Xin Fang Xia v. Saft

• Decision Date: 13 November 2019
• Docket Number: Index No. 501098/14,2016–12263,2017–05247
• Parties: XIN FANG XIA, Appellant, v. Laura SAFT, Respondent.
• Court: New York Supreme Court — Appellate Division

177 A.D.3d 823
113 N.Y.S.3d 249

XIN FANG XIA, Appellant,
v.
Laura SAFT, Respondent.

2016–12263
2017–05247
Index No. 501098/14

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

Argued - September 12, 2019
November 13, 2019

113 N.Y.S.3d 250

Napoli Shkolnik, PLLC, New York, NY (Joseph P. Napoli, Ashley M. Pappas, and Kristine M. Georgiou of counsel), for appellant.

James G. Bilello (Russo & Tambasco, Melville, NY [Yamile R. Al–Sullami and Jill Dabrowski], of counsel), for respondent.

LEONARD B. AUSTIN, J.P., JOHN M. LEVENTHAL, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

177 A.D.3d 823

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Edgar G. Walker, J.), dated October 14, 2016, and (2) an order of the same court dated January 6, 2017. The order

177 A.D.3d 824

dated October 14, 2016, granted the defendant's 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 denied, as academic, the plaintiff's cross motion for summary judgment on the issue of liability. The order dated January 6, 2017, denied the plaintiff's motion for leave to renew or reargue his opposition to the defendant's motion.

ORDERED that the appeal from so much of the order dated January 6, 2017, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the appeal from so much of the order dated January 6, 2017, as denied that branch of the plaintiff's motion which was for leave to renew is dismissed as academic in light of our determination on the appeal from the order dated October 14, 2016; and it is further,

ORDERED that the order dated October 14, 2016, is reversed, on the law, the defendant's motion for summary judgment dismissing the complaint is denied, and the plaintiff's cross motion for summary judgment on the issue of liability is granted; and it is further,

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

The plaintiff and the defendant were involved in a motor vehicle collision on Barclay Street, at or near its intersection with Broadway, in Manhattan. The plaintiff commenced this action to recover damages for his injuries. In the bill of particulars, the plaintiff alleged, inter alia, that he sustained a serious injury under the 90/180–day category of Insurance Law § 5102(d).

The defendant 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 § 102(d) as a result of the subject accident. In support, she submitted, among other things, a transcript of the plaintiff's deposition testimony, in which the plaintiff stated that he did not resume his job as a driver until at least December 2012—approximately six months after the accident. The plaintiff opposed the defendant's motion, and also cross-moved for summary judgment on the issue of liability. In an order dated October 14, 2016, the Supreme Court granted the defendant's motion for summary judgment dismissing the complaint. The court also denied, as academic, the plaintiff's cross motion for summary judgment on the issue of liability. Subsequently, in an order dated January 6, 2017, the court denied the plaintiff's

113 N.Y.S.3d 251

motion for leave to

177 A.D.3d 825

renew or reargue his opposition to the defendant's prior motion. The plaintiff appeals from both orders.

The appeal from so much of the order...