MOWTON v. RABINER

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

Christine MOWTON, et al., appellants, v. Harold RABINER, et al., respondents.

Decided: May 29, 2007

WILLIAM F. MASTRO, J.P., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN, and EDWARD D. CARNI, JJ. Gruenberg & Kelly, P.C., Ronkonkoma, N.Y. (Guy Gruenberg and Peter Lavrenchik of counsel), for appellants. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Richard E. Lerner and Bianca Michelis of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated January 23, 2006, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is denied.

The plaintiffs commenced this action to recover damages, inter alia, for personal injuries allegedly sustained when, on July 13, 2003, while driving through the intersection of Babylon Turnpike and Sunrise Highway in Merrick, their car was struck by a car driven by the defendant Harold Rabiner, and owned by the defendant Wanda W. Rabiner.   The defendants moved for summary judgment dismissing the complaint, asserting that the accident arose as a result of a sudden and unforeseeable medical emergency suffered by Harold Rabiner at the time of the accident.

The defendants did not demonstrate their prima facie entitlement to summary judgment because they failed to establish their claim “by competent or expert medical evidence” (Parisella v. Jack Haverty's Auto Parts, 296 A.D.2d 539, 540, 745 N.Y.S.2d 494;  cf. Hernandez v. Ricci, 15 A.D.3d 351, 788 N.Y.S.2d 867;  McGinn v. New York City Tr. Auth., 240 A.D.2d 378, 379, 658 N.Y.S.2d 121).   Since the defendants did not meet their burden, there is no need to address the sufficiency of the plaintiffs' submissions in opposition to the defendants' motion (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).   Accordingly, the defendants' motion should have been denied.

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