Justice F. Dana Winslow
Defendants moved for leave to reargue a previously denied summary judgment motion. They sought summary judgment arguing plaintiffs failed to establish they sustained a serious injury as defined under Insurance Law §5102(d), and Brandi Bell was exculpated from liability as the accident was caused by an unforeseen "Act of God" in that Brandi lost consciousness before the accident. In the prior decision the court stated defendants' argument the accident was an act of god had no bearing on whether plaintiffs sustained a serious injury. Plaintiffs did not oppose reargument, but argued that upon same, defendants were not entitled to summary judgment on liability as they failed to submit any medical proof showing Brandi was diagnosed as having a vasovagal attack. The court granted reargument noting it may not have clearly addressed or articulated the act of god defense. Yet, upon same, it found defendants failed to make prima facie showing of entitlement against plaintiffs on liability, requiring denial of that branch of the motion. The court stated defendants failed to show the accident was caused as a result of an onset of a sudden, unforeseeable medical emergency. It ruled triable issues existed if Brandi suffered an unforeseeable medical emergency, denying summary judgment.
