FAISAL CHOUDHURY v. ALISON H. MALONEY et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4438-04T34438-04T3

FAISAL CHOUDHURY,

Plaintiff-Appellant,

v.

ALISON H. MALONEY and

WILLIAM F. MALONEY, JR.,

Defendants-Respondents.

_____________________________________________________

 

Argued January 25, 2006 - Decided February 9, 2006

Before Judges Stern and Parker.

On appeal from the Superior Court of New

Jersey, Law Division, Middlesex County,

Docket No. 8196-03.

Robert J. Ferb argued the cause for appellant.

John F. Gillick argued the cause for respondents

(Martin Kane & Kuper, attorneys; Mr. Gillick,

on the brief).

PER CURIAM

Plaintiff appeals from an order of March 18, 2005, granting defendants' motion for summary judgment based on plaintiff's failure to meet the verbal threshold, N.J.S.A. 39:6A-8(a). Plaintiff argues that "based on the finding that the plaintiff satisfied the first prong of the Oswin test, summary judgment to the defendants must be reversed." See Oswin v. Shaw, 129 N.J. 290 (1992).

The motion judge concluded that "the first prong of the analysis under Oswin v. Shaw has been met, that there is objective credible medical evidence of . . . an injury that resulted from that." The judge thereafter found that the injury had impact on plaintiff's life, but concluded "I do not find that he has met the requirement of showing . . . a serious impact on his life to significant activities." Summary judgment was therefore granted.

 
After judgment was entered, the Supreme Court determined that the second, or serious life impact, prong of the Oswin test did not survive the adoption of the 1998 Automobile Insurance Cost Reduction Act, of which the threshold in N.J.S.A. 39:6A-8a is a part, see DiProspero v. Penn, 183 N.J. 477, 506 (2005), which has been given pipeline retroactive effect in Beltran v. Delima, 379 N.J. Super. 169, 176-77 (App. Div. 2005). Accordingly the judgment must be reversed, and the matter remanded for further proceedings in light of DiProspero.

Reversed and remanded.

There is no cross-appeal from that determination.

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A-4438-04T3

February 9, 2006