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Kelly v. County of Suffolk

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


May 19, 2009

DALLAS M. KELLY, APPELLANT,
v.
COUNTY OF SUFFOLK, ET AL., RESPONDENTS.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Weber, J.), dated June 13, 2008, which granted the motion of the defendants County of Suffolk, Inter-County Motor Coach, Inc., and Walter Hess, and the separate motion of the defendant Barbara Falcone, for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

REINALDO E. RIVERA, J.P., MARK C. DILLON, JOSEPH COVELLO and L. PRISCILLA HALL, JJ.

(Index No. 3693/05)

DECISION & ORDER

ORDERED that the order is reversed, on the law, with one bill of costs to the plaintiff payable by the respondents appearing separately and filing separate briefs, and the motions for summary judgment dismissing the complaint insofar as asserted against each of the defendants are denied.

The defendants failed to meet their prima facie burdens of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). Thus, the Supreme Court should have denied the motions, regardless of the sufficiency of the plaintiff's opposition papers.

RIVERA, J.P., DILLON, COVELLO and HALL, JJ., concur.

20090519

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