| Carmody v Bald |
| 2013 NY Slip Op 00448 [102 AD3d 904] |
| January 30, 2013 |
| Appellate Division, Second Department |
| Marguerite Carmody, Appellant, v Esther Bald etal., Respondents. |
—[*1] Andrea G. Sawyers, Melville, N.Y. (Christopher T. Vetro of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from (1)an order of the Supreme Court, Nassau County (Brown, J.), entered March 26, 2012,which granted the defendants' motion for summary judgment dismissing the complainton the ground that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident, and denied her crossmotion for summary judgment on the issue of serious injury and dismissing thedefendants' second, third, and fourth affirmative defenses, and (2) an order of the samecourt dated June 1, 2012, which denied her motion for leave to renew and reargue hercross motion and her opposition to the defendants' motion.
Ordered that the order entered March 26, 2012, is modified, on the law, (1) bydeleting the provision thereof granting the defendants' motion for summary judgmentdismissing the complaint and substituting therefor a provision denying the defendants'motion, (2) by deleting the provisions thereof denying those branches of the plaintiff'scross motion which were for summary judgment on the issue of serious injury anddismissing the defendants' fourth affirmative defense, and substituting therefor aprovision granting those branches of the plaintiff's cross motion, and (3) by adding thewords "as academic" to the provision of the order denying those branches of theplaintiff's motion which were for summary judgment dismissing the second and thirdaffirmative defenses; as so modified, the order entered March 26, 2012, is affirmed; andit is further,
Ordered that the appeal from the order dated June 1, 2012, is dismissed; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from so much of the order dated June 1, 2012, as denied that branch ofthe plaintiff's motion which was for leave to reargue must be dismissed, as no appeal liesfrom an order denying reargument. The appeal from so much of the same order as deniedthat branch of the plaintiff's motion which was for leave to renew must be dismissed asacademic in light of our determination on the appeal from the order entered March 26,2012.
The defendants failed to meet their prima facie burden of demonstrating that the[*2]plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d) as a result of the subject accident (seeToure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]; Gaddy v Eyler, 79NY2d 955, 956-957 [1992]). The defendants' motion papers failed to adequately addressthe plaintiff's claim, clearly set forth in the bill of particulars, that she sustained seriousinjuries to the cervical and lumbar regions of her spine (see Fudol v Sullivan, 38 AD3d593, 594 [2007]).
The plaintiff, however, did meet her prima facie burden of demonstrating that shedid, in fact, 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., 98NY2d at 350; Gaddy v Eyler, 79 NY2d at 956-957). The plaintiff submittedcompetent medical evidence in admissible form demonstrating that she sustained seriousinjuries to the cervical and lumbar regions of her spine (see Fudol v Sullivan, 38AD3d at 594). The defendants failed to raise a triable issue of fact in opposition.
Thus, the Supreme Court should have denied the defendants' motion for summaryjudgment dismissing the complaint, and should have granted those branches of theplaintiff's cross motion which were for summary judgment on the issue of a seriousinjury and dismissing the defendants' fourth affirmative defense.
The plaintiff further contends that the Supreme Court should have granted thosebranches of her cross motion which were for summary judgment dismissing thedefendants' second and third affirmative defenses. Those affirmative defenses, however,concerned the issue of liability, and the Supreme Court had already granted summaryjudgment to the plaintiff on the issue of liability in an order dated August 26, 2011. Thus,the Supreme Court should have denied, as academic, those branches of the plaintiff'scross motion which were for summary judgment dismissing the second and thirdaffirmative defenses. Skelos, J.P., Chambers, Sgroi and Hinds-Radix, JJ., concur.[Prior Case History: 2012 NY Slip Op 30799(U).]