D'Onofrio v. Arsenault, 2006-03912.

CourtNew York Supreme Court Appellate Division
Citation2006 NY Slip Op 09544,35 A.D.3d 646,828 N.Y.S.2d 117
Docket Number2006-03912.
PartiesGIOVANNI D'ONOFRIO, Respondent, v. GIOVANNI ARSENAULT, Appellant.
Decision Date19 December 2006
35 A.D.3d 646
828 N.Y.S.2d 117
2006 NY Slip Op 09544
GIOVANNI D'ONOFRIO, Respondent,
v.
GIOVANNI ARSENAULT, Appellant.
2006-03912.
Appellate Division of the Supreme Court of the State of New York, Second Department.
Decided December 19, 2006.

In an action to recover damages for personal injuries, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Richmond County (Gigante, J.), dated March 15, 2005, as denied his 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).


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

The defendant failed to establish his prima facie entitlement to judgment as a matter of law by showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The affirmed medical report of the defendant's examining neurologist indicated the existence of limitations in the range of motion of the plaintiff's lumbar spine (see Grady v Jacobs, 32 AD3d 994 [2006]; Sano v Gorelik, 24

AD3d 747 [2005]; Spuhler v Khan, 14 AD3d 693 [2005]; Omar v Bello, 13 AD3d 430 [2004]; Scotti v Boutureira, 8 AD3d 652 [2004]). Since the defendant failed to meet his initial burden of establishing a prima facie case, it is unnecessary to consider whether the plaintiff's papers submitted in opposition to the defendant's motion were sufficient to raise a triable issue of fact (see Grady v Jacobs, supra; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]).

Miller, J.P., Krausman, Spolzino, Fisher and Dillon, JJ., concur.

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3 practice notes
  • Am. Infertility of N.Y., P.C. v. Verizon N.Y. Inc., 159892/2015
    • United States
    • United States State Supreme Court (New York)
    • December 10, 2020
    ...v. New York New England Exch. , 250 A.D.2d 491, 491-92, 673 N.Y.S.2d 124 (1st Dep't 1998) ; Curwin v. Verizon Communications (LEC) , 35 A.D.3d at 646, 827 N.Y.S.2d 256. Although plaintiffs insist that defendant's senior manager, Anthony Montemarano, "admitted that Verizon did not have an ea......
  • Mitchell v. Hertz Vehicles, LLC, 2007 NY Slip Op 31942(U) (N.Y. Sup. Ct. 7/2/2007), 0100135/2005
    • United States
    • United States State Supreme Court (New York)
    • July 2, 2007
    ...papers submitted in opposition to the defendants' motion were sufficient to raise a triable issue of fact (D'Onofrio v. Arsenault, 35 A.D.3d 646, 647 [2nd Dept. Accordingly, it is ORDERED that the plaintiffs motion to renew this court's decision granting the defendants' motion for summary j......
  • Curwin v. Verizon Communications (Lec), 2005-08409.
    • United States
    • New York Supreme Court Appellate Division
    • December 19, 2006
    ...[1980]). The evidence proffered by the defendant in support of its cross motion did not establish that the plaintiffs or their authorized 35 A.D.3d 646 agent granted an easement or license to the defendant permitting it to install and maintain certain cables, wires, terminal boxes, and fixt......
3 cases
  • Am. Infertility of N.Y., P.C. v. Verizon N.Y. Inc., 159892/2015
    • United States
    • United States State Supreme Court (New York)
    • December 10, 2020
    ...v. New York New England Exch. , 250 A.D.2d 491, 491-92, 673 N.Y.S.2d 124 (1st Dep't 1998) ; Curwin v. Verizon Communications (LEC) , 35 A.D.3d at 646, 827 N.Y.S.2d 256. Although plaintiffs insist that defendant's senior manager, Anthony Montemarano, "admitted that Verizon did not have an ea......
  • Mitchell v. Hertz Vehicles, LLC, 2007 NY Slip Op 31942(U) (N.Y. Sup. Ct. 7/2/2007), 0100135/2005
    • United States
    • United States State Supreme Court (New York)
    • July 2, 2007
    ...papers submitted in opposition to the defendants' motion were sufficient to raise a triable issue of fact (D'Onofrio v. Arsenault, 35 A.D.3d 646, 647 [2nd Dept. Accordingly, it is ORDERED that the plaintiffs motion to renew this court's decision granting the defendants' motion for summary j......
  • Curwin v. Verizon Communications (Lec), 2005-08409.
    • United States
    • New York Supreme Court Appellate Division
    • December 19, 2006
    ...[1980]). The evidence proffered by the defendant in support of its cross motion did not establish that the plaintiffs or their authorized 35 A.D.3d 646 agent granted an easement or license to the defendant permitting it to install and maintain certain cables, wires, terminal boxes, and fixt......

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