Opinion
2013-01-30
Rusbel A. TRUJILLO, respondent, v. Jason F. SCHATZEL, appellant.
David J. Sobel, P.C., Smithtown, N.Y., for appellant. Steven D. Dollinger, Huntington Station, N.Y. (Susan R. Nudelman of counsel), for respondent.
David J. Sobel, P.C., Smithtown, N.Y., for appellant. Steven D. Dollinger, Huntington Station, N.Y. (Susan R. Nudelman of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Pitts, J.), dated June 20, 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 did not constitute serious injuries within the meaning of Insurance Law § 5102(d) ( see Fudol v. Sullivan, 38 A.D.3d 593, 594, 831 N.Y.S.2d 504).
In opposition, however, the plaintiff submitted evidence raising triable issues of fact as to whether he sustained serious injuries ( see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424). Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.