April 30, 2014 – M&H Wins Affirmance Of Summary Judgment In Personal Injury Action

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Meskovic v Walman, et al., 116 AD3d 1012 [2d Dept., 2014]

In this action to recover damages for personal injuries resulting from a motor vehicle accident, the Appellate Division, Second Judicial Department, in accordance with M&H’s arguments on appeal, affirmed the lower court’s denial of the defendants’ motion for summary judgment. In so holding, the Court reasoned that defendants had failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102.

Meskovic v Walman

2014 NY Slip Op 02906

Decided on April 30, 2014

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 30, 2014

SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.
THOMAS A. DICKERSON
JEFFREY A. COHEN
SYLVIA O. HINDS-RADIX
JOSEPH J. MALTESE, JJ.

2013-08762
(Index No. 100399/12)

[*1]Zarko Meskovic, respondent,
v
Franklin Walman, et al., defendants, Vaton Pacuku, et al., appellants.

DeSena & Sweeney, LLP, Bohemia, N.Y. (Shawn P.
O'Shaughnessy of counsel), for appellants.
Krentsel & Guzman, LLP (Mischel & Horn, P.C., New York,
N.Y. [Scott T. Horn], of counsel), for
respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Vaton Pacuku and Victory Construction Consultants, Inc., appeal from so much of an order of the Supreme Court, Richmond County (Minardo, J.), dated May 30, 2013, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) at a result of the subject accident.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The appellants failed to meet their prima facie burden of showing that the plaintiff 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 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The papers submitted by the appellants failed to adequately address the plaintiff's claim, set forth in the bill of particulars, that he sustained serious injuries to the cervical and lumbar regions of his spine (cf. Staff v Yshua, 59 AD3d 614).

Since the appellants did not sustain their 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 AD3d 969). Accordingly, the Supreme Court properly denied the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.

RIVERA, J.P., DICKERSON, COHEN, HINDS-RADIX and MALTESE, JJ., concur. [*2]

ENTER:
Aprilanne Agostino
Clerk of the Court