CAIRO v. AWAN (2011)

In an action to recover damages for personal injuries, the defendants Muhammad A. Awan and Charles Lindenbaum appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated February 3, 2011, as denied their motion 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 insofar as appealed from, with costs.

The appellants 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 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 plaintiff alleged, inter alia, that the cervical region of his spine sustained certain injuries as a result of the subject accident.   The appellants established, prima facie, inter alia, that those alleged injuries were not caused by the subject accident (see Pommells v. Perez, 4 N.Y.3d 566, 579, 797 N.Y.S.2d 380, 830 N.E.2d 278;  Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424).

In opposition to the appellants' motion the plaintiff submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the cervical region of his spine were caused by the accident (see Jaramillo v. Lobo, 32 A.D.3d 417, 820 N.Y.S.2d 608). Accordingly, the Supreme Court properly denied the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.