Morban v. Nunez

11 A.D.3d 363, 783 N.Y.S.2d 554, 2004 N.Y. App. Div. LEXIS 12360

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 2004
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about May 16, 2003, which granted defendant’s motion for summary judgment dismissing the complaint, and denied plaintiffs motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, defendant’s motion denied, plaintiffs complaint reinstated, plaintiffs motion for partial summary judgment on the issue of liability granted as to the issue of fault, and the matter remanded for farther proceedings.

Plaintiff was allegedly injured on September 3, 1999 when his car was rear-ended by defendant’s vehicle. The defendant moved for summary judgment and the dismissal of the complaint on the ground that plaintiff did not suffer a serious physical injury within the meaning of Insurance Law § 5102 (d). The court improperly granted defendant’s motion as plaintiffs submissions in opposition to the motion raised a triable issue of fact as to whether plaintiff suffered a serious physical injuiy. Furthermore, plaintiffs unopposed motion for partial summary judgment on the issue of liability should have been granted (see Mullen v Rigor, 8 AD3d 104 [2004]; Mitchell v Gonzalez, 269 AD2d 250 [2000]). Concur—Nardelli, J.P., Andrias, Ellerin, Gonzalez and Catterson, JJ.