A dismissal order against a plaintiff for failure to sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of a motor vehicle accident stands as the law of the case, precluding the plaintiff from proceeding against all defendants, whether they joined the motion for dismissal or elected to sit on the sidelines and await the decision of the Court. After all, if the Court found the plaintiff could not sustain a breach of the serious injury threshold as to one defendant, how could that plaintiff present a prima facie case v. the non-moving defendants. Sounds reasonable? NO! c.f. Ciaravino v Brody, decided on February 24, 2016, (2016 NY Slip Op 01284) by the Appellate Division, Second Department. Here the lower court found:
"Based on the foregoing, it is the opinion of this Court that defendants have met their prima facie burden of demonstrating a right to judgment as a matter of law through the submission of competent medical evidence establishing that the plaintiff did not sustain any injury to, e.g., her cervical spine or left knee, sufficient to meet the statutory threshold of "serious injury." (see Insurance Law §5102[d] Felix v. Duane, 117 AD 3d 780 [2d Dept. 2014]; Burgett v. Schaffhauser, 114 AD 3d 822 [2d Dept. 2014]).... In the opinion of this Court, plaintiff's failure to establish a "serious injury" requires dismissal of the complaint, even as to the non-moving defendants (see CPLR 3212[b])."
How can the plaintiff appeal the order only against the non-moving defendants, who were not part of the motion below? Here, the Appellate Court decided, "the Supreme Court should not have searched the record and awarded the non-moving defendants summary judgment dismissing the complaint in Action No. 2 insofar as asserted against them." The Court revived the case as to the one defendant noting, "the plaintiff raised a triable issue of fact as to whether she sustained serious injuries to the cervical and lumbar regions of her spine under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d), and as to whether these alleged injuries, as well as the alleged injury to her left knee, were caused by the accident. (see Perl v Meher, 18 NY3d 208, 218-219)".
What happens to the defendants who were let out of the case below and did not participate in the appeal? Can the non-moving defendants now implead them for contribution, on a case where they prevailed below? Stay tuned on this one for the motion to re-argue.
Read the decision here.