Opinion
2013-04-3
Leron J. WILLIAMS, appellant, v. Cynthia Estelle ZAMORA, et al., respondents.
James J. Killerlane, White Plains, N.Y. (David Samel of counsel), for appellant. Mead, Hecht, Conklin & Gallagher, LLP, White Plains, N.Y. (Kevin T. Conklin and Sara Luca Salvi of counsel), for respondents Cynthia Estelle Zamora and Yinaina Dominguez.
James J. Killerlane, White Plains, N.Y. (David Samel of counsel), for appellant. Mead, Hecht, Conklin & Gallagher, LLP, White Plains, N.Y. (Kevin T. Conklin and Sara Luca Salvi of counsel), for respondents Cynthia Estelle Zamora and Yinaina Dominguez.
Vouté, Lohrfink, Magro & McAndrew, LLP, White Plains, N.Y. (John R. Braunstein of counsel), for respondent Falk Mexhuani.
PETER B. SKELOS, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, and SYLVIA HINDS–RADIX, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Tolbert, J.), dated January 18, 2012, which granted the motion of the defendant Falk Mexhuani for summary judgment dismissing the complaint insofar as asserted against him, and that branch of the separate motion of the defendants Cynthia Estelle Zamora and Yinaina Dominguez which was 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) as a result of the subject accident.
ORDERED that the order is reversed, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and the motion of the defendant Falk Mexhuani for summary judgment dismissing the complaint insofar as asserted against him, and that branch of the separate motion of the defendants Cynthia Estelle Zamora and Yinaina Dominguez which was for summary judgment dismissing the complaint insofar as asserted against them, are denied.
The defendants, moving separately but relying on the same evidence and arguments, met their respective prima facie burdens 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 defendants submitted competent medical evidence establishing, prima facie, that the plaintiff did not sustain serious injuries within the meaning of Insurance Law § 5102(d) ( see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180). In opposition, however, the plaintiff submitted evidence raising triable issues of fact as to whether he sustained a serious injury ( see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424). Thus, the Supreme Court should have denied the motion of the defendant Falk Mexhuani for summary judgment dismissing the complaintinsofar as asserted against him, and that branch of the separate motion of the defendants Cynthia Estelle Zamora and Yinaina Dominguez which was for summary judgment dismissing the complaint insofar as asserted against them.