Opinion
No. 2021-02316 Index No. 603540/19
05-22-2024
Jamelyn Boxwill, respondent, v. County of Nassau, defendant Incorporated Village of Lake Success, et al., appellants.
Sokoloff Stern LLP, Carle Place, NY (Stuart Diamond and Kiera J. Meehan of counsel), for appellants. The Flomenhaft Law Firm, PLLC, New York, NY (Michael Flomenhaft, Jordan S. Hoch, and Daniel Freitas of counsel), for respondent.
Sokoloff Stern LLP, Carle Place, NY (Stuart Diamond and Kiera J. Meehan of counsel), for appellants.
The Flomenhaft Law Firm, PLLC, New York, NY (Michael Flomenhaft, Jordan S. Hoch, and Daniel Freitas of counsel), for respondent.
BETSY BARROS, J.P., LINDA CHRISTOPHER, DEBORAH A. DOWLING, JANICE A. TAYLOR, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Incorporated Village of Lake Success, Lake Success Police Department, and Michael R. Caputo appeal from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), dated February 23, 2021. The order, insofar as appealed from, denied those 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 subject accident.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly was injured when a vehicle operated by the defendant Michael R. Caputo came into contact with the vehicle that the plaintiff was operating. Thereafter, the plaintiff commenced this action to recover damages for personal injuries. The defendants Incorporated Village of Lake Success, Lake Success Police Department, and Michael R. Caputo (hereinafter collectively 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 subject accident. In an order dated February 23, 2021, the Supreme Court, inter alia, denied the motion. The defendants appeal. We affirm, albeit on different grounds from those relied upon by the Supreme Court.
Contrary to the Supreme Court's determination, the defendants 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 accident (see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345; Gaddy v Eyler, 79 N.Y.2d 955, 956-957). The defendants' submissions failed to address the plaintiff's claims, set forth in the bill of particulars, that, as a result of the defendants' negligence, the accident exacerbated preexisting injuries to the plaintiff's right shoulder and the cervical and lumbar regions of her spine (see Weber v Kalisky, 218 A.D.3d 629, 630; D'Augustino v Bryan Auto Parts, Inc., 152 A.D.3d 648, 650; Sanclemente v MTA Bus Co., 116 A.D.3d 688, 689).
Since the defendants failed to meet their prima facie burden, the Supreme Court should have denied their motion for summary judgment without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
The defendants' remaining contentions are without merit.
BARROS, J.P., CHRISTOPHER, DOWLING and TAYLOR, JJ., concur.