Despinos–Cadet v. Stein, A.D.3d 978, 177 N.Y.S.3d 320 (2d Dept Oct. 26, 2022)

Court’s reasoning in overturning summary judgment in favor of defendant, finding an issue of fact as to whether plaintiff suffered a serious injury pursuant to NY Ins. Law § 5102, could open door to opposing summary judgment in liability cases.

At its heart, this decision is fairly simple—the Appellate Division determined the plaintiff is not entitled to summary judgment because an issue of fact remained as to whether the defendant was liable for the collision, and an issue of fact remained as to whether the plaintiff had suffered a serious injury as contemplated by Section 5102 of the New York State Insurance Law. However, insurance defense attorneys, particularly in transportation, have been fighting uphill against the New York Court of Appeals decision in Rodriguez v. City of New York, 331 N.Y.3d 312, 76 N.Y.S.3d 898 (2018), which, for all intents and purposes, established that plaintiffs could win summary judgment, and 9% per annum interest, almost at the onset of clear liability cases. In Rodriguez, New York State’s high court ruled that a plaintiff’s comparative fault was only relevant as a measure of damages; therefore, if a defendant did not have a non-negligent defense, the same plaintiff could win summary judgment when discovery is still in its infancy, even if a plaintiff is ultimately found to be the majority fault for their own accident. The reasoning in this decision could turn the tables as proving a serious injury under New York law beyond a jury’s ability to reject a plaintiff’s injury claims on its face appears to be an incredibly high standard. If the lack of a serious injury finding can preclude summary judgment, it is possible the recent rash of “Rodriguez motions” in motor vehicle cases could be defeated by a simple expert affidavit provided after a review of preliminary medical records.


Case Law Alerts, 1st Quarter, January 2023 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2032 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.