Beckett v. Ishmael

299 A.D.2d 382, 749 N.Y.S.2d 425

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 2002
• Status: Published

Opinion

In an action, inter alia, to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Kitzes, J.), dated February 19, 2002, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

While the medical evidence submitted by the defendants in support of their motion established, prima facie, that the plaintiff’s injuries were not serious (see Gaddy v Eyler, 79 NY2d 955, 956-957), the evidence submitted by the plaintiff in opposition thereto raised a triable issue of fact as to whether he sustained a medically determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for the statutory period (see Connors v Center City, 291 AD2d 476, 477). Santucci, J.P., Smith, Goldstein, H. Miller and Mastro, JJ., concur.