Meyers v. Dowd

277 A.D.2d 207, 715 N.Y.S.2d 643, 2000 N.Y. App. Div. LEXIS 11461

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 6, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Davis, J.), entered December 2, 1999, which granted the defendant’s motion to dismiss the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and denied her cross motion for summary judgment on the issue of liability.

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

The Supreme Court improperly granted the defendant’s motion for summary judgment on the issue of whether the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d). The defendant failed to meet her initial burden of establishing her entitlement to judgment as a matter of law (see, Chaplin v Taylor, 273 AD2d 188; Mariaca-Olmos v Mizrhy, 226 AD2d 437; Flanagan v Hoeg, 212 AD2d 756).

We reject the plaintiff’s contention that she was entitled to summary judgment on the issue of liability, as there is an issue of fact as to which party was at fault in the happening of the accident. Ritter, J. P., Thompson, Friedmann, H. Miller and Feuerstein, JJ., concur.