June v Akhtar - Techno Cab, Inc.

Motion No: M-2835

Slip Opinion No: 2009 NY Slip Op 87160(U)

Decided on October 29, 2009

Appellate Division, First Department, Motion Decision

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This motion is uncorrected and is not subject to publication in the Official Reports.

October 29, 2009

June v Akhtar - Techno Cab, Inc.

Leave to appeal to the Court of Appeals denied. All concur except McGuire, J., who dissents as follows:

I respectfully dissent from the denial of leave to appeal to the Court of Appeal from our order affirming the denial of defendants' motion for summary judgment seeking dismissal of the complaint for lack of a serious injury under Insurance Law § 5102 (d). Although I continue to believe, for the reasons stated in my dissent from that order, June v Akhtar (62 AD3d 427, 428 [2009]), that the majority erred, I would not grant leave to appeal solely for that reason, even though defendants needlessly would be forced to undergo the expense of a trial as they cannot obtain leave to appeal from our order from the Court of Appeal (see CPLR 5602 [a][1][i]). Nor would I grant leave solely because that order rests on a proposition of law (i.e., that the nature of the prima facie case a defendant must establish in seeking dismissal of a claim of serious injury

under Insurance Law § 5102 (d) varies with the age of the plaintiff) that is without any support in the law. Rather, I would grant leave because that proposition of law threatens the just resolution of motions for summary judgment in other serious injury cases.

Before: Gonzalez, P.J., McGuire, Moskowitz, DeGrasse, Freedman, JJ.

Motion No. M-2835