From Casetext: Smarter Legal Research

Villa v. Armstrong

Supreme Court, Appellate Division, Second Department, New York.
Jul 2, 2014
119 A.D.3d 552 (N.Y. App. Div. 2014)

Opinion

2014-07-2

Katherine VILLA, etc., respondent, v. Paula ARMSTRONG, appellant.

Edward M. Eustace, White Plains, N.Y. (Heath A. Bender of counsel), for appellant. Sobo & Sobo, LLP, Middletown, N.Y. (Brett Peter Linn of counsel), for respondent.


Edward M. Eustace, White Plains, N.Y. (Heath A. Bender of counsel), for appellant. Sobo & Sobo, LLP, Middletown, N.Y. (Brett Peter Linn of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Orange County (Slobod, J.), dated October 8, 2013, which denied her motion for summary judgment dismissing the complaint on the ground that the plaintiff's son did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

ORDERED that the order is affirmed, with costs.

The defendant failed to meet her prima facie burden of showing that the plaintiff's son did not 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., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The papers submitted by the defendant failed to adequately address the plaintiff's claim, set forth in the bill of particulars, that her son sustained a serious injury to his brain under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) ( see generally Toure v. Avis Rent A Car Sys., 98 N.Y.2d at 350–351, 746 N.Y.S.2d 865, 774 N.E.2d 1197). Since the defendant did not sustain her prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact ( see Che Hong Kim v. Kossoff, 90 A.D.3d 969, 934 N.Y.S.2d 867).

Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff's son did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. MASTRO, J.P., HALL, LOTT, AUSTIN and DUFFY, JJ., concur.


Summaries of

Villa v. Armstrong

Supreme Court, Appellate Division, Second Department, New York.
Jul 2, 2014
119 A.D.3d 552 (N.Y. App. Div. 2014)
Case details for

Villa v. Armstrong

Case Details

Full title:Katherine VILLA, etc., respondent, v. Paula ARMSTRONG, appellant.

Court:Supreme Court, Appellate Division, Second Department, New York.

Date published: Jul 2, 2014

Citations

119 A.D.3d 552 (N.Y. App. Div. 2014)
119 A.D.3d 552
2014 N.Y. Slip Op. 4917