Jones v. Hoaue

78 A.D.3d 657, 909 N.Y.S.2d 917

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 3, 2010
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Starkey, J.), dated December 2, 2009, as denied their motion for summary judgment dismissing the complaint on the ground that Marsha Stein did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendants met their prima facie burden of showing that Marsha Stein 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, the plaintiff raised a triable issue of fact as to whether Marsha Stein sustained a serious injury to the cervical and/or lumbar regions of her spine as a result of the subject accident (see Evans v Pitt, 77 AD3d 611 [2010]; Tai Ho Kang v Young Sun Cho, 74 AD3d 1328 [2010]).

Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint. Rivera, J.P., Covello, Eng, Leventhal and Austin, JJ., concur.