Opinion
2015-11583. Index No. 1043/11.
08-30-2017
Johnny BAULETE, respondent, v. L&N CAR SERVICE, INC., et al., appellants, et al., defendant.
Marjorie E. Bornes, Brooklyn, NY, for appellants.
Marjorie E. Bornes, Brooklyn, NY, for appellants.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, BETSY BARROS, and VALERIE BRATHWAITE NELSON, JJ.
In an action to recover damages for personal injuries, the defendants L&N Car Service, Inc., and Albertano Batista appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated August 6, 2015, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury 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, without costs or disbursements.
The defendants L&N Car Service, Inc., and Albertano Batista (hereinafter together the appellants) 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 appellants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine and to the plaintiff's left shoulder did not constitute serious injuries under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180 ).
In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained serious injuries to the cervical and lumbar regions of his spine and to his left shoulder under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) (see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424 ).
Accordingly, the Supreme Court properly denied the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.