| Newberger v Hirsch |
| 2008 NY Slip Op 02562 [49 AD3d 700] |
| March 18, 2008 |
| Appellate Division, Second Department |
| Neith Newberger et al., Appellants, v Bobbi Hirsch,Respondent, et al., Defendant. |
—[*1] Shapiro, Beilly, Rosenberg & Aronowitz, LLP, New York, N.Y. (Roy J. Karlin of counsel),for respondent.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order ofthe Supreme Court, Queens County (Dorsa, J.), dated October 18, 2006, which granted themotion of the defendant Bobbi Hirsch for summary judgment dismissing the complaint insofar asasserted against her on the ground that none of the plaintiffs sustained a serious injury within themeaning of Insurance Law § 5102 (d).
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the motion of the defendant Bobbi Hirsch which was to dismiss the complaint insofaras asserted by the plaintiff Neith Newberger against her, and substituting therefor a provisiondenying that branch of the motion; as so modified, the order is affirmed, without costs ordisbursements.
The plaintiff Neith Newberger was operating a minivan in which her four minor childrenwere passengers, when it was struck by a second motor vehicle, which allegedly was backing outof a driveway and onto the roadway of the Horace Harding Expressway in Queens. After theplaintiffs commenced the present action, the defendant Bobbi Hirsch moved for summaryjudgment dismissing the complaint on the ground that none of the plaintiffs sustained a seriousinjury within the meaning of Insurance Law § 5102 (d).
The medical evidence which the movant submitted in support of her motion failed to [*2]establish, prima facie, that Neith Newberger did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) (see Tchjevskaia v Chase, 15 AD3d389 [2005]). Notably, the affirmed medical report prepared by the movant's orthopedicexpert raised a triable issue of fact (see CPLR 3212 [b]) as to whether Neith Newbergersustained a "significant limitation of use of a body function or system" (Insurance Law §5102 [d]). Under these circumstances, it is unnecessary to consider the sufficiency of theopposition papers submitted by Neith Newberger (see Tchjevskaia v Chase, 15 AD3d at389).
However, the medical evidence which the movant submitted in support of her motion as itrelated to the other plaintiffs established, prima facie, that none of those plaintiffs sustained aserious injury within the statutory definition (see Gaddy v Eyler, 79 NY2d 955, 956-957[1992]). In opposition, those plaintiffs failed to raise a triable issue of fact. Lifson, J.P., Ritter,Florio and Carni, JJ., concur.