Watford v. Boolukos

5 A.D.3d 475, 772 N.Y.S.2d 566

Opinion

In an action to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Rockland County (Bergerman, J.), dated January 22, 2003, as denied that branch of her motion which was for summary judgment dismissing the claim to recover damages for economic loss in excess of basic economic loss within the meaning of Insurance Law § 5104.

Ordered that the order is reversed insofar as appealed from, with costs, that branch of the defendant’s motion which was for summary judgment dismissing the claim to recover damages for economic loss in excess of basic economic loss within the mean ing of Insurance Law § 5104 is granted, and the complaint is dismissed in its entirety.

Pursuant to Insurance Law § 5104 (a), a plaintiff seeking to recover damages for economic loss arising from a motor vehicle accident must plead and prove economic loss greater than basic economic loss (see CPLR 3016 [g]; Acerra v Gutmann, 294 AD2d 384 [2002]; Rulison v Zanella, 119 AD2d 957 [1986]). Here, the plaintiff failed to plead a claim for economic loss in the complaint, and neither amended nor sought leave to amend the complaint to add such a claim. Moreover, the plaintiff failed to produce any evidence in admissible form which supports such a claim. Santucci, J.P., Smith, Luciano and Adams, JJ., concur.