Opinion
No. 2009-10207.
June 15, 2010.
In an action to recover damages for personal injuries, the defendant J. Rodriguez-Rosario appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Baiter, J.), dated September 1, 2009, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Baker, McEvoy, Morrissey Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel), for appellant.
Block, O'Toole Murphy LLP, New York, N.Y. (Kareem R. Vessup of counsel), for respondent.
Before: Covello, J.P., Angiolillo, Leventhal and Roman, JJ.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly determined that the appellant 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 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). However, in opposition, the plaintiff raised triable issues of fact.
Accordingly, the Supreme Court properly denied the appellant's motion.