Jamison v Garcia

Jamison v Garcia 2007 NY Slip Op 05229 [41 AD3d 542] June 12, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 15, 2007

Cynthia Jamison, Respondent,
v
Noe Garcia et al., Defendants, and Akhnaton Gomez et al., Appellants.

—[*1] DeSena & Sweeney, LLP, Hauppauge, N.Y. (Anne Marie Caradonna of counsel), for appellants.

Razis & Ross, P.C., Astoria, N.Y. (George Razis and Elena Razis of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants Akhnaton Gomez and Jorge Gomez appeal from so much of an order of the Supreme Court, Queens County (Polizzi, J.), dated August 22, 2006, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed insofar as appealed from, with costs.

The appellants established, prima facie, their entitlement to summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The plaintiff, however, raised a triable issue of fact as to whether she lost her fetus due to this accident rather than as a result of a voluntary termination of pregnancy (see Yu v C & A Seneca Constr., 40 AD3d 630 [2007]; Berkshire Nursing Ctr., Inc. v Novello, 13 AD3d 327, 328-329 [2004]). [*2]

The appellants' remaining contention regarding the disposition of the codefendants' cross motion is not before us on this appeal. Crane, J.P., Santucci, Florio, Dillon and Balkin, JJ., concur.