Altamura v OneBeacon Ins. Group

Altamura v OneBeacon Ins. Group 2009 NY Slip Op 09171 [68 AD3d 792] December 8, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Michelle Altamura, Respondent,
v
OneBeacon Insurance Group, Appellant.

—[*1] DeCicco, Gibbons & McNamara, P.C., New York, N.Y. (Joseph T. Gibbons and Ankur H. Doshi of counsel), for appellant.

Everett J. Petersson, P.C., Brooklyn, N.Y., for respondent.

In an action, inter alia, to recover damages for breach of the supplemental underinsured motorist provision of an insurance policy, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated December 17, 2008, as granted that branch of the plaintiff's motion which was for summary judgment on the issue of serious injury.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was for summary judgment on the issue of serious injury is denied.

The plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Since the plaintiff failed to meet her prima facie burden, we need not consider the sufficiency of the defendant's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Accordingly, the Supreme Court should have denied that branch of the plaintiff's motion which was for summary judgment on the issue of serious injury. Dillon, J.P., Dickerson, Belen and Roman, JJ., concur.