Moore v. Raza

Appellate Division of the Supreme Court of New York

Moore v. Raza

4 A.D.3d 843, 771 N.Y.S.2d 761, 2004 N.Y. App. Div. LEXIS 1439

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

DecidedFebruary 11, 2004

StatusPublished

Cited by2 cases

This text of 4 A.D.3d 843 (Moore v. Raza) 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

Moore v. Raza, 4 A.D.3d 843, 771 N.Y.S.2d 761, 2004 N.Y. App. Div. LEXIS 1439 (N.Y. Ct. App. 2004).

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Opinion

Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), entered November 19, 2002. The order denied defendant’s motion for summary judgment dismissing the complaint in a personal injury action.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and dismissing the claim under the per[844]*844manent loss of use of a body organ, member, function or system category of serious injury within the meaning of Insurance Law § 5102 (d) and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for allegedly serious injuries she sustained when the vehicle she was driving was struck by a vehicle driven by defendant. Supreme Court denied defendant’s motion for summary judgment dismissing the complaint, which was made on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see generally Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). We agree with the court that plaintiff raised triable issues of fact with respect to the categories of serious injury asserted in her bill of particulars, with the exception of the permanent loss of use category. Defendant submitted proof that plaintiff suffered no injury whatsoever as a result of the accident, and plaintiff failed to raise an issue of fact whether her alleged “permanent loss of use of a body organ, member, function or system” (Insurance Law § 5102 [d]) was total; rather, plaintiffs submissions establish only a limitation of use (see Oberly v Bangs Ambulance, 96 NY2d 295, 299 [2001]). Therefore, we modify the order by granting the motion in part and dismissing plaintiffs claim under the permanent loss of use category. Present—Pigott, Jr., PJ., Green, Hurlbutt, Gorski and Lawton, JJ.

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Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), entered November 19, 2002. The order denied defendant’s motion for summary judgment dismissing the complaint in a personal injury action.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and dismissing the claim under the per[844]*844manent loss of use of a body organ, member, function or system category of serious injury within the meaning of Insurance Law § 5102 (d) and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for allegedly serious injuries she sustained when the vehicle she was driving was struck by a vehicle driven by defendant. Supreme Court denied defendant’s motion for summary judgment dismissing the complaint, which was made on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see generally Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). We agree with the court that plaintiff raised triable issues of fact with respect to the categories of serious injury asserted in her bill of particulars, with the exception of the permanent loss of use category. Defendant submitted proof that plaintiff suffered no injury whatsoever as a result of the accident, and plaintiff failed to raise an issue of fact whether her alleged “permanent loss of use of a body organ, member, function or system” (Insurance Law § 5102 [d]) was total; rather, plaintiffs submissions establish only a limitation of use (see Oberly v Bangs Ambulance, 96 NY2d 295, 299 [2001]). Therefore, we modify the order by granting the motion in part and dismissing plaintiffs claim under the permanent loss of use category. Present—Pigott, Jr., PJ., Green, Hurlbutt, Gorski and Lawton, JJ.

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Bluebook (online)

4 A.D.3d 843, 771 N.Y.S.2d 761, 2004 N.Y. App. Div. LEXIS 1439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-raza-nyappdiv-2004.

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