Opinion
133 CA 20-00303
07-16-2021
Lloyd CUYLER, Jr., Plaintiff-Appellant, v. Christine SEPCIC, Defendant-Respondent.
PARISI & BELLAVIA, LLP, ROCHESTER ( TIMOTHY C. BELLAVIA OF COUNSEL), FOR PLAINTIFF-APPELLANT. HAGELIN SPENCER LLC, BUFFALO ( LAURA B. GARDINER OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PARISI & BELLAVIA, LLP, ROCHESTER ( TIMOTHY C. BELLAVIA OF COUNSEL), FOR PLAINTIFF-APPELLANT.
HAGELIN SPENCER LLC, BUFFALO ( LAURA B. GARDINER OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order and judgment so appealed from is unanimously modified on the law by denying defendant's motion and reinstating the complaint and as modified the order and judgment is affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages for the injuries he allegedly sustained in a motor vehicle accident. Supreme Court thereafter denied plaintiff's cross motion for partial summary judgment on the issue of serious injury and granted defendant's motion for summary judgment dismissing the complaint on that same issue ( see generally Insurance Law § 5102 [d] ). Plaintiff appeals.
We reject plaintiff's contention that the court erred in denying his cross motion ( see Brown v. Ng , 163 A.D.3d 1464, 1465, 82 N.Y.S.3d 284 [4th Dept. 2018] ). We agree with plaintiff, however, that the court erred in granting defendant's motion ( see Cook v. Peterson , 137 A.D.3d 1594, 1596-1598, 28 N.Y.S.3d 501 [4th Dept. 2016] ). We therefore modify the order and judgment accordingly.