Richards v. Manley Driving School, Inc.

• Decision Date: 07 March 2006
• Docket Number: 2004-10572.
• Citation: 27 A.D.3d 443,811 N.Y.S.2d 746,2006 NY Slip Op 01601
• Parties: BEVERLY RICHARDS, Respondent, v. MANLEY DRIVING SCHOOL, INC., et al., Respondents-Appellants, and JIM SMITH CHEVROLET, INC., et al., Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

27 A.D.3d 443

811 N.Y.S.2d 746

2006 NY Slip Op 01601

BEVERLY RICHARDS, Respondent, v. MANLEY DRIVING SCHOOL, INC., et al., Respondents-Appellants, and JIM SMITH CHEVROLET, INC., et al., Appellants-Respondents.

2004-10572.

Appellate Division of the Supreme Court of the State of New York, Second Department.

March 7, 2006.

In an action to recover damages for personal injuries, the defendants Jim Smith Chevrolet, Inc., and Joseph Spero appeal from so much of an order of the Supreme Court, Kings County (Ambrosio, J.), dated October 25, 2004, 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), and the defendants Manley Driving School, Inc., and Jacquelyne Robinson cross-appeal from so much of the same order as denied their motion for summary judgment on the issue of liability and 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).

Ordered that the order is affirmed, with one bill of costs payable to the plaintiff by the defendants appearing separately and filing separate briefs.

While we affirm the order of the Supreme Court, we do so on grounds other than those relied upon by the Supreme Court. Contrary to the Supreme Court's finding, the defendants failed on their separate motions to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]).

With respect to that branch of the motion of the defendants Manley Driving School, Inc. (hereinafter Manley), and Jacquelyne Robinson which was for summary judgment on the issue of liability arising out of the instant rear-end collision, those defendants established their prima facie burden on that branch of their motion since they submitted evidence establishing that the vehicle owned by the defendant Jim Smith Chevrolet, Inc., and driven by the defendant Joseph Spero rear-ended the vehicle owned by the defendant Manley, in which the plaintiff was a passenger, while it was either stopped or stopping (see Briceno v Milbry, 16 AD3d 448 [2005]). In opposition, the defendants Jim Smith Chevrolet, Inc., and Joseph Spero established an issue of fact under the...