Torres v. Szafranski

304 A.D.2d 559, 756 N.Y.S.2d 905

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Berler, J.), entered May 9, 2002, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The defendant established prima facie entitlement to summary judgment dismissing the complaint by submitting, among other things, affirmations by his examining physician which indicated that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) (see Gaddy v Eyler, 79 NY2d 955 [1992]; Kallicharan v Sooknanan, 282 AD2d 573 [2001]; Santoro v Daniel, 276 AD2d 478 [2000]). However, the plaintiffs successfully opposed the motion by raising triable issues of fact with the affidavits of Dr. K. Kazan, as to whether the motor vehicle accident caused them serious injuries (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). Accordingly, the Supreme Court improperly granted the defendant’s motion for summary judgment. Santucci, J.P., Krausman, McGinity, Schmidt and Crane, JJ., concur.