| Safer v Silbersweig |
| 2010 NY Slip Op 01470 [70 AD3d 921] |
| February 16, 2010 |
| Appellate Division, Second Department |
| Dov Safer et al., Appellants, v Gene Silbersweig,Respondent. |
—[*1] Martyn Toher & Martyn, Mineola, N.Y. (Joseph S. Holotka of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.),entered July 21, 2009, as granted that branch of the defendant's motion which was for summaryjudgment dismissing the complaint on the ground that the plaintiff Dov Safer did not sustain aserious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the defendant's motion which was for summary judgment dismissing the complaint onthe ground that the plaintiff Dov Safer did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) is denied, so much of the order as denied, as academic, thatbranch of the defendant's motion which was for summary judgment on the issue of liability isvacated, and the matter is remitted to the Supreme Court, Nassau County, for a determination onthe merits of that branch of the motion.
The Supreme Court erred in failing to consider those claims of serious injury set forth in theamended bill of particulars of the plaintiff Dov Safer. The amended bill of particulars wasproperly served "as of course prior to the filing of [the] note of issue" in this case (CPLR 3042[b]).
In addition, contrary to the Supreme Court's determination, the defendant failed to meet hisprima facie burden of showing that the plaintiff Dov Safer (hereinafter the injured plaintiff) didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result ofthe subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddyv Eyler, 79 NY2d 955, 956-957 [1992]). The injured plaintiff alleged in his bill ofparticulars and amended bill of particulars that he sustained a traumatic brain injury as a result ofthe subject accident. The defendant's examining orthopedic surgeon, the only doctor whophysically examined the injured plaintiff on behalf of the defendant, failed to address the injuredplaintiff's allegations that he sustained such a brain injury as a result of the subject accident(see Hughes v Cai, 31 AD3d 385 [2006]). On this basis alone, the Supreme Court shouldhave denied that branch of the defendant's motion which was for summary judgment on the issueof serious injury.
Inasmuch as the defendant failed to meet his initial burden on that branch of his motion,[*2]summary judgment on the issue of serious injury should havebeen denied without regard to the sufficiency of the plaintiffs' opposition papers (see Hughesv Cai, 31 AD3d 385 [2006]).
Since the Supreme Court denied, as academic, that branch of the defendant's motion whichwas for summary judgment on the issue of liability, we vacate that portion of the order and remitthe matter to the Supreme Court, Nassau County, for a determination on the merits of that branchof the motion. Rivera, J.P., Florio, Dickerson, Belen and Roman, JJ., concur.