Ragabear v. Lallmahamad

90 A.D.3d 883, 935 N.Y.2d 77

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 2011
• Status: Published

Opinion

Upon reargument, the Supreme Court, inter alia, adhered to so much of its original determination as granted those branches of the separate motions of the defendant Faraz Lallmahamad, and the defendants Frank Caputo, Jr., and Theresa Cotrone (hereinafter collectively the defendants), which were for summary judgment dismissing so much of the complaint insofar as asserted by the plaintiff Gangawattie Charran as alleged that she sustained a serious injury to her right knee under the significant limitation of use and the permanent consequential limitation of use categories of Insurance Law § 5102 (d) insofar as asserted against each of them.

In opposition to the defendants’ prima facie showings that she did not sustain a serious injury to her right knee under those categories, Charran submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to her right knee constituted a serious injury under those categories of Insurance Law § 5102 (d) as a result of the subject accident (see McKenna v Williams, 89 AD3d 698 [2011]; Munoz u Irizarri, 87 AD3d 1056 [2011]; Awadh v Moronta, 86 AD3d 524 [2011]; Mitchell v Casa Redimix Concrete Corp., 83 AD3d 1015 [2011]; Dixon v Fuller, 79 AD3d 1094, 1094-1095 [2010]). Accordingly, the Supreme Court should have, upon re-argument, vacated the determination in the order dated June 29, 2010, granting those branches of the defendants’ separate motions which were for summary judgment dismissing so much of the complaint insofar as asserted by Gangawattie Charran as alleged that she sustained a serious injury to her right knee under the significant limitation of use and the permanent consequential limitation of use categories of Insurance Law § 5102 (d) insofar as asserted against each of them, and thereupon denied those branches of the separate motions. Rivera, J.E, Leventhal, Belen and Roman, JJ., concur. [Prior Case History: 2010 NY Slip Op 31619(U).]