DeFreesev.Ryan Sanitation Corporation

Appellate Division of the Supreme Court of New York, Second DepartmentDec 1, 1986
125 A.D.2d 289 (N.Y. App. Div. 1986)

December 1, 1986

Appeal from the Supreme Court, Orange County (Ruskin, J.).

Ordered that the order is reversed, on the law, the motion is denied and the complaint is reinstated.

The defendants have failed to meet their initial burden of establishing as a matter of law that the plaintiff did not suffer serious injury as defined in Insurance Law § 5102 (d) (see, Licari v. Elliott, 57 N.Y.2d 230; Zoldas v. Louise Cab Corp., 108 A.D.2d 378, 381; De Filippo v. White, 101 A.D.2d 801). We reject the defendants' contention that the deposition of plaintiff Joyce DeFreese constituted an admission that she failed to sustain serious injury. As the defendants failed to submit any other evidentiary support for their motion, Special Term improperly granted summary judgment. Moreover, the medical report submitted by the plaintiffs in opposition to the defendants' motion sufficiently raised a triable issue concerning serious injury (see, Mooney v. Ovitt, 100 A.D.2d 702; cf. Dwyer v. Tracey, 105 A.D.2d 476; De Filippo v. White, supra). Thompson, J.P., Niehoff, Rubin and Eiber, JJ., concur.