Opinion
2013-04-3
Rupert CASH, respondent, v. Hector ABRAHAM, appellant.
DeSena & Sweeney, LLP, Hauppauge, N.Y. (Shawn P. O'Shaughnessy of counsel), for appellant. Levine and Wiss, PLLC, Mineola, N.Y. (Anthony A. Ferrante of counsel), for respondent.
DeSena & Sweeney, LLP, Hauppauge, N.Y. (Shawn P. O'Shaughnessy of counsel), for appellant. Levine and Wiss, PLLC, Mineola, N.Y. (Anthony A. Ferrante of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Bayne, J.), dated September 14, 2012, which denied his 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) as a result of the subject accident.
ORDERED that the order is affirmed, with costs.
The defendant met his 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 defendant submitted competent medical evidence establishing, prima facie, that the alleged injuries to the lumbar region of the plaintiff's spine and to his right knee did not constitute serious injuries within the meaning 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 submitted evidence raising triable issues of fact as to whether he sustained a serious injury to the lumbar region of his spine ( see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424). Thus, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.