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Altamura v. OneBeacon Insurance Group

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


December 8, 2009

MICHELLE ALTAMURA, RESPONDENT,
v.
ONEBEACON INSURANCE GROUP, APPELLANT.

In an action, inter alia, to recover damages for breach of the supplemental underinsured motorist provision of an insurance policy, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated December 17, 2008, as granted that branch of the plaintiff's motion which was for summary judgment on the issue of serious injury.

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.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN and SHERI S. ROMAN, JJ.

(Index No. 18806/08)

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was for summary judgment on the issue of serious injury is denied.

The plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320). Since the plaintiff failed to meet her prima facie burden, we need not consider the sufficiency of the defendant's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Accordingly, the Supreme Court should have denied that branch of the plaintiff's motion which was for summary judgment on the issue of serious injury.

DILLON, J.P., DICKERSON, BELEN and ROMAN, JJ., concur.

20091208

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