Farina v. Rafferty

Full title: Thomas H. Farina, respondent, v. Brendan A. Rafferty, et al., appellants.

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

Date published: Jan 13, 2016

2016 N.Y. Slip Op. 149 (N.Y. App. Div. 2016)

Opinion

2015-03052

01-13-2016

Thomas H. Farina, respondent, v. Brendan A. Rafferty, et al., appellants.

Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Marshall D. Sweetbaum], of counsel), for appellants. Tracy, Stilwell & Parrinello, PC, Staten Island, NY (Gaetano Parrinello of counsel), for respondent.

WILLIAM F. MASTRO, J.P.

L. PRISCILLA HALL

SANDRA L. SGROI

COLLEEN D. DUFFY, JJ. (Index No. 100752/13)

Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Marshall D. Sweetbaum], of counsel), for appellants.

Tracy, Stilwell & Parrinello, PC, Staten Island, NY (Gaetano Parrinello of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Richmond County (Minardo, J.), dated January 21, 2015, 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) as a result of the subject accident.

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 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 lumbar 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), and that, in any event, the alleged injury was not caused by the subject accident (see generally Jilani v Palmer, 83 AD3d 786, 787).

In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury to the lumbar region of his spine under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d), and as to whether the alleged injury was caused by the accident (see Perl v Meher, 18 NY3d 208, 218-219). Thus, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.

MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court