BRAUN v. MELIA (2007)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Weber, J.), dated May 2, 2006, which granted the defendants' cross motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and, in effect, denied, as academic, her motion for summary judgment on the issue of liability.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting the defendant's cross 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), and substituting therefor a provision denying the cross motion;  and (2) by deleting the provision thereof which, in effect, denied, as academic, the plaintiff's motion for summary judgment on the issue of liability;  as so modified, the order is affirmed, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Suffolk County, for a determination of the plaintiff's motion on the merits.

The defendants established prima facie that the plaintiff did not sustain a serious injury from the subject accident (see Insurance Law § 5102[d];  Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197).   However, in opposition, the plaintiff raised an issue of fact.   Accordingly, the Supreme Court should have denied the defendants' cross motion for summary judgment dismissing the complaint.