Rivera v. Losee

Appellate Division of the Supreme Court of New York

Rivera v. Losee

138 A.D.3d 713, 27 N.Y.S.3d 890

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

DecidedApril 6, 2016

Docket2015-06880

StatusPublished

Cited by2 cases

This text of 138 A.D.3d 713 (Rivera v. Losee) 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

Rivera v. Losee, 138 A.D.3d 713, 27 N.Y.S.3d 890 (N.Y. Ct. App. 2016).

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Opinion

In an action to recover damages for

personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Rouse, J.), dated May 1, 2015, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff 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 affirmed, with costs.

The defendant, whose expert found a significant limitation in the range of motion in the lumbar region of the plaintiff’s spine, failed to meet his prima facie burden of demonstrating that the 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]; Mercado v Mendoza, 133 AD3d 833, 834 [2015]; Miller v Bratsilova, 118 AD3d 761 [2014]).

Since the defendant failed to meet his prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Che Hong Kim v Kossoff, 90 AD3d 969 [2011]). Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint.

Balkin, J.P., Austin, Sgroi and LaSalle, JJ., concur.

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In an action to recover damages for

personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Rouse, J.), dated May 1, 2015, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff 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 affirmed, with costs.

The defendant, whose expert found a significant limitation in the range of motion in the lumbar region of the plaintiff’s spine, failed to meet his prima facie burden of demonstrating that the 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]; Mercado v Mendoza, 133 AD3d 833, 834 [2015]; Miller v Bratsilova, 118 AD3d 761 [2014]).

Since the defendant failed to meet his prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Che Hong Kim v Kossoff, 90 AD3d 969 [2011]). Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint.

Balkin, J.P., Austin, Sgroi and LaSalle, JJ., concur.

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Bluebook (online)

138 A.D.3d 713, 27 N.Y.S.3d 890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rivera-v-losee-nyappdiv-2016.

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