Christman v. Cueva

Apr 5, 2004
Versions:6 A.D.3d 375
773 N.Y.S.2d 903

*376In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Dutchess County (Pagones, J.), dated November 14, 2002, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and (2), as limited by his brief, from so much of an order of the same court dated February 14, 2003, as denied that branch of his motion which was for leave to renew.

Ordered that the order dated November 14, 2002, is reversed, on the law, the defendants’ motion is denied, and the complaint is reinstated; and it is further,

Ordered that the appeal from the order dated February 14, 2003, is dismissed as academic; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The defendants failed to establish that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). In support of their motion, the defendants submitted, among other things, reports from the plaintiffs treating physicians and an affirmation of their medical expert which indicated that he had a central disc herniation, suffered from muscle spasms, and might need future surgery given the length of time his symptoms had persisted. Thus, the Supreme Court should have denied their motion regardless of the sufficiency of the plaintiffs opposing papers (see Dettori v Molzon, 306 AD2d 308 [2003]; Tillman v Metropolitan Suburban Bus Auth., 289 AD2d 397 [2001]).

In light of our determination, it is unnecessary to address the plaintiff’s remaining contentions. Altman, J.P., Krausman, Goldstein and Mastro, JJ., concur.