Marszalek v. Brown

Appellate Division of the Supreme Court of New York

Marszalek v. Brown

247 A.D.2d 827, 668 N.Y.S.2d 138, 1998 N.Y. App. Div. LEXIS 1118

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

DecidedFebruary 4, 1998

StatusPublished

Cited by4 cases

This text of 247 A.D.2d 827 (Marszalek v. Brown) 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

Marszalek v. Brown, 247 A.D.2d 827, 668 N.Y.S.2d 138, 1998 N.Y. App. Div. LEXIS 1118 (N.Y. Ct. App. 1998).

Pincite

Opinion

Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the motion of Will Poultry Co., Inc. (defendant), for summary judgment dismissing the complaint against it. Plaintiff was injured when her vehicle was struck by a truck operated by defendant Jeffrey S. Brown and owned by defendant. Defendant failed to present evidence establishing as a matter of law that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). Plaintiff, through an affidavit from one of her treating physicians, raised issues of fact whether she sustained a permanent consequential limitation of use of a body organ or member, or a significant limitation of use of a body function or system (see, Insurance Law § 5102 [d]). In addition, plaintiff established prima facie that she suffered from a medically determined injury that curtailed her from performing her usual activities “to a great extent rather than some slight curtailment” for the statutory period (Licari v Elliott, 57 NY2d 230, 236; see, Tankersley v Szesnat, 235 AD2d 1010, 1013; Gleissner v LoPresti, 135 AD2d 494, 495; cf., Shames v Murtha, 204 AD2d 841). (Appeal from Order of Supreme Court, Erie County, Mahoney, J. — Summary Judgment.)

Present — Green, J. P., Pine, Hayes, Callahan and Fallon, JJ.

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Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the motion of Will Poultry Co., Inc. (defendant), for summary judgment dismissing the complaint against it. Plaintiff was injured when her vehicle was struck by a truck operated by defendant Jeffrey S. Brown and owned by defendant. Defendant failed to present evidence establishing as a matter of law that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). Plaintiff, through an affidavit from one of her treating physicians, raised issues of fact whether she sustained a permanent consequential limitation of use of a body organ or member, or a significant limitation of use of a body function or system (see, Insurance Law § 5102 [d]). In addition, plaintiff established prima facie that she suffered from a medically determined injury that curtailed her from performing her usual activities “to a great extent rather than some slight curtailment” for the statutory period (Licari v Elliott, 57 NY2d 230, 236; see, Tankersley v Szesnat, 235 AD2d 1010, 1013; Gleissner v LoPresti, 135 AD2d 494, 495; cf., Shames v Murtha, 204 AD2d 841). (Appeal from Order of Supreme Court, Erie County, Mahoney, J. — Summary Judgment.)

Present — Green, J. P., Pine, Hayes, Callahan and Fallon, JJ.

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Bluebook (online)

247 A.D.2d 827, 668 N.Y.S.2d 138, 1998 N.Y. App. Div. LEXIS 1118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marszalek-v-brown-nyappdiv-1998.

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