Ricca v. Brem

148 A.D.2d 690, 540 N.Y.S.2d 205, 1989 N.Y. App. Div. LEXIS 4237

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 27, 1989
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Wager, J.), dated September 29, 1987, which denied his motion to vacate an order of the same court, dated February 11, 1987, entered upon his default, which granted the defendant Brem’s motion for summary judgment dismissing the complaint and all cross claims asserted against him.

Ordered that the order is reversed, on the law, with costs, the motion to vacate is granted, the motion for summary judgment is denied, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

Contrary to the conclusions of the Supreme Court, we find that the plaintiff sufficiently demonstrated that his failure to oppose the respondent’s prior motion for summary judgment was inadvertent and excusable. We further find that the medical exhibits submitted by the plaintiff do raise a triable issue of fact as to whether he sustained "serious injury” within the meaning of Insurance Law § 5102 (d) (see, Ottavio v Moore, 141 AD2d 806; Bassett v Romano, 126 AD2d 693; DeFreese v Ryan Sanitation Corp., 125 AD2d 289; Mooney v Ovitt, 100 AD2d 702). Accordingly, the order which granted the defendant Brem’s motion for summary judgment is vacated and the matter is remitted to the Supreme Court, Nassau County, for further proceedings. Brown, J. P., Eiber, Kooper and Balletta, JJ., concur.