GONYOU, CRYSTAL M. v. MCLAUGHLIN, ROBERTA D.

82 A.D.3d 1626, 918 N.Y.2d 922

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 25, 2011
• Docket: CA 10-01700
• Status: Published

Opinion

Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Crystal M. Gonyou (plaintiff) while she was operating a vehicle that was involved in a multivehicle accident. Supreme Court erred in granting the motions of Justin M. Sanmartín and Robert F. Novak (defendants) seeking sum mary judgment dismissing the complaint against them. “On a motion for summary judgment dismissing a complaint that alleges serious injury under Insurance Law § 5102 (d), the defendant bears the initial burden of establishing by competent medical evidence that [the] plaintiff did not sustain a serious injury caused by the accident” (Howard v Espinosa, 70 AD3d 1091, 1091-1092 [2010] [internal quotation marks omitted]). Here, defendants failed to meet that burden inasmuch as, by their own submissions in support of their motions, they raised triable issues of fact whether plaintiff sustained a serious injury within the meaning of the statute (see Phoung Le Nguyen v Wilson, 8 AD3d 1036 [2004]). Because defendants failed to meet their initial burden, we do not consider the sufficiency of plaintiffs’ opposing papers (see Swartz v Kalson, 78 AD3d 1553, 1554 [2010]). We note, however, that the court in its order determined that plaintiffs’ cross motion was moot in light of the dismissal of the complaint against defendants. Because we are reinstating the complaint against defendants, we remit the matter to Supreme Court to determine plaintiffs’ cross motion. Present — Scudder, RJ., Fahey, Garni, Green and Gorski, JJ.