STOUDEMIRE v. ROMERE (2004)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Satterfield, J.), dated January 15, 2003, which granted the defendants' cross motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and denied his motion for summary judgment on the issue of liability as academic.

ORDERED that the order is reversed, on the law, with costs, the cross motion is denied, and the motion is granted.

 The defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle 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, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   However, the affirmation of the plaintiff's physician submitted in opposition to the defendants' cross motion raised a triable issue of fact as to whether the plaintiff sustained a serious injury.   Accordingly, the Supreme Court erred in granting the defendants' cross motion for summary judgment.

 Moreover, in this rear-end collision case, where the defendants failed to come forth with any reasonable explanation for the accident, the plaintiff was entitled to summary judgment on the issue of liability (see Krakowska v. Niksa, 298 A.D.2d 561, 749 N.Y.S.2d 55, lv. denied 1 N.Y.3d 501, 775 N.Y.S.2d 238, 807 N.E.2d 288;  Reed v. New York City Tr. Auth., 299 A.D.2d 330, 749 N.Y.S.2d 91).