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Kiernan v. DaimlerChrysler Corp.

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


August 18, 2009

ROBERT KIERNAN, APPELLANT, ET AL., PLAINTIFF,
v.
DAIMLERCHRYSLER CORP., ET AL., RESPONDENTS.

In an action to recover damages for personal injuries, etc., the plaintiff Robert Kiernan appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated January 8, 2009, as denied his motion for summary judgment on the issue of whether he sustained 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.

ROBERT A. SPOLZINO, J.P., FRED T. SANTUCCI, DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL and PLUMMER E. LOTT, JJ.

(Index No. 41280/07)

DECISION & ORDER

ORDERED that the order is modified, on the law, by adding thereto a provision that the denial of the motion is with leave to renew upon the completion of discovery; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court properly denied the motion of the plaintiff Robert Kiernan for summary judgment. When Kiernan made his motion, discovery, including the exchange of X ray materials that were the basis of this plaintiff's claims, was still outstanding (see CPLR 3212[f]; Destin v New York City Tr. Auth., 303 AD2d 713; Morris v Hochman, 296 AD2d 481). However, the motion should have been denied with leave to renew upon the completion of discovery.

SPOLZINO, J.P., SANTUCCI, ANGIOLILLO, LEVENTHAL and LOTT, JJ., concur.

20090818

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