Mauro v. Gold Star Limo Corp.

8 A.D.3d 352, 777 N.Y.S.2d 733, 2004 N.Y. App. Div. LEXIS 7870

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendants appeal from so much of an order of the Supreme Court, Richmond County (Minardo, J.), dated May 23, 2003, as granted that branch of the plaintiffs’ motion which was for leave to reargue the defendants’ prior motion for summary judgment dismissing the complaint on the ground that the plaintiff Linda Mauro did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and upon reargument, denied their motion for summary judgment.

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

The defendants made a prima facie showing that the plaintiff Linda Mauro 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 plaintiffs’ physicians, identifying limitations in motion of Mauro’s cervical and lumbar spines and jaw, submitted in opposition to the defendants’ motion, were adequate to raise a triable issue of fact as to whether Mauro sustained a serious injury.

Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment upon reargument. Florio, J.P., Krausman, Townes, Mastro and Fisher, JJ., concur.