Pendleton v. Bizzoco

Appellate Division of the Supreme Court of New York

Pendleton v. Bizzoco

2017 NY Slip Op 5745, 152 A.D.3d 711, 58 N.Y.S.3d 567

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

DecidedJuly 14, 2017

Docket2016-04207

StatusPublished

This text of 2017 NY Slip Op 5745 (Pendleton v. Bizzoco) 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

Pendleton v. Bizzoco, 2017 NY Slip Op 5745, 152 A.D.3d 711, 58 N.Y.S.3d 567 (N.Y. Ct. App. 2017).

Pincite

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Pagones, J.), dated March 18, 2016, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff Janet Pendleton did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident.

Ordered that the order is reversed, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is denied.

*712 The defendants met their prima facie burden of showing that the plaintiff Janet Pendleton (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendants submitted competent medical evidence establishing, prima facie, that the alleged injury to the injured plaintiffs brain did not constitute a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102 (d) (see Marshall v Marshall, 117 AD3d 805, 806 [2014]; Gellis v Singho, 92 AD3d 720 [2012]; Felix v Wildred, 54 AD3d 891 [2008]; Matthews v Cupie Transp. Corp., 302 AD2d 566, 567 [2003]), and that, in any event, the alleged injury was not caused by the subject accident (see generally Jilani v Palmer, 83 AD3d 786, 787 [2011]). In opposition, however, the plaintiffs raised triable issues of fact as to whether the injured plaintiff sustained a serious injury to her brain under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102 (d), and as to whether the alleged injury was caused by the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d at 353-355; Flanders v National Grange Mut. Ins. Co., 124 AD3d 1035, 1036-1038 [2015]; Gellis v Singho, 92 AD3d at 720; Jilani v Palmer, 83 AD3d at 787).

Accordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint.

Dillon, J.P., Cohen, Duffy and Connolly, JJ., concur.

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In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Pagones, J.), dated March 18, 2016, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff Janet Pendleton did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident.

Ordered that the order is reversed, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is denied.

*712 The defendants met their prima facie burden of showing that the plaintiff Janet Pendleton (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendants submitted competent medical evidence establishing, prima facie, that the alleged injury to the injured plaintiffs brain did not constitute a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102 (d) (see Marshall v Marshall, 117 AD3d 805, 806 [2014]; Gellis v Singho, 92 AD3d 720 [2012]; Felix v Wildred, 54 AD3d 891 [2008]; Matthews v Cupie Transp. Corp., 302 AD2d 566, 567 [2003]), and that, in any event, the alleged injury was not caused by the subject accident (see generally Jilani v Palmer, 83 AD3d 786, 787 [2011]). In opposition, however, the plaintiffs raised triable issues of fact as to whether the injured plaintiff sustained a serious injury to her brain under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102 (d), and as to whether the alleged injury was caused by the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d at 353-355; Flanders v National Grange Mut. Ins. Co., 124 AD3d 1035, 1036-1038 [2015]; Gellis v Singho, 92 AD3d at 720; Jilani v Palmer, 83 AD3d at 787).

Accordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint.

Dillon, J.P., Cohen, Duffy and Connolly, JJ., concur.

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Bluebook (online)

2017 NY Slip Op 5745, 152 A.D.3d 711, 58 N.Y.S.3d 567, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pendleton-v-bizzoco-nyappdiv-2017.

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