Opinion
2011-11-29
Donna HENIG, respondent, v. Fern AVANA, et al., appellants.
John C. Buratti & Associates, Hicksville, N.Y. (Alan M. Shushan of counsel), for appellants. Arthur Levine, Garden City, N.Y., for respondent.
John C. Buratti & Associates, Hicksville, N.Y. (Alan M. Shushan of counsel), for appellants. Arthur Levine, Garden City, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered April 13, 2011, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The plaintiff alleged, inter alia, that as a result of the subject accident, the lumbosacral region of her spine sustained certain injuries. The defendants submitted competent medical evidence establishing, prima facie, among other things, that the alleged injuries to that region of her spine were not caused by the subject accident ( see Pommells v. Perez, 4 N.Y.3d 566, 579, 797 N.Y.S.2d 380, 830 N.E.2d 278; Gentilella v. Board of Educ. of Wantagh Union Free School Dist., 60 A.D.3d 629, 629–630, 875 N.Y.S.2d 128).
However, in opposition, the plaintiff submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the lumbosacral region of her spine were caused by the subject accident ( see Sforza v. Big Guy Leasing Corp., 51 A.D.3d 659, 660–661, 858 N.Y.S.2d 233). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.