Manns v. Vaz

Appellate Division of the Supreme Court of New York

Manns v. Vaz

18 A.D.3d 827, 796 N.Y.S.2d 387

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

DecidedMay 31, 2005

StatusPublished

This text of 18 A.D.3d 827 (Manns v. Vaz) 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

Manns v. Vaz, 18 A.D.3d 827, 796 N.Y.S.2d 387 (N.Y. Ct. App. 2005).

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Opinion

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated March 15, 2004, as granted the defendant’s cross motion for [828]*828summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is denied, and the complaint is reinstated.

When a defendant fails to establish a prima facie case, it is unnecessary to consider whether the plaintiff’s papers in opposition to the defendant’s motion were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Carp., 283 AD2d 538 [2001]; Chaplin v Taylor, 273 AD2d 188 [2000]; Mariaca-Olmos v Mizrhy, 226 AD2d 437 [1996]). In this case, the defendant’s expert performed an orthopedic examination of the plaintiff. However, the expert expressly refused to conduct an examination of the plaintiff’s claimed temporal mandibular joint dysfunction and ear, nose, and throat injuries. The defendant did not offer any other expert evidence with respect to those injuries. Since the defendant failed to establish a prima facie case, his cross motion for summary judgment should have been denied. H. Miller, J.P., S. Miller, Goldstein, Mastro and Lifson, JJ., concur.

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In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated March 15, 2004, as granted the defendant’s cross motion for [828]*828summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is denied, and the complaint is reinstated.

When a defendant fails to establish a prima facie case, it is unnecessary to consider whether the plaintiff’s papers in opposition to the defendant’s motion were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Carp., 283 AD2d 538 [2001]; Chaplin v Taylor, 273 AD2d 188 [2000]; Mariaca-Olmos v Mizrhy, 226 AD2d 437 [1996]). In this case, the defendant’s expert performed an orthopedic examination of the plaintiff. However, the expert expressly refused to conduct an examination of the plaintiff’s claimed temporal mandibular joint dysfunction and ear, nose, and throat injuries. The defendant did not offer any other expert evidence with respect to those injuries. Since the defendant failed to establish a prima facie case, his cross motion for summary judgment should have been denied. H. Miller, J.P., S. Miller, Goldstein, Mastro and Lifson, JJ., concur.

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Bluebook (online)

18 A.D.3d 827, 796 N.Y.S.2d 387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manns-v-vaz-nyappdiv-2005.

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