Joseph v. Baksh

• Decision Date: 30 March 2016
• Citation: 28 N.Y.S.3d 697,137 A.D.3d 1220
• Parties: Marc Ryan JOSEPH, appellant, v. Jamirul BAKSH, et al., respondents.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1220

28 N.Y.S.3d 697

Marc Ryan JOSEPH, appellant,

v.Jamirul BAKSH, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

March 30, 2016.

Sacco & Fillas, LLP, Astoria, N.Y. (Albert R. Matuza, Jr., of counsel), for appellant.

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Louise M. Cherkis of counsel), for respondents.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, and SYLVIA O. HINDS–RADIX, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Ruchelsman, J.), dated December 12, 2013, which granted the defendants' motion to resettle an order of the same court dated July 26, 2013, denying 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 subject accident, and thereupon granted the defendants' motion in part, and (2) an order of the same court dated March 13, 2014, which denied the plaintiff's motion, in effect, for leave to reargue his opposition to the defendants' motion to resettle the order dated July 26, 2013.

ORDERED that the appeal from the order dated March 13, 2014, is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated December 12, 2013, is reversed, on the law, and the defendant's motion to resettle the order dated July 26, 2013, is denied; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The plaintiff commenced this action to recover damages for personal injuries. 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 July 26, 2013, the Supreme Court denied the defendants' motion. The court held, in relevant part, that "the plaintiff has raised questions of fact concerning the existence of a serious injury to the extent noted and consequently the motion for summary judgment is denied." The defendants did not appeal from this order.

The defendants then moved pursuant to CPLR 5019(a) to resettle the order dated July 26, 2013, "so as to clarify [the Supreme] Court's ruling therein." They argued that the order was not clear as to whether it was denying their motion in part or in its entirety. The plaintiff opposed the motion. In an order dated December 12, 2013, the Supreme Court granted the defendants' motion to resettle, stating, in relevant part, that "questions of fact have only been raised regarding the plaintiff's left shoulder and right hip and evidence can only be introduced concerning those body parts. To this...