Burke v. I Om Atif Hacking Corp.

Full title: Peter L. Burke, appellant, v. I Om Atif Hacking Corp., et al., respondents.

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Jan 11, 2017

2017 N.Y. Slip Op. 145 (N.Y. App. Div. 2017)

Opinion

2015-09495

01-11-2017

Peter L. Burke, appellant, v. I Om Atif Hacking Corp., et al., respondents.

Sim & Record, LLP, Bayside, NY (Sang J. Sim of counsel), for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, NY, of counsel), for respondents.

MARK C. DILLON, J.P.

L. PRISCILLA HALL SANDRA L. SGROI ROBERT J. MILLER VALERIE BRATHWAITE NELSON, JJ. (Index No. 18375/12)

Sim & Record, LLP, Bayside, NY (Sang J. Sim of counsel), for appellant.

Baker, McEvoy, Morrissey & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, NY, of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Silber, J.), dated July 24, 2015, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he 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 reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

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 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants submitted competent medical evidence establishing, prima facie, that the alleged injury to the cervical region of the plaintiff's spine did not constitute a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v Yshua, 59 AD3d 614). In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury to the cervical region of his spine (see Perl v Meher, 18 NY3d 208, 218-219).

Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.

DILLON, J.P., HALL, SGROI, MILLER and BRATHWAITE NELSON, JJ., concur. ENTER:

Aprilanne Agostino

Clerk of the Court