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Walker-Bryant v. Ferrara

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


March 16, 2010

BRENDA WALKER-BRYANT, RESPONDENT,
v.
GENNARO FERRARA, ET AL., APPELLANTS.

In an action to recover damages for personal injuries, the defendants Gennaro Ferrara and Carmella Ferrara separately appeal, as limited by their briefs, from so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated February 3, 2009, as denied their separate motions for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and the defendant Elizabeth Ferrara, a/k/a Elizabeth Mazzitelli, appeals from the same order.

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.

STEVEN W. FISHER, J.P., FRED T. SANTUCCI, DANIEL D. ANGIOLILLO, L. PRISCILLA HALL and PLUMMER E. LOTT, JJ.

(Index No. 6291/06)

DECISION & ORDER

ORDERED that the appeal by the defendant Elizabeth Ferrara, a/k/a Elizabeth Mazzitelli, is dismissed as abandoned (see 22 NYCRR 670.8[e]); and it is further,

ORDERED that the order is affirmed insofar as appealed from by the defendants Gennaro Ferrara and Carmella Ferrara; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff, payable by the defendants Gennaro Ferrara and Carmella Ferrara.

In support of their motions for summary judgment, the defendants Gennaro Ferrara and Carmella Ferrara (hereinafter the appellants) met their respective 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). In opposition to the motions, the plaintiff raised a triable issue of fact (see Sanevich v Lyubomir, 66 AD3d 665; Azor v Torado, 59 AD3d 367, 368). Consequently, the Supreme Court properly denied the appellants' respective motions.

FISHER, J.P., SANTUCCI, ANGIOLILLO, HALL and LOTT, JJ., concur.

20100316

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