Montanez v. James

Appellate Division of the Supreme Court of New York

Montanez v. James

167 A.D.2d 218, 561 N.Y.S.2d 725, 1990 N.Y. App. Div. LEXIS 13567

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

DecidedNovember 15, 1990

StatusPublished

This text of 167 A.D.2d 218 (Montanez v. James) 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

Montanez v. James, 167 A.D.2d 218, 561 N.Y.S.2d 725, 1990 N.Y. App. Div. LEXIS 13567 (N.Y. Ct. App. 1990).

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Opinion

Order, Supreme Court New York County (Eugene Nardelli, J.), entered on or about September 19, 1989, which denied plaintiffs’ motion seeking to vacate a prior decision of the same court dated June 6, 1989, which granted defendant’s [219]*219motion pursuant to CPLR 3212 for summary judgment dismissing the complaint, unanimously affirmed, without costs and without disbursements.

Plaintiff Lydia Montanez, the natural mother of plaintiff Alice Ramos, her minor child, commenced the underlying action seeking to recover monetary damages for personal injuries allegedly sustained by plaintiff Ramos on July 10, 1981, at approximately 4:30 p.m., when, while crossing 103rd Street near Columbus Avenue in Manhattan, she was struck and knocked to the pavement by a vehicle driven by the defendant.

The IAS court did not err in refusing to vacate its prior decision dismissing the complaint based upon the court’s determination that plaintiff Ramos was, in fact, a "covered person” as defined by New York State Insurance Law § 5102 who had failed to establish a prima facie case that she had sustained a "serious injury” within the meaning of Insurance Law § 5104. Indeed, plaintiffs concede on appeal that plaintiff Ramos was, in fact, a pedestrian injured through the operation of an insured vehicle. Accordingly we find no issue of fact as to whether plaintiff was a "covered person” as defined by Insurance Law § 5102 (j).

Moreover, contrary to plaintiffs’ assertions, neither the verified complaint nor the verified bill of particulars establishes that plaintiff Ramos sustained a "serious injury” entailing a "significant limitation of use of a body function or system” as required to recover for personal injuries arising out of negligence in the use or operation of a motor vehicle under New York’s No-Fault Law (Insurance Law § 5102 [d]; § 5104 [a]; Scheer v Koubek, 70 NY2d 678, 679). Concur—Murphy, P. J., Milonas, Rosenberger and Asch, JJ.

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Order, Supreme Court New York County (Eugene Nardelli, J.), entered on or about September 19, 1989, which denied plaintiffs’ motion seeking to vacate a prior decision of the same court dated June 6, 1989, which granted defendant’s [219]*219motion pursuant to CPLR 3212 for summary judgment dismissing the complaint, unanimously affirmed, without costs and without disbursements.

Plaintiff Lydia Montanez, the natural mother of plaintiff Alice Ramos, her minor child, commenced the underlying action seeking to recover monetary damages for personal injuries allegedly sustained by plaintiff Ramos on July 10, 1981, at approximately 4:30 p.m., when, while crossing 103rd Street near Columbus Avenue in Manhattan, she was struck and knocked to the pavement by a vehicle driven by the defendant.

The IAS court did not err in refusing to vacate its prior decision dismissing the complaint based upon the court’s determination that plaintiff Ramos was, in fact, a "covered person” as defined by New York State Insurance Law § 5102 who had failed to establish a prima facie case that she had sustained a "serious injury” within the meaning of Insurance Law § 5104. Indeed, plaintiffs concede on appeal that plaintiff Ramos was, in fact, a pedestrian injured through the operation of an insured vehicle. Accordingly we find no issue of fact as to whether plaintiff was a "covered person” as defined by Insurance Law § 5102 (j).

Moreover, contrary to plaintiffs’ assertions, neither the verified complaint nor the verified bill of particulars establishes that plaintiff Ramos sustained a "serious injury” entailing a "significant limitation of use of a body function or system” as required to recover for personal injuries arising out of negligence in the use or operation of a motor vehicle under New York’s No-Fault Law (Insurance Law § 5102 [d]; § 5104 [a]; Scheer v Koubek, 70 NY2d 678, 679). Concur—Murphy, P. J., Milonas, Rosenberger and Asch, JJ.

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Bluebook (online)

167 A.D.2d 218, 561 N.Y.S.2d 725, 1990 N.Y. App. Div. LEXIS 13567, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montanez-v-james-nyappdiv-1990.

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