Incardona v. Seavers

Appellate Division of the Supreme Court of New York

Incardona v. Seavers

205 A.D.2d 735, 614 N.Y.S.2d 908, 1994 N.Y. App. Div. LEXIS 6616

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

DecidedJune 27, 1994

StatusPublished

This text of 205 A.D.2d 735 (Incardona v. Seavers) 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

Incardona v. Seavers, 205 A.D.2d 735, 614 N.Y.S.2d 908, 1994 N.Y. App. Div. LEXIS 6616 (N.Y. Ct. App. 1994).

Pincite

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Beisner, J.), entered October 13, 1992, which granted the defendant’s motion for summary judgment dismissing the complaint, and denied the plaintiffs’ cross motion for summary judgment in their favor.

Ordered that the order is modified, on the law, by deleting the provision thereof which granted the defendant’s motion for summary judgment dismissing the complaint, and substituting therefor a provision denying the motion; and as so modified, the order is affirmed, with costs to the plaintiffs.

The Supreme Court erred in finding that the plaintiffs’ medical evidence was insufficient to defeat the defendant’s motion for summary judgment (see, Cowley v Crocker, 186 AD2d 939; Pagano v Kingsbury, 182 AD2d 268). However, the court correctly denied the plaintiffs’ cross motion for summary judgment. The defendant submitted the affirmation of an examining physician to the effect that John Incardona’s injuries were only "mild” and therefore not "serious” within the meaning of Insurance Law § 5102 (d), thereby raising a triable issue of fact as to whether he sustained a "serious injury”. Mangano, P. J., Balletta, O’Brien, Hart and Florio, JJ., concur.

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In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Beisner, J.), entered October 13, 1992, which granted the defendant’s motion for summary judgment dismissing the complaint, and denied the plaintiffs’ cross motion for summary judgment in their favor.

Ordered that the order is modified, on the law, by deleting the provision thereof which granted the defendant’s motion for summary judgment dismissing the complaint, and substituting therefor a provision denying the motion; and as so modified, the order is affirmed, with costs to the plaintiffs.

The Supreme Court erred in finding that the plaintiffs’ medical evidence was insufficient to defeat the defendant’s motion for summary judgment (see, Cowley v Crocker, 186 AD2d 939; Pagano v Kingsbury, 182 AD2d 268). However, the court correctly denied the plaintiffs’ cross motion for summary judgment. The defendant submitted the affirmation of an examining physician to the effect that John Incardona’s injuries were only "mild” and therefore not "serious” within the meaning of Insurance Law § 5102 (d), thereby raising a triable issue of fact as to whether he sustained a "serious injury”. Mangano, P. J., Balletta, O’Brien, Hart and Florio, JJ., concur.

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Bluebook (online)

205 A.D.2d 735, 614 N.Y.S.2d 908, 1994 N.Y. App. Div. LEXIS 6616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/incardona-v-seavers-nyappdiv-1994.

Opinion

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