Palumbo v. Carey

*628The Supreme Court should have granted that branch of the plaintiffs motion which was, in effect, pursuant to CPLR 3211 (b) to dismiss the sixth affirmative defense alleging the lack of a serious injury within the meaning of Insurance Law § 5102 (d). The verified complaint, the police accident report, and the deposition testimony of the parties all indicated that the subject accident took place in New Jersey, and the defendants did not argue to the contrary in opposition to the plaintiffs motion, nor did they present any evidence suggesting that the accident may have occurred in New York.…