If the Second Department is reversed, those same arbitrators would presumably resume the methodologies they have been using all along. While GEICO appears to prefer the simplicity of a bright-line rule denying reimbursement altogether, the legislature chose to cover “all” expenses “necessary,” N.Y. INS. LAW § 5102(a)(1), -13- and thus invariably invited line-drawing in certain cases. The Court cannot jettison this language because a different system might be easier to administer.

That conclusion hardly follows, however, because nothing in the HCRA amended the clear statutory language in the no-fault laws requiring reimbursement for “[a]ll necessary expenses” for “medical [or] surgical . . . services.” N.Y. INS. LAW § 5102(a)(1). In - 7 - addition, the HCRA surcharge law was passed 11 years before the office-based surgery law, and thus could not possibly reflect a legislative judgment that office-based surgery providers should somehow be exempt from no-fault reimbursement.

As a result of the accident, the Plaintiff sustained tears to his left shoulder, requiring surgery, as well as injuries to his neck and back. Defendants-Respondents moved for Summary Judgment on the grounds that Plaintiff Kyreese Franklin did not sustain a serious injury under NY Insurance Law § 5102(d). (R 18-24).

6 Pedestrians are covered under the No-Fault Statute, although they obviously have not paid or otherwise implicitly contracted with the vehicles causing their injuries. See N.Y. Ins. Law § 5102; see also Perez-Hernandez v. M. Marte Auto Corp., 104 A.D.3d 489, 490 (1st Dep’t 2013) (granting summary judgment in favor of pedestrian seeking recovery under no-fault law); Thomas v. Travelers Ins. Co., 54 A.D.2d 608, 608-09 (4th Dep’t 1976) (holding that the plaintiff, who was crossing the street on foot at the time of the accident, “was a pedestrian and was a covered person” under the No-Fault Law). The No-Fault Law similarly covers bicyclists, as well as individuals injured when a vehicle strikes a building, all of whom had no contact with the drivers or their insurance carriers prior to the accident triggering no-fault coverage.

j,uprtmt ctourt APPELLATE DIVISION - FIRST DEPARTMENT KYREESE L. FRANKLIN, against CARMEN ROSA GAREYUA and MENSCH MANAGEMENT INC., Plaintiff-Appellant, Defendants-Respondents. BRIEF FOR DEFENDANTS-RESPONDENTS Of Counsel: Colin F. Morrissey BAKER, MCEVOY, MORRISSEY & MOSKOVITS, P.C. Attorneys for Defendants-Respondents I MetroTech Center North, 8th Floor Brooklyn, New York 11201 212-857-8230 Ikhan@bm31aw.com Printed on Recycled Paper TABLE OF CONTENTS TABLE OF CASES & AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 COUNTER-PRELIMINARY STATEMENT.................................. 3 COUNTER-ISSUES PRESENTED FOR REVIEW........................... 5 COUNTER-STATEMENT OF FACTS....................................... 6 ARGUMENT....................................................................... 11 CONCLUSION.................................................................. 16 1 TABLE OF CASES AND AUTHORITIES STATUTES N.Y. Insurance Law Section 5102(d) ....................................................... 6 CASE LAW Alvarez v. NYLL Management. 120 A.D.3d 1043 (1st Dept. 2014) ...................... 12 Angeles v. Versace Inc., 124 A.D.3d 544 [1st Dept. 2015] ..................................... 13 Ocean v. Hossain, 127 A.D. 3d 402 [1st Dept. 2015] .............................................. 13 Rivera v. Fernandez & Ulloa Auto Group, 123 A.D.3d 509 [1st Dept. 2014] ......... 13 Vaughan v. Leon.

As relevant here, serious injury is defined as: (1) “permanent consequential limitation of use of a body organ or member” or (2) “significant limitation of use of a body function or system.” N.Y. Ins. Law § 5102(d). These categories of serious injury must be construed “narrowly and in accordance with the statute’s aim to limit personal injury litigation arising from automobile accidents.”

This Court’s opinion in Pommells v. Perez (“Pommells”), 4 N.Y.3d 566 (2008), is illustrative. Pommells decided three appeals in which the plaintiffs had alleged that automobile accidents had caused them to sustain “serious injury,” as New York Insurance Law § 5102(d) defines that term. In two of those appeals, - 58 - the record on the defendants’ summary judgment motions demonstrated a gap of several years between the end of the plaintiffs’ medical treatment and the preparation of expert reports opining that they had experienced serious injuries.