DelGrosso v. Ljutich
Attorneys and Parties
Brief Summary
Personal injury—New York motor vehicle No-Fault serious injury threshold under Insurance Law § 5102(d) [defines the 'serious injury' threshold limiting tort recovery for motor vehicle accidents].
Granted defendant’s motion for summary judgment dismissing the complaint for failure to show a serious injury under Insurance Law § 5102(d).
The grant of summary judgment dismissing the complaint on serious-injury grounds.
Defendant failed to meet the prima facie burden on causation and the 90/180-day category: the motion papers did not address plaintiff’s claimed exacerbation of a preexisting left knee injury and did not eliminate triable issues on the 90/180-day limitation.
Background
Plaintiff, a pedestrian, was struck by defendant’s vehicle in November 2020 near his home. He alleged personal injuries, including an exacerbation of a preexisting left knee condition, and claimed a serious injury under the 90/180-day category. Defendant moved for summary judgment arguing plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d).
Lower Court Decision
The Supreme Court, Dutchess County, granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Appellate Division Reversal
Reversed insofar as appealed from, with costs; that branch of defendant’s motion for summary judgment on serious-injury grounds is denied. The Appellate Division held defendant did not make a prima facie showing because the submissions failed to address claimed exacerbation of a preexisting left knee injury (citing Petric v Retsina Cab Corp.; Boxwill v County of Nassau) and failed to eliminate triable issues on the 90/180-day category (citing Che Hong Kim v Kossoff). Under Winegrad v New York Univ. Med. Ctr., the motion should have been denied without regard to plaintiff’s opposition.
Legal Significance
Reaffirms that a defendant moving on the Insurance Law § 5102(d) threshold must affirmatively negate causation, including alleged exacerbation of preexisting conditions, and specifically address the 90/180-day category; failure to do so defeats the motion regardless of the plaintiff’s opposition.
On a serious-injury threshold motion, a defendant’s failure to address exacerbation and the 90/180-day claim means no prima facie showing—summary judgment must be denied.