OSARIO SALCEDO v. MAZAROVA (2012)

In an action to recover damages for personal injuries, the defendants Nicholas Agostino and Orange Transportation Svc., Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated November 17, 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) as a result of the subject accident.

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; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957; Kearney v. Garrett, 92 AD3d 725, 726) by submitting evidence establishing that the plaintiff's alleged injuries were not caused by the subject accident (cf. Jilani v. Palmer, 83 AD3d 786, 787).

However, in opposition, the plaintiff submitted evidence raising a triable issue of fact as to whether his alleged injuries were caused by the subject accident (see Perl v. Meher, 18 NY3d 208, 218–219; Sforza v. Big Guy Leasing Corp., 51 AD3d 659, 661). Accordingly, the Supreme Court properly denied the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.