STEFKO v. ARSLAN (2008)

In an action to recover damages for personal injuries, the defendants Murat Arslan and Aleka Taxi, Inc., appeal, and the defendants Elfar Ahmed and Gymnastics Transit, Inc., separately appeal, from an order of the Supreme Court, Kings County (Knipel, J.), dated March 28, 2007, which denied their respective motions 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).

ORDERED that the order is affirmed, with one bill of costs.

On their motions for summary judgment, the defendants met their prima facie burdens by 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).   In opposition, the plaintiff, with her submissions, raised a triable issue of fact as to whether she sustained a serious injury to her cervical and/or lumbar spine under the significant limitation of use category of Insurance Law § 5102(d) as a result of the subject accident (see Altreche v. Gilmar Masonry Corp., 49 A.D.3d 479, 853 N.Y.S.2d 371;  Lim v. Tiburzi, 36 A.D.3d 671, 829 N.Y.S.2d 145;  Shpakovskaya v. Etienne, 23 A.D.3d 368, 804 N.Y.S.2d 767;  Clervoix v. Edwards, 10 A.D.3d 626, 781 N.Y.S.2d 690;  Acosta v. Rubin, 2 A.D.3d 657, 768 N.Y.S.2d 642;  Rosado v. Martinez, 289 A.D.2d 386, 734 N.Y.S.2d 622;  Vitale v. Lev Express Cab Corp., 273 A.D.2d 225, 708 N.Y.S.2d 692).