Ciolino v Rooney

[*1] Ciolino v Rooney 2005 NY Slip Op 50564(U) Decided on February 15, 2005 Supreme Court, Suffolk County Berler, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 15, 2005
Supreme Court, Suffolk County

Joseph Ciolino, Plaintiff,

against

Patrick J. Rooney, et. al., Defendants.



4484/01



PLTF'S/PET'S ATTY:

Cronin & Byczek, LLP

1981 Marcus Ave.

Lake Success, NY 11042

DEFT'S/RESP'S ATTY:

Robert J. Passarelli,Esq.

122 West Main St.

Babylon, NY 11702

Howard Berler, J.

Upon papers submitted(notice of motion with supporting papers, notice of cross motion and opposition with supporting papers) it is

ORDERED that the motion to reargue is granted, and it is further

ORDERED that upon re-argument the defendants' motion for summary judgment is denied, and it is further

ORDERED that the plaintiff's cross motion is denied.

It appears that a reply to the original motion was not considered, warranting the granting of re-argument. CPLR 2221. However, even with the clarification about the accident and the [*2]date of returning to work, the motion must still be denied. As the original decision noted, the defendant has the burden to negate, as a matter of law, the 90/180 day category of serious injury under the Insurance Law. The defendants argue that the Court of Appeals in Toure v. Avis Rent A Car System, 98 NY2d 345, requires a different result. The Toure decision involved three separate appeals. The language that the defendants refer involved the appeal of the case of Nitti v. Clerrico, which resulted in a plaintiff's verdict, and not a motion for summary judgment. In such a procedural posture the defendant would be correct that it is the plaintiff's burden. However, with respect to a motion for summary judgment the initial burden is upon the defendant. See, e.g. Daley v. Shahzad, - AD3d -, 2004 WL 2954910(N.Y.A.D. 2 Dept. Dec 20, 2004); Omar v. Bello, - AD3d -, 2004 WL 2892882(N.Y.A.D. 2 Dept. Dec 13, 2004); Coscia v. 938 Trading Corp., 283 AD2d 538. Consequently, summary judgment cannot be granted.[FN1]

As for the cross motion, the defendants have conceded the issue of liability. Moreover, there is clearly an issue of fact as to whether the plaintiff suffered a serious injury.

The foregoing constitutes the decision and order of the Court.

Dated:___________________ _______________________________________

HOWARD BERLER, J.S.C.

FINAL DISPOSITION X NON-FINAL DISPOSITION

Footnotes

Footnote 1:. The defendant is correct that the gap in treatment would negate any other category.