 [b]) as to whether the plaintiff’s inability to perform his usual job duties for "not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury” (Insurance Law § 5102 [d]) resulted entirely from [652]*652an earlier on-the-job accident which occurred on November 5, 1992. Bracken, J. P., Miller, Joy, Hart and Krausman, JJ., concur.

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—In a negligence action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Putnam County (Hickman, J.), dated January 11, 1995, as granted that branch of the plaintiff’s motion which was for summary judgment on the ground that he had sustained a serious injury as defined by Insurance Law § 5102 (d).

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff’s motion which was for summary judgment on the ground that he had sustained a serious injury as defined by Insurance Law § 5102 (d) is denied.

Contrary to the Supreme Court’s determination, the plaintiff failed to establish, as a matter of law, that he had suffered a "significant limitation of use of a body function or system” (Insurance Law § 5102 [d]). We further conclude that the evidence submitted by the defendants raised a triable issue of fact (see, CPLR 3212 [b]) as to whether the plaintiff’s inability to perform his usual job duties for "not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury” (Insurance Law § 5102 [d]) resulted entirely from [652]*652an earlier on-the-job accident which occurred on November 5, 1992. Bracken, J. P., Miller, Joy, Hart and Krausman, JJ., concur.

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Bluebook (online)

224 A.D.2d 651, 638 N.Y.S.2d 914, 1996 N.Y. App. Div. LEXIS 1924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/demarchi-v-martinez-nyappdiv-1996.

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