Newberger v. Hirsch

49 A.D.3d 700, 853 N.Y.2d 635

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 18, 2008
• Status: Published

Opinion

The plaintiff Neith Newberger was operating a minivan in which her four minor children were passengers, when it was struck by a second motor vehicle, which allegedly was backing out of a driveway and onto the roadway of the Horace Harding Expressway in Queens. After the plaintiffs commenced the present action, the defendant Bobbi Hirsch moved for summary judgment dismissing the complaint on the ground that none of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d).

The medical evidence which the movant submitted in support of her motion failed to establish, prima facie, that Neith Newberger did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Tchjevskaia v Chase, 15 AD3d 389 [2005]). Notably, the affirmed medical report prepared by the movant’s orthopedic expert raised a triable issue of fact (see CPLR 3212 [b]) as to whether Neith Newberger sustained a “significant limitation of use of a body function or system” (Insurance Law § 5102 [d]). Under these circumstances, it is unnecessary to consider the sufficiency of the opposition papers submitted by Neith Newberger (see Tchjevskaia v Chase, 15 AD3d at 389).

However, the medical evidence which the movant submitted in support of her motion as it related to the other plaintiffs established, prima facie, that none of those plaintiffs sustained a serious injury within the statutory definition (see Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition, those plaintiffs failed to raise a triable issue of fact. Lifson, J.P., Ritter, Florio and Garni, JJ., concur.