Jay Garay v Lenin R. Castillo

Garay v Castillo 2003 NY Slip Op 19453 [2 AD3d 578] December 15, 2003 Appellate Division, Second Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

Jay Garay et al., Appellants,
v
Lenin R. Castillo et al., Respondents.

—In an action to recover damages for personal injuries, etc., the plaintiff Jorge Vargas appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Kitzes, J.), entered September 24, 2002, as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted by him on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and the plaintiffs Jay Garay and Gladys Paredes also appeal from the same order.

Ordered that the appeals by the plaintiffs Jay Garay and Gladys Paredes are dismissed as abandoned for failure to perfect the same in accordance with the rules of this Court (see 22 NYCRR 670.8 [c], [e]); and it is further;

Ordered that the order is reversed insofar as appealed from by the plaintiff Jorge Vargas, that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted by Jorge Vargas is denied, and the complaint is reinstated insofar as asserted by that plaintiff.

The defendants failed to establish a prima facie case that the plaintiff Jorge Vargas did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ritter, J.P., Smith, Friedmann, H. Miller and Crane, JJ., concur.