Kuznetzov v. Cuccia

8 A.D.3d 244, 777 N.Y.S.2d 318, 2004 N.Y. App. Div. LEXIS 7512

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 1, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated September 12, 2003, which denied his 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.

The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). However, the affirmations of the plaintiff’s physicians submitted in opposition to the defendant’s motion raised a triable issue of fact as to whether the plaintiff sustained a serious injury (see Toure v Avis Rent A Car Sys., supra; Rahman v Brown, 6 AD3d 518 [ 2004]).

Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint. Ritter, J.P., S. Miller, Townes, Crane and Rivera, JJ., concur.