Opinion
2015-11-4
Rafael BATISTA, respondent, v. Roy C. LEVERIDGE, appellant.
Katz & Associates (David S. Klausner, PLLC, White Plains, N.Y. [Stephen Slater], of counsel), for appellant. Gratt & Associates, P.C., Brooklyn, N.Y. (Edward J. Anthony of counsel), for respondent.
Katz & Associates (David S. Klausner, PLLC, White Plains, N.Y. [Stephen Slater], of counsel), for appellant. Gratt & Associates, P.C., Brooklyn, N.Y. (Edward J. Anthony of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated October 24, 2014, as denied those branches of his motion which were for summary judgment dismissing so much of the complaint as alleged that the plaintiff sustained serious injuries to his left knee and right shoulder within the meaning of Insurance Law § 5102(d) as a result of the subject accident.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendant established, prima facie, that the plaintiff did not sustain a serious injury to his left knee and right shoulder 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). In opposition, however, the plaintiff raised a triable issue of fact ( see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424). LEVENTHAL, J.P., AUSTIN, ROMAN, MILLER and BARROS, JJ., concur.