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Miracle Armand, Etc., et al v. Mota Raman

New York Supreme and/or Appellate Courts Appellate Division, First Department


June 12, 2012

MIRACLE ARMAND, ETC., ET AL.,
PLAINTIFFS,
JENNIFER CROMWELL,
PLAINTIFF-APPELLANT,
v.
MOTA RAMAN, ET AL.,
DEFENDANTS-RESPONDENTS.

Armand v Raman

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.

Decided on June 12, 2012

Saxe, J.P., Catterson, Acosta, DeGrasse, Richter, JJ.

Order, Supreme Court, Bronx County (Kibbie F. Payne, J.), entered June 24, 2011, which, in an action alleging serious injuries within the meaning of Insurance Law § 5102(d), denied plaintiff-appellant's motion to vacate an order granting, upon plaintiffs' default, defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants correctly served their notice of motion for summary judgment upon plaintiff's former counsel, which continued as her attorney of record, given that plaintiff failed to change counsel in the manner prescribed by CPLR 321(b)(1) (see Vitale v City Constr. Mgt. Co., 172 AD2d 326 [1991]; see also Splinters, Inc. v Greenfield, 63 AD3d 717, 719 [2009]). In any event, even if plaintiff provided a reasonable excuse for her default, she failed to demonstrate that her action has merit (see Carroll v Nostra Realty Corp., 54 AD3d 623 [2008], lv denied 12 NY3d 792 [2009]; see also Vargas v Ahmed, 41 AD3d 328, 329 [2007]). Indeed, her affidavit asserting the existence of bulging or herniated discs is not, in and of itself, "evidence of serious injury without competent objective evidence of the limitations and duration of the disc injury" (Rubencamp v Arrow Exterminating Co., Inc., 79 AD3d 509, 510 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 12, 2012

CLERK

20120612

© 1992-2012 VersusLaw Inc.



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