Opinion
2002-05223.
Submitted March 5, 2003.
April 7, 2003.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Berler, J.), entered May 9, 2002, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d).
Miller Eisenman, LLP, New York, N.Y. (Michael P. Eisenman of counsel), for appellants.
Sobel Kelly, P.C., Huntington, N.Y. (Linda M. Garger of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY, ROBERT W. SCHMIDT, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated. The defendant established prima facie entitlement to summary judgment dismissing the complaint by submitting, among other things, affirmations by his examining physician which indicated that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) (see Gaddy v. Eyler, 79 N.Y.2d 955; Kallicharan v. Sooknanan, 282 A.D.2d 573; Santoro v. Daniel, 276 A.D.2d 478). However, the plaintiffs successfully opposed the motion by raising triable issues of fact with the affidavits of Dr. K. Kazan, as to whether the motor vehicle accident caused them serious injuries (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345). Accordingly, the Supreme Court improperly granted the defendant's motion for summary judgment.
SANTUCCI, J.P., KRAUSMAN, McGINITY, SCHMIDT and CRANE, JJ., concur.