Erol Gurcan Defeats Plaintiff’s Appeal In Pedestrian Knockdown Case In Second Department

On September 25, 2019, Erol Gurcan prevailed on appeal in Cherry v. Longo, 175 A.D.3d 1481, 109 N.Y.S.3d 464 (2nd Dep’t 2019). The plaintiff, a pedestrian, claimed she was struck by a vehicle driven by our client. The plaintiff died three weeks after the accident, and the cause of death was listed on the death certificate as “Sickle – Hemoglobin C (Sc) Disease.” The plaintiff claimed to have sustained injuries to her hip and ankle, but not that her death was caused by the accident. Mr. Gurcan moved for summary judgment to dismiss the plaintiff’s case in the Court below arguing that the plaintiff did not sustain a “serious injury” within the meaning of Insurance Law 5102(d). The plaintiff opposed the motion, and sought leave to serve an amended bill of particulars to allege that the death was causally related to the accident. The plaintiff offered an expert affidavit that sickle cell disease could not have been the sole cause of her death, and that the trauma could leads to changes in her blood that could cause death. The Second Department upheld the decision of the court below that denied the plaintiff’s motion to amend her bill of particulars finding that the plaintiff failed to offer a sufficient reason to failing to supplement her bill of particulars within the Court’s deadline, and upheld the dismissal of the case because the plaintiff did not sustain a “serious injury.”