MORBAN v. NUNEZ

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Supreme Court, Appellate Division, First Department, New York.

Leonidas MORBAN, Plaintiff-Appellant, v. Federico NUNEZ, Defendant-Respondent.

Decided: October 21, 2004

NARDELLI, J.P., ANDRIAS, ELLERIN, GONZALEZ, CATTERSON, JJ. Dominick W. Lavelle, Mineola (Susan R. Nudelman of counsel), for appellant. Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), for respondent.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about May 16, 2003, which granted defendant's motion for summary judgment dismissing the complaint, and denied plaintiff's motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, defendant's motion denied, plaintiff's complaint reinstated, plaintiff's motion for partial summary judgment on the issue of liability granted as to the issue of fault, and the matter remanded for further proceedings.

Plaintiff was allegedly injured on September 3, 1999 when his car was rear-ended by defendant's vehicle.   The defendant moved for summary judgment and the dismissal of the complaint on the ground that plaintiff did not suffer a serious physical injury within the meaning of Insurance Law § 5102(d).  The court improperly granted defendant's motion as plaintiff's submissions in opposition to the motion raised a triable issue of fact as to whether plaintiff suffered a serious physical injury.   Furthermore, plaintiff's unopposed motion for partial summary judgment on the issue of liability should have been granted (see Mullen v. Rigor, 8 A.D.3d 104, 778 N.Y.S.2d 168 [2004];  Mitchell v. Gonzalez, 269 A.D.2d 250, 703 N.Y.S.2d 124 [2000] ).