Opinion
2004-235 Q C.
Decided November 30, 2004.
Appeal by defendant from an order of the Civil Court, Queens County (J. Golia, J.), entered June 19, 2003, which granted plaintiffs' motion to reargue and, upon reargument, vacated an order granting on default defendant's motion for summary judgment and denied defendant's motion for summary judgment.
Order unanimously modified by providing that the branch of plaintiffs' motion seeking to vacate the order granting on default summary judgment as against plaintiff Dmitry Gluzman is denied; as so modified, affirmed without costs.
PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
Defendant's motion for summary judgment had been predicated on the ground that plaintiffs did not suffer serious injuries pursuant to Insurance Law § 5102 (d). Said motion was granted on default. Plaintiffs moved to vacate the default order and to deny defendant's motion for summary judgment, said motion was denied and plaintiffs moved for reargument. Upon reargument, plaintiffs' motion to vacate the default order and to deny defendant's motion for summary judgment was granted.
In our opinion, the court properly vacated the default as to plaintiffs Marat Gluzman and Liliya Gluzman. Their attorney submitted a reasonable excuse for his failure to oppose defendant's prior motion for summary judgment. With respect to the merits of said prior motion, the affirmed medical reports submitted by defendant's medical experts in support of the motion made out a prima facie case that each plaintiff did not sustain serious injuries pursuant to Insurance Law § 5102 (d). This shifted the burden to plaintiffs to raise a triable issue of fact ( see Gaddy v. Eyler, 79 NY2d 955).
Plaintiffs Marat Gluzman and Liliya Gluzman presented evidence that they suffered serious injuries. The affirmations of their physician substantiated the claim of serious injury by comparing their limitations of motion of their cervical and lumbar spines to the normal function ( see Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350).
On the other hand, the default should not have been vacated as to plaintiff Dmitry Gluzman. He failed to demonstrate more than mild disabilities ( see Ireland v. Clarkstown Cent. School Dist., 210 AD2d 637) and, thus, did not establish a meritorious action.