Engelhardt v. Dominguez

Appellate Division of the Supreme Court of New York

Engelhardt v. Dominguez

298 A.D.2d 426, 748 N.Y.S.2d 388, 2002 N.Y. App. Div. LEXIS 9816

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

DecidedOctober 15, 2002

StatusPublished

This text of 298 A.D.2d 426 (Engelhardt v. Dominguez) 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

Engelhardt v. Dominguez, 298 A.D.2d 426, 748 N.Y.S.2d 388, 2002 N.Y. App. Div. LEXIS 9816 (N.Y. Ct. App. 2002).

Pincite

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (Raab, J.), dated July 23, 2001, which granted the defendants’ separate motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and (2) a judgment of the same court, entered August 22, 2001, which, upon the or[427]*427der, dismissed the complaint. The notice of appeal from the order dated July 23, 2001, is deemed to be a notice of appeal from the judgment (see CPLR 5501 [c]).

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is reversed, on the law, the order is vacated, the motions are denied, and the complaint is reinstated; and it is further,

Ordered that one bill of costs is awarded to the appellants.

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 the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

In support of their motions for summary judgment dismissing the complaint, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). However, the plaintiffs’ opposition papers were sufficient to raise a triable issue of fact (see Toure v Avis Rent A Car Sys., 98 NY2d 345). S. Miller, J.P., Crane, Cozier and Rivera, JJ., concur.

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In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (Raab, J.), dated July 23, 2001, which granted the defendants’ separate motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and (2) a judgment of the same court, entered August 22, 2001, which, upon the or[427]*427der, dismissed the complaint. The notice of appeal from the order dated July 23, 2001, is deemed to be a notice of appeal from the judgment (see CPLR 5501 [c]).

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is reversed, on the law, the order is vacated, the motions are denied, and the complaint is reinstated; and it is further,

Ordered that one bill of costs is awarded to the appellants.

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 the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

In support of their motions for summary judgment dismissing the complaint, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). However, the plaintiffs’ opposition papers were sufficient to raise a triable issue of fact (see Toure v Avis Rent A Car Sys., 98 NY2d 345). S. Miller, J.P., Crane, Cozier and Rivera, JJ., concur.

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Bluebook (online)

298 A.D.2d 426, 748 N.Y.S.2d 388, 2002 N.Y. App. Div. LEXIS 9816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/engelhardt-v-dominguez-nyappdiv-2002.

Opinion

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