Kurtanidze v Fasino
Attorneys and Parties
Brief Summary
Personal injury—New York No-Fault 'serious injury' threshold under Insurance Law § 5102(d) [statutory threshold defining 'serious injury' required to recover noneconomic damages in motor vehicle accidents].
Granted summary judgment to the defendant on the ground the plaintiff did not sustain a serious injury under Insurance Law § 5102(d), and declined to consider plaintiff’s opposition for lack of a word-count certification under 22 NYCRR 202.8-b(c) [rule requiring a word-count certification for motion/opposition papers].
The order granting the defendant’s summary judgment motion and dismissing the complaint as to him.
The trial court should have overlooked the technical filing defect and considered the opposition; on the merits, while the defendant met his prima facie burden, the plaintiff’s evidence raised a triable issue of fact regarding a serious injury to the cervical spine under the significant limitation of use category.
Background
Plaintiff alleged cervical spine injuries from a motor vehicle accident and sued to recover personal injury damages. Defendant Fasino moved for summary judgment, arguing plaintiff did not meet the Insurance Law § 5102(d) serious injury threshold.
Lower Court Decision
The Supreme Court, Kings County, granted the defendant’s motion for summary judgment, finding no serious injury under Insurance Law § 5102(d), and refused to consider plaintiff’s opposition for failure to include a word-count certification as required by 22 NYCRR 202.8-b(c).
Appellate Division Reversal
Reversed. The Appellate Division held the trial court should have disregarded the technical defect and considered the opposition (relying on Anuchina and Abramowitz). Although the defendant made a prima facie showing (citing Toure; Gaddy; Staff v Yshua), the plaintiff’s submissions created a triable issue of fact as to a significant limitation of use of the cervical spine (citing Perl v Meher). The motion should have been denied.
Legal Significance
Reaffirms that courts should overlook minor, nonprejudicial filing defects and consider the merits; clarifies that objective medical evidence raising a triable issue under the significant limitation category of Insurance Law § 5102(d) defeats summary judgment even after a defendant’s prima facie showing.
Technical noncompliance with word-count certification should not bar consideration of opposition papers, and plaintiffs can defeat no-fault threshold summary judgment with competent evidence showing a triable issue of significant limitation to the cervical spine.