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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5217-03T55217-03T5

CHRISTOPHER TANG, JR.,

Plaintiff-Appellant,

v.

LISA N. GALUCCI and

JAMES L. LEONE,

Defendants-Respondents.

_______________________________________


Argued September 28, 2005 - Decided

Before Judges Conley and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Camden County,

L-8043-02.

Adam D. Wilf argued the cause for appellant (Lundy Law Offices, attorneys; Mr. Wilf, on the brief).

Alan G. Giebner argued the cause for respondent Lisa N. Galucci (Buonadonna, Benson & Parenti, attorneys; Mr. Giebner, on the brief).

Eric J. Appelbaum argued the cause for respondent James L. Leone (Kent & McBride, attorneys; Mr. Appelbaum, on the brief).

PER CURIAM

Plaintiff, Christopher Tang, appeals from the entry of summary judgment dismissing his complaint for failure to present sufficient evidence that the injuries he sustained as a result of a January 30, 2001, motor vehicle accident had a serious impact upon his life pursuant to Oswin v. Shaw, 129 N.J. 290 (1992).

On appeal, plaintiff challenges the applicability of the serious impact prong of Oswin to the no-fault statute as amended by the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. Plaintiff also contends, should this court conclude the serious impact prong is applicable, the evidence presented to the trial court demonstrates that the injuries had a significant impact upon his life.

While this appeal was pending, the Court decided DiProspero v. Penn, 183 N.J. 477 (2005), holding that AICRA does not require plaintiffs to provide evidence of a serious impact to survive summary judgment. Id. at 506; Beltran v. DeLima, 379 N.J. Super. 169, 176-77 (App. Div. 2005). Therefore, the decision of the trial court granting summary judgment on the serious impact prong is reversed.

In light of this determination, it is unnecessary to address defendants' contention that plaintiff's sworn affidavit was a "sham" affidavit under Shelcusky v. Garjulio, 172 N.J. 185 (2002).

Defendants, however, urge that if the trial court erred in granting summary judgment on the serious impact prong of Oswin, summary judgment was appropriate on yet another ground. Specifically, defendants contend plaintiff's doctors failed to perform the requisite comparative analysis distinguishing the injuries sustained in the December 1998 accident and the injuries sustained in the subsequent April 2001 accident from those plaintiff sustained in the January 2001 accident, Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993).

Although the judge acknowledged defendants' contention that no Polk analysis was conducted, she was unclear as to whether it applied and found that plaintiff had satisfied the first prong, thereby implicitly rejecting defendants' argument. Defendants did not file a cross-appeal from that determination. Thus, they are precluded from raising this point on appeal. Burbridge v. Paschal, 239 N.J. Super. 139, 151 (App. Div. 1990), certif. denied, 122 N.J. 360 (1990).


We reverse the summary judgment and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

(continued)

(continued)

3

A-5217-03T5

October 6, 2005




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