Breville v. Jerez

103 A.D.3d 605, 958 N.Y.S.2d 626

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 6, 2013
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Partnow, J.), dated May 22, 2012, 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) as a result of the subject accident.

Ordered that the order is affirmed, with costs.

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 raised a triable issue of fact as to whether he sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Burgos v Castro, 99 AD3d 848 [2012]). Accordingly, 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 was properly denied. Dillon, J.E, Hall, Roman and Cohen, JJ., concur.