Waxman v. Village of Lake Success

Appellate Division of the Supreme Court of New York

Waxman v. Village of Lake Success

121 A.D.3d 972, 995 N.Y.S.2d 116

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

DecidedOctober 22, 2014

Docket2013-10975

StatusPublished

This text of 121 A.D.3d 972 (Waxman v. Village of Lake Success) 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

Waxman v. Village of Lake Success, 121 A.D.3d 972, 995 N.Y.S.2d 116 (N.Y. Ct. App. 2014).

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Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Galasso, J.), entered August 30, 2013, which granted the motion of the defendants Village of Lake Success and T.J. Fernandez and the separate motion of the defendant John Haight for summary judgment dismissing the complaint insofar *973 as asserted by the plaintiff Isa Waxman against each of them on the ground that the plaintiff Isa Waxman 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 reversed, on the law, with one bill of costs to the plaintiffs payable by the defendants appearing separately and filing separate briefs, and the motion of the defendants Village of Lake Success and T.J. Fernandez and the separate motion of the defendant John Haight for summary judgment dismissing the complaint insofar as asserted by the plaintiff Isa Waxman against each of them are denied.

In support of their respective motions for summary judgment dismissing the complaint insofar as asserted by the plaintiff Isa Waxman against them, the defendants failed to meet their respective prima facie burdens of showing that the plaintiff Isa Waxman 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 Isa Waxman’s claim, set forth in the bill of particulars, that he sustained a serious injury under the 90/180-day category of Insurance Law § 5102 (d) (see Che Hong Kim v Kossoff, 90 AD3d 969 [2011]).

Since the defendants did not sustain their respective prima facie burdens, it is unnecessary to determine whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see id.). Therefore, the Supreme Court should have denied the motions.

Mastro, J.E, Chambers, Cohen and Barros, JJ., concur.

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In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Galasso, J.), entered August 30, 2013, which granted the motion of the defendants Village of Lake Success and T.J. Fernandez and the separate motion of the defendant John Haight for summary judgment dismissing the complaint insofar *973 as asserted by the plaintiff Isa Waxman against each of them on the ground that the plaintiff Isa Waxman 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 reversed, on the law, with one bill of costs to the plaintiffs payable by the defendants appearing separately and filing separate briefs, and the motion of the defendants Village of Lake Success and T.J. Fernandez and the separate motion of the defendant John Haight for summary judgment dismissing the complaint insofar as asserted by the plaintiff Isa Waxman against each of them are denied.

In support of their respective motions for summary judgment dismissing the complaint insofar as asserted by the plaintiff Isa Waxman against them, the defendants failed to meet their respective prima facie burdens of showing that the plaintiff Isa Waxman 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 Isa Waxman’s claim, set forth in the bill of particulars, that he sustained a serious injury under the 90/180-day category of Insurance Law § 5102 (d) (see Che Hong Kim v Kossoff, 90 AD3d 969 [2011]).

Since the defendants did not sustain their respective prima facie burdens, it is unnecessary to determine whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see id.). Therefore, the Supreme Court should have denied the motions.

Mastro, J.E, Chambers, Cohen and Barros, JJ., concur.

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Bluebook (online)

121 A.D.3d 972, 995 N.Y.S.2d 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waxman-v-village-of-lake-success-nyappdiv-2014.

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