Bonifacio v. Mele

103 A.D.3d 765, 959 N.Y.S.2d 457

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 2013
• Status: Published

Opinion

an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Pineda-Kirwan, J.), dated February 17, 2012, which granted the defendants’ 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) as a result of the subject accident.

Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is denied.

The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition, however, the plaintiff submitted evidence raising triable issues of fact as to whether he sustained a serious injury to his left shoulder (see Perl v Meher, 18 NY3d 208, 218-219 [2011]). Accordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint. Dillon, J.P., Hall, Roman and Cohen, JJ., concur.