Rotino v. Andry

Appellate Division of the Supreme Court of New York

Rotino v. Andry

187 A.D.2d 1042, 591 N.Y.S.2d 102, 1992 N.Y. App. Div. LEXIS 14149

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

DecidedNovember 18, 1992

StatusPublished

Cited by1 cases

This text of 187 A.D.2d 1042 (Rotino v. Andry) 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

Rotino v. Andry, 187 A.D.2d 1042, 591 N.Y.S.2d 102, 1992 N.Y. App. Div. LEXIS 14149 (N.Y. Ct. App. 1992).

Pincite

Opinion

Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendants’ motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The affidavit of defendants’ counsel, to the extent it purports to tender expert medical evidence, lacks probative value on the issue whether plaintiff sustained a serious injury (see, Zoldas v Louise Cab Corp., 108 AD2d 378). Similarly lacking probative value on that issue is the affidavit and deposition testimony of defendant, Mark Andry, that immediately after the accident, he saw no blood on plaintiff’s person and she did not complain of pain. Thus, defendants failed to meet their initial burden of demonstrating their entitlement to judgment in their favor as a matter of law by the submission of evidentiary proof in admissible form. Plaintiff, therefore, had no burden to go forward and submit evidence "to establish a prima facie case that she sustained a serious injury within the meaning of Insurance Law § 5102” (DeAngelo v Fidel Corp. Servs., 171 AD2d 588; see, Logan v Laidlaw School Tr., 175 AD2d 568, 569; Mulhauser v Wood, 107 AD2d 1019, appeal dismissed 65 NY2d 637). (Appeal from Order of Supreme Court, Erie County, Rath, Jr., J. — Summary Judgment.) Present — Boomer, J. P., Pine, Lawton, Boehm and Davis, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendants’ motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The affidavit of defendants’ counsel, to the extent it purports to tender expert medical evidence, lacks probative value on the issue whether plaintiff sustained a serious injury (see, Zoldas v Louise Cab Corp., 108 AD2d 378). Similarly lacking probative value on that issue is the affidavit and deposition testimony of defendant, Mark Andry, that immediately after the accident, he saw no blood on plaintiff’s person and she did not complain of pain. Thus, defendants failed to meet their initial burden of demonstrating their entitlement to judgment in their favor as a matter of law by the submission of evidentiary proof in admissible form. Plaintiff, therefore, had no burden to go forward and submit evidence "to establish a prima facie case that she sustained a serious injury within the meaning of Insurance Law § 5102” (DeAngelo v Fidel Corp. Servs., 171 AD2d 588; see, Logan v Laidlaw School Tr., 175 AD2d 568, 569; Mulhauser v Wood, 107 AD2d 1019, appeal dismissed 65 NY2d 637). (Appeal from Order of Supreme Court, Erie County, Rath, Jr., J. — Summary Judgment.) Present — Boomer, J. P., Pine, Lawton, Boehm and Davis, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

187 A.D.2d 1042, 591 N.Y.S.2d 102, 1992 N.Y. App. Div. LEXIS 14149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rotino-v-andry-nyappdiv-1992.

Opinion

Related

Cite This Page — Counsel Stack