From Casetext: Smarter Legal Research

Tarnagorski v. Donofrio

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Jul 15, 2020
185 A.D.3d 865 (N.Y. App. Div. 2020)

Opinion

2019–01691 Index No. 603051/17

07-15-2020

Jasmine L. TARNAGORSKI, Appellant, v. Salvatore DONOFRIO, et al., Respondents.

Steven Cohn, P.C., Carle Place, N.Y. (Mitchell R. Goldklang of counsel), for appellant.


Steven Cohn, P.C., Carle Place, N.Y. (Mitchell R. Goldklang of counsel), for appellant.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Jerome C. Murphy, J.), entered January 7, 2019. The order granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident at issue.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

The plaintiff commenced this action to recover damages for personal injuries that she alleges she sustained in a motor vehicle accident that occurred in 2015. The defendants moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. The Supreme Court granted the defendants' motion, and the plaintiff appeals.

The defendants failed to establish, prima facie, that the plaintiff's claim of a serious injury to her head does not constitute a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Rosales v. Rivera, 176 A.D.3d 753, 754, 110 N.Y.S.3d 47 ; Adams v. Dura Cab Corp., 152 A.D.3d 634, 635, 58 N.Y.S.3d 555 ). Since the defendants failed to meet their prima facie burden, the Supreme Court should have denied their motion for summary judgment, regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).

Accordingly, we reverse the order.

RIVERA, J.P., ROMAN, HINDS–RADIX and DUFFY, JJ., concur.


Summaries of

Tarnagorski v. Donofrio

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Jul 15, 2020
185 A.D.3d 865 (N.Y. App. Div. 2020)
Case details for

Tarnagorski v. Donofrio

Case Details

Full title:Jasmine L. Tarnagorski, appellant, v. Salvatore Donofrio, et al.…

Court:SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Jul 15, 2020

Citations

185 A.D.3d 865 (N.Y. App. Div. 2020)
2020 N.Y. Slip Op. 3940
125 N.Y.S.3d 562