| Bedoya v Kumar |
| 2014 NY Slip Op 06289 |
| Decided on September 24, 2014 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on September 24, 2014SUPREME COURT OF THE STATE OF NEW YORKAppellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
JEFFREY A. COHEN
BETSY BARROS, JJ.
2013-07099
(Index No. 12694/11)
v
Ashwanti Kumar, et al., respondents.
Wellerstein & Associates, P.C., Maspeth, N.Y. (Hedva Wellerstein of counsel), for appellant.
McNicholas, Lee & Cestaro, P.C., Flushing, N.Y. (Shawn M. Cestaro and Louis A. Badolato of counsel), for respondents.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Agate, J.), entered May 9, 2013, which granted the defendants' 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 reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
In support of their motion for summary judgment dismissing the complaint, the defendants met their 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). The defendants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical region of the plaintiff's spine did not constitute serious injuries under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v Yshua, 59 AD3d 614).
In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained serious injuries to the cervical region of his spine (see Perl v Meher, 18 NY3d 208, 218-219; Pommells v Perez, 4 NY3d 566, 572). Therefore, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.
MASTRO, J.P., CHAMBERS, COHEN and BARROS, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court