Fitzgerald v. Czubek

104 A.D.3d 908, 960 N.Y.S.2d 905

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 27, 2013
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Rebolini, J.), dated December 21, 2011, as denied her cross motion for summary judgment dismissing the complaint on the ground that the plaintiff Nicola Fitzgerald 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 insofar as appealed from, with costs.

The defendant met her prima facie burden of showing that the plaintiff Nicola Fitzgerald (hereinafter the injured 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]). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and thoracolumbosacral regions of the injured plaintiffs spine, and to her right shoulder, did not constitute serious injuries within the meaning of Insurance Law § 5102 (d).

In opposition, however, the plaintiffs submitted evidence raising triable issues of fact as to whether the plaintiffs alleged injuries constituted serious injuries (see Perl v Meher, 18 NY3d 208, 218-219 [2011]). Thus, the Supreme Court properly denied the defendant’s cross motion for summary judgment dismissing the complaint.

The defendant’s remaining contentions are without merit. Angiolillo, J.R, Balkin, Austin and Miller, JJ., concur. [Prior Case History: 2011 NY Slip Op 33561(U).]