Panichi v. Financial Services Vehicle Trust

5 A.D.3d 646, 774 N.Y.S.2d 748

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants Lawrence E. Fabian and Franeine Fabian appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Lifson, J.), dated February 25, 2003, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff Judith M. Panichi 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 appellants made a prima facie showing that the injured 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 injured plaintiffs physicians submitted in opposition to the appellants’ motion were sufficient to raise a triable issue of fact as to whether she sustained a serious injury.

Accordingly, the Supreme Court properly denied the appellants’ motion. Altman, J.P., Krausman, Goldstein and Mastro, JJ., concur.