Lomnicki v. Briere

Appellate Division of the Supreme Court of New York

Lomnicki v. Briere

140 A.D.3d 1124, 33 N.Y.S.3d 765

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

DecidedJune 29, 2016

Docket2015-03419

StatusPublished

Cited by1 cases

This text of 140 A.D.3d 1124 (Lomnicki v. Briere) 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

Lomnicki v. Briere, 140 A.D.3d 1124, 33 N.Y.S.3d 765 (N.Y. Ct. App. 2016).

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Opinion

— In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated February 10, 2015, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident.

Ordered that the order is reversed, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is denied.

The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendants failed to show, prima facie, that the plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law § 5102 (d) (see Che Hong Kim v Kossoff, 90 AD3d 969 [2011]; Rouach v Betts, 71 AD3d 977 [2010]).

In light of the defendants’ failure to meet their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise *1125 a triable issue of fact (see Che Hong Kim v Kossoff, 90 AD3d at 969). Accordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint.

Mastro, J.P., Austin, Sgroi and Maltese, JJ., concur.

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— In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated February 10, 2015, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident.

Ordered that the order is reversed, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is denied.

The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendants failed to show, prima facie, that the plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law § 5102 (d) (see Che Hong Kim v Kossoff, 90 AD3d 969 [2011]; Rouach v Betts, 71 AD3d 977 [2010]).

In light of the defendants’ failure to meet their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise *1125 a triable issue of fact (see Che Hong Kim v Kossoff, 90 AD3d at 969). Accordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint.

Mastro, J.P., Austin, Sgroi and Maltese, JJ., concur.

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Bluebook (online)

140 A.D.3d 1124, 33 N.Y.S.3d 765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lomnicki-v-briere-nyappdiv-2016.

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