Star v. Badillo

• Decision Date: 11 March 1996
• Citation: 225 A.D.2d 610,638 N.Y.S.2d 791
• Parties: Marilynn STAR, Appellant, v. Daniel BADILLO, Jr., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 791

638 N.Y.S.2d 791

225 A.D.2d 610

Marilynn STAR, Appellant, v. Daniel BADILLO, Jr., et al., Respondents.

Supreme Court, Appellate Division Second Department.

March 11, 1996.

Haber & Jewell, Williston Park (Robert H. Jewell, of counsel), for appellant.

Rivkin, Radler & Kremer, Uniondale (Evan H. Krinick and Christine M. Metzner, of counsel), for respondents.

Before MANGANO, P.J., and THOMPSON, FRIEDMANN, FLORIO and McGINITY, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Doyle, J.), dated January 17, 1995, which denied her motion pursuant to CPLR 3212(g) for summary judgment on the issue of liability, and, which, pursuant to CPLR 3212(b), granted the defendants summary judgment dismissing the complaint based on the plaintiff's failure to establish serious injury as defined in Insurance Law § 5102(d); and (2) so much of an order of the same court, dated April 28, 1995, as denied the branch of the plaintiff's motion which was for renewal.

ORDERED that the order dated January 17, 1995, is affirmed; and it is further,

ORDERED that the order dated April 28, 1995, is affirmed insofar as appealed from; and it is further,

ORDERED that the respondents are awarded one bill of costs.

The plaintiff's contention that the court lacked jurisdiction to search the record as to the issue of serious injury on her motion for partial summary judgment on liability and to direct an inquest as to damages is without merit. While the defendants' cross motion for summary judgment was defective because they failed to serve a notice of cross motion, whether the plaintiff suffered a serious injury as defined by Insurance Law § 5102(d) was clearly raised as an issue in the defendants' motion papers in opposition to the plaintiff's motion. Further, the plaintiff could not establish a right of recovery without establishing serious injury (see, Insurance Law § 5104; Thrall v. City of Syracuse, 96 A.D.2d 715, 464 N.Y.S.2d 1022, revd. on dissenting opn below 60 N.Y.2d 950, 471 N.Y.S.2d 51, 459 N.E.2d 160; Kreuzer v. Gordon Co., 138 A.D.2d 268, 269, 526 N.Y.S.2d 1, 1-2). Thus, the court was permitted to search the record and grant the defendants summary judgment without the necessity of a cross motion (see, CPLR 3212[b] ).

Upon searching the record, the court properly granted the defendants summary judgment and dismissed the complaint. The evidence submitted by the defendants was sufficient to establish that the plaintiff did not suffer serious injury (see, ...