Paul v. Allstar Rentals, Inc.

22 A.D.3d 476, 802 N.Y.S.2d 185

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 3, 2005
• Status: Published

Opinions

In an action to recover damages for personal injuries, the plaintiff Prevy Modestil appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Kitzes, J.), dated October 7, 2003, as granted those branches of the separate motions of the defendants Allstar Rentals, Inc., and Fern Romulus which were for summary judgment dismissing the complaint insofar as asserted by him against those defendants on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with one bill of costs, those branches of the separate motions of the defendants Allstar Rentals, Inc., and Fern Romulus which were for summary judgment dismissing the complaint insofar as asserted by the appellant against those defendants are denied, and the complaint insofar as asserted by the appellant against those defendants is reinstated.

The affirmations of the respondents’ orthopedist and neurologist were sufficient to make a prima facie showing that the plaintiff Prevy Modestil did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). However, contrary to the findings of the Supreme Court, the affirmations of Modestil’s treating physician and radiologist raised a triable issue of fact.

Accordingly, the Supreme Court erred in granting those branches of the respondents’ separate motions which were for summary judgment dismissing the complaint insofar as asserted by the appellant. H. Miller, J.P., S. Miller, Goldstein and Mastro, JJ., concur.