Appellate Division of the Supreme Court of New York, 1999

Raso v. Statewide Auto Auction Inc.

Appellate Division of the Supreme Court of New York · Decided June 7, 1999

262 A.D.2d 387; 691 N.Y.S.2d 158; 1999 N.Y. App. Div. LEXIS 6389

Cases that cite this one

23 later published cases cite this decision.

Gualtieri v. Farina (District Court, S.D. New York 2003)
Calcagno v. New York City Transit Authority (Appellate Division of the Supreme Court of New York 2000)
Calcagno v. New York City Transit Authority (Appellate Division of the Supreme Court of New York 1999)
Nicola v. Nicolas (Appellate Division of the Supreme Court of New York 2022)
Bhuiyan v. Germain (Appellate Division of the Supreme Court of New York 2022)
Pouncey v. New York City Transit Authority (Appellate Division of the Supreme Court of New York 2016)
Kadashev v. Medina (Appellate Division of the Supreme Court of New York 2015)
Patterson v. Corner Rock Realty, Inc. (Appellate Division of the Supreme Court of New York 2010)
Djetoumani v. Transit, Inc. (Appellate Division of the Supreme Court of New York 2008)
Field v. Waldbaum, Inc. (Appellate Division of the Supreme Court of New York 2006)
Kearse v. New York City Transit Authority (Appellate Division of the Supreme Court of New York 2005)
A.B. Medical Services PLLC v. Travelers Property Casualty Corp. (Civil Court of the City of New York 2004)
Vucic v. Rodriguez (Appellate Division of the Supreme Court of New York 2003)
Pech v. Yael Taxi Corp. (Appellate Division of the Supreme Court of New York 2003)
Khalil v. Morris (Appellate Division of the Supreme Court of New York 2003)
Ayzen v. Melendez (Appellate Division of the Supreme Court of New York 2002)
Catapano v. Hitchings (Appellate Division of the Supreme Court of New York 2001)
Duldulao v. City of New York (Appellate Division of the Supreme Court of New York 2001)
Jackson v. New York City Transit Authority (Appellate Division of the Supreme Court of New York 2000)
Borino v. Little (Appellate Division of the Supreme Court of New York 2000)
Villalta v. Schechter (Appellate Division of the Supreme Court of New York 2000)
Sainte-Aime v. Ho (Appellate Division of the Supreme Court of New York 2000)
Perry v. Pagano (Appellate Division of the Supreme Court of New York 1999)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

—In an action to recover damages for personal injuries, etc., the defendant David R. Maltz & Co., Inc., appeals from (1) an order of the Supreme Court, Nassau County (DiNoto, J.), dated January 30, 1997, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it on the ground that it was not at fault in the happening of the accident, and (2) an order of the same court, dated October 22, 1997, which denied its cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it on the ground, inter alia, that the plaintiff Jeffrey Raso did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the orders are affirmed, with one bill of costs.

On May 10, 1994, the plaintiff Jeffrey Raso was attending an auction conducted by the appellant at the premises of the defendant Statewide Auto Auction, Inc. (hereinafter Statewide). One of the vehicles to be auctioned stalled. As the vehicle was being pushed to the auction block, it rolled over Raso’s left foot.

Since the appellant was conducting the auction, and, pursuant to a contract with Statewide, had “the exclusive right to determine the manner of and procedure” of the auction, there is an issue of fact as to whether the appellant was at fault in the happening of the accident.

With respect to whether Raso sustained a serious injury within the meaning of Insurance Law § 5102 (d), we note that the unsworn report of his treating physician was relied upon *388by the appellant, and therefore was properly before the court (see, Pietrocola v Battibulli, 238 AD2d 864). In the report, the treating physician objectively quantified restrictions in the range of motion of Raso’s foot. Thus, the appellant failed to establish its entitlement to judgment as a matter of law (see, Tsiamis v Wen Chaun Liu, 259 AD2d 746; Lombardi v Columbo, 259 AD2d 524; Ventura v Moritz, 255 AD2d 506).

Accordingly, the motions for summary judgment were properly denied. Ritter, J. P., Joy, Goldstein and Schmidt, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.