Tagliarino v. Staab

Appellate Division of the Supreme Court of New York

Tagliarino v. Staab

140 A.D.3d 1053, 33 N.Y.S.3d 748

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

DecidedJune 22, 2016

Docket2015-03026

StatusPublished

This text of 140 A.D.3d 1053 (Tagliarino v. Staab) 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

Tagliarino v. Staab, 140 A.D.3d 1053, 33 N.Y.S.3d 748 (N.Y. Ct. App. 2016).

Pincite

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Asher, J.), entered February 4, 2015, which, upon an order of the same court dated January 5, 2015, granting the defendants’ motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident, is in favor of the defendants and against him dismissing the complaint.

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

The defendants failed to meet their prima facie burden of showing 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]). The papers submitted by the defendants failed to adequately address the plaintiff’s claim, set forth in his bill of particulars, that he sustained a medically determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Che Hong Kim v Kossoff, 90 AD3d 969 [2011]; Rouach v Betts, 71 AD3d 977 [2010]; cf. Calucci v Baker, 299 AD2d 897 [2002]). Moreover, one of the defendants’ experts found significant limitations in the range of motion of the plaintiff’s left thumb (see Mercado v Mendoza, 133 AD3d 833, 834 [2015]; Miller v Bratsilova, 118 AD3d 761 [2014]).

Since the defendants failed to meet their 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 at 969). Ac *1054 cordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint.

Balkin, J.P., Hall, Barros and Connolly, JJ., concur.

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

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Asher, J.), entered February 4, 2015, which, upon an order of the same court dated January 5, 2015, granting the defendants’ motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident, is in favor of the defendants and against him dismissing the complaint.

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

The defendants failed to meet their prima facie burden of showing 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]). The papers submitted by the defendants failed to adequately address the plaintiff’s claim, set forth in his bill of particulars, that he sustained a medically determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Che Hong Kim v Kossoff, 90 AD3d 969 [2011]; Rouach v Betts, 71 AD3d 977 [2010]; cf. Calucci v Baker, 299 AD2d 897 [2002]). Moreover, one of the defendants’ experts found significant limitations in the range of motion of the plaintiff’s left thumb (see Mercado v Mendoza, 133 AD3d 833, 834 [2015]; Miller v Bratsilova, 118 AD3d 761 [2014]).

Since the defendants failed to meet their 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 at 969). Ac *1054 cordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint.

Balkin, J.P., Hall, Barros and Connolly, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

140 A.D.3d 1053, 33 N.Y.S.3d 748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tagliarino-v-staab-nyappdiv-2016.

Opinion

Related

Cite This Page — Counsel Stack