Appellate Court Unanimously Affirms Summary Judgment on Serious Injury Threshold

Avgush v. Jerry Fontan, Inc., et al., ___ A.D.3d ___ (1st Dep't 2018)

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New York's Appellate Division, First Department, unanimously affirmed summary judgment dismissing an action brought in notoriously plaintiff-friendly Bronx County.

The details of the accident were previously reported in these pages. (See "Defendants granted summary judgment in claim for permanent loss of vocal cords and speech from auto accident", Newswire 9/7/2016.)

First, defense counsel argued and the Appellate Division agreed that the plaintiff's appeal was untimely, finding that the short delay in filing the Notice of Appeal was not supported by plaintiff's excuse for the delay. However, the court also noted that "[H]ad the appeal not been dismissed as untimely, we would affirm the order at issue."

In affirming the trial court's order granting summary judgment and dismissal of plaintiff's complaint on the "serious injury" threshold, the Appellate Division held that plaintiff had failed to submit medical evidence to raise a triable issue of fact as to whether he sustained any serious injury causally related to the subject accident.

AGF&J associate Jay Gunsher was on the Respondent's Brief.