Hawramee v. Serena
| Decision Date | 19 March 2021 |
| Docket Number | CA 19-00236,1070 |
| Parties | Sonya H. HAWRAMEE, Plaintiff-Appellant, v. David L. SERENA, III, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
192 A.D.3d 1592
145 N.Y.S.3d 253
Sonya H. HAWRAMEE, Plaintiff-Appellant,
v.
David L. SERENA, III, Defendant-Respondent.
1070
CA 19-00236
Supreme Court, Appellate Division, Fourth Department, New York.
Entered: March 19, 2021
PAUL WILLIAM BELTZ, P.C., BUFFALO (WILLIAM A. QUINLAN OF COUNSEL), FOR PLAINTIFF-APPELLANT.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (JUSTIN L. HENDRICKS OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is denied in part and the complaint, as amplified by the amended and supplemental bill of particulars, is reinstated with respect to the permanent consequential limitation of use, significant limitation of use, and 90/180-day categories of serious injury within the meaning of Insurance Law § 5102 (d).
Memorandum: In this action to recover damages for injuries allegedly sustained as a result of a motor vehicle accident, plaintiff appeals from an order that, inter alia, granted defendant's motion for summary judgment dismissing the complaint, as amplified by the amended and supplemental bill of particulars, with respect to the permanent consequential limitation of use, significant limitation of use, and 90/180-day categories of serious injury (see Insurance Law § 5102 [d] ). We agree with plaintiff that Supreme Court erred in granting the motion to that extent, and we therefore reverse the order insofar as appealed from.
Defendant failed to meet his initial burden of establishing that plaintiff did not sustain a serious injury under the permanent consequential limitation of use or significant limitation of use categories inasmuch as defendant's own submissions in support of his motion raised triable issues of fact with respect to those categories (see
Barnes v. Occhino , 171 A.D.3d 1455, 1456, 99 N.Y.S.3d 146 [4th Dept....
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