Remember B.Y., M.D., P.C. v Government Empl. Ins. Co., 2010 NY Slip Op 20026 (App. Term, 2nd, 2010)? Because the decision is less than helpful, I pulled the briefs to see what the hell happened.
I think I forgot to copy an important page or two, but this is what I remember (someone from Geico can chime in if I’m wrong) of those missing pages: Geico argued that you couldn’t move for SJ under (e) to get (g), that you had to go for it all. From that pages that I did manage to copy, here is what they argued: (1) that PF was not established; (2)that (g) was discretionary; (3) that Richard Morgan D.O., P.C. v GEICO Indem. Co. can be distinguished; (4) that because plaintiff did not establish its prima facie case it couldnt get (e) or (g); and (5) that it agreed with the lower court ruling, namely “a mere finding here that the [plaintiffs] submitted the claim forms and that the payment of no-fault benefits was overdue would not entitle the [plaintiffs] to partial summary judgment. No case was cited to support (5).
Plaintiff cited to Mustello v. Szczepanski (sorry, no link) in support of its argument as to (e). There plaintiff moved for partial summary judgment as to whether he received a serious injury. The lower court denied the motion and the Appellate Division reversed. As to (g) he pointed to the “shall” in 3212(g).
There was no reply brief.
For more background on this, head over to JT’s blog.
Here is the case in its entirety
Bruce C. Mustello et al., Appellants, v. Susan C. Szczepanski, Respondent.
97-03443
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
245 A.D.2d 553; 667 N.Y.S.2d 63; 1997 N.Y. App. Div. LEXIS 13373
November 5, 1997, Submitted
December 29, 1997, Decided
PRIOR HISTORY: [***1] In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Underwood, J.), dated April 1, 1997, which denied their motion for partial summary judgment on the issue of whether the plaintiff Bruce Mustello suffered a serious injury as defined by Insurance Law § 5102 (d).
DISPOSITION: ORDERED that the order is reversed, on the law, with costs, and the plaintiffs’ motion for partial summary judgment is granted.
CASE SUMMARY
PROCEDURAL POSTURE: In personal injury action, plaintiffs appealed from an order of the Supreme Court, Suffolk County (New York) that denied their motion for partial summary judgment on the issue of whether one plaintiff suffered a serious injury as defined by N.Y. Ins. Law § 5102 (d).
OVERVIEW: The injured plaintiff was injured in an automobile accident and contended that he suffered a serious injury within the meaning of N.Y. Ins. Law § 5102 (d). The court reversed the order denying plaintiffs summary disposition on the issue. The court held that he suffered a significant limitation of use of a body function or system because his injuries required a surgical fusion that had left his head and neck virtually frozen in the neutral position.
OUTCOME: The court reversed the order and granted plaintiffs summary disposition on the issue of whether one plaintiff suffered a serious injury.
COUNSEL: John H. Mulvehill, St. James, N.Y. (Martha L. Luft of counsel), for appellants.
Garcia & Stallone, Melville, N.Y. (Joseph F. Garcia and Karl Zamurs of counsel), for respondent.
JUDGES: Bracken, J. P., Pizzuto, Altman and Krausman, JJ., concur.
OPINION
[*553] [**64] Ordered that the order is reversed, on the law, with costs, and the plaintiffs’ motion for partial summary judgment is granted.
Upon our review of the record, we find that the plaintiffs sustained their burden of demonstrating, through the submission of proof in admissible form, that the plaintiff Bruce C. Mustello sustained a serious injury within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955, 956; [***2] Licari v Elliott, 57 NY2d 230, 237). The plaintiffs’ submissions in support of their motion included a physician’s affirmation which revealed that the injured plaintiff had suffered an acute posttraumatic subluxation of the cervical spine, necessitating a surgical fusion that had left his head and neck “virtually frozen in the neutral position”. This evidence was sufficient to establish a prima facie case that the injured plaintiff suffered a significant [*554] limitation of use of a body function or system (see, Insurance Law § 5102 [d]); see also, Lopez v Senatore, 65 NY2d 1017, 1019; Huggins v Daniels, 237 AD2d 491; Mendola v Demetres, 212 AD2d 515).
Furthermore, the affirmation of the defendant’s attorney, which suggested that the injured plaintiff’s surgery was necessitated by a cogenital abnormality, was insufficient to raise an issue of fact to refute the plaintiffs’ prima facie showing that the surgery was required due to injuries Bruce C. Mustello suffered in the automobile accident (see, Akujuo v USA Truck, 227 AD2d 360, 361).
Bracken, J. P., Pizzuto, Altman and Krausman, [***3] JJ., concur.