Opinion
2001-07628
Submitted May 15, 2002.
February 18, 2003.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Palmieri, J.), dated June 28, 2001, which granted the motion of the defendants Bernice Powell and Arthur Hayes, Jr., 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).
Dominick W. Lavelle, Mineola, N.Y., for appellant.
Curtis, Vasile, Devine McElhenny, Merrick, N.Y. (Robert M. Smith of counsel), for respondents.
Before: MYRIAM J. ALTMAN, J.P., SANDRA J. FEUERSTEIN, WILLIAM D. FRIEDMANN, ROBERT W. SCHMIDT, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated insofar as asserted against the respondents.
The respondents demonstrated their prima facie entitlement to judgment as a matter of law (see Gaddy v. Eyler, 79 N.Y.2d 955; Napoli v. Cunningham, 273 A.D.2d 366). However, in response thereto, the plaintiff raised a triable issue of fact (see generally Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345). Therefore, the Supreme Court improperly granted the respondents' motion for summary judgment dismissing the complaint.
ALTMAN, J.P., FEUERSTEIN, FRIEDMANN, SCHMIDT and TOWNES, JJ., concur.