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La Frenire v. Capital District Transportation Authority

Appellate Division of the Supreme Court of New York, Third Department
Jul 21, 1983
96 A.D.2d 664 (N.Y. App. Div. 1983)

Summary

In La Frenire v Capital Dist. Transp. Auth. (96 A.D.2d 664 [3d Dept 1983]), the plaintiff was a passenger on defendant's bus.

Summary of this case from Gasparini v. Hertz Corp.

Opinion

July 21, 1983

Appeal from an order of the Supreme Court at Special Term (Crangle, J.), entered September 23, 1982 in Schenectady County, which denied defendants' motion for summary judgment.


On March 4, 1981, plaintiff was a passenger on a bus owned by defendant Capital District Transportation Authority (CDTA). The CDTA bus was struck in the rear by a school bus owned by defendant Schalmont School District and operated by defendant Francis Severino. As a result of injuries sustained in the collision, plaintiff was taken to the hospital and examined. She was discharged on the same day with aftercare instructions to rest and consult her own physician. Thereafter, plaintiff commenced this action to recover damages for serious injuries allegedly sustained as a result of defendants' negligence in the March 4, 1981 accident. Defendants school district and Severino, joined by defendant CDTA, moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" within the meaning of subdivision 4 of section 671 Ins. of the Insurance Law and, thus, pursuant to subdivision 1 of section 673 Ins. of the Insurance Law, was not entitled to recover for her noneconomic loss. Special Term denied defendants' motion for summary relief and this appeal by defendants school district and Severino ensued. Subdivision 1 of section 673 Ins. of the Insurance Law provides that there shall be no right of recovery for noneconomic loss arising out of negligence in the use or operation of a motor vehicle, except in the case of "serious injury". The definition of "serious injury" is contained in subdivision 4 of section 671 Ins. of the Insurance Law. Plaintiff alleges in her complaint and bill of particulars that she sustained "permanent consequential loss of the normal function of her left eye, vision, back and urinary system". Further, she alleges that as a consequence of her injuries she was "prevented from performing all of the material acts constituting her usual and customary daily activities for a period of not less than 90 days during the one-hundred eighty days immediately following the occurrence". Such allegations, if proved, fall squarely within the statutory definition of "serious injury". To obtain summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" within the meaning of the Insurance Law, defendants have the burden of establishing a defense "'sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form" ( Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065, 1067). Here, defendants submitted two affidavits of their attorneys, neither of whom are qualified medical experts with the requisite knowledge to characterize plaintiff's injuries. While defendants attached to their moving papers three medical reports written by physicians who examined plaintiff, such reports, not being in depositional form, are unsworn hearsay statements (see Boschen v Stockwell, 224 N.Y. 356). Similarly, the unsworn statement of plaintiff's employment supervisor is inadmissible as proof to support defendants' motion for summary judgment. We conclude, therefore, that defendants have failed to sustain their burden by a tender of evidentiary proof in admissible form that plaintiff did not sustain a "serious injury" within the meaning of the Insurance Law. Order affirmed, with costs. Mahoney, P.J., Sweeney, Kane, Weiss and Levine, JJ., concur.


Summaries of

La Frenire v. Capital District Transportation Authority

Appellate Division of the Supreme Court of New York, Third Department
Jul 21, 1983
96 A.D.2d 664 (N.Y. App. Div. 1983)

In La Frenire v Capital Dist. Transp. Auth. (96 A.D.2d 664 [3d Dept 1983]), the plaintiff was a passenger on defendant's bus.

Summary of this case from Gasparini v. Hertz Corp.
Case details for

La Frenire v. Capital District Transportation Authority

Case Details

Full title:CARMELLA LA FRENIRE, Respondent, v. CAPITAL DISTRICT TRANSPORTATION…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jul 21, 1983

Citations

96 A.D.2d 664 (N.Y. App. Div. 1983)

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