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Supreme Court, Appellate Division, Second Department, New York.

Maqbool HUSSAIN, Appellant, v. MANHATTAN CABLE T.V., et al., Respondents.

Decided: September 08, 2003

ANITA R. FLORIO, J.P., ROBERT W. SCHMIDT, STEPHEN G. CRANE and BARRY A. COZIER, JJ. Robert A. Flaster, P.C., New York, NY, (Martin Coleman of counsel), for appellant. Newman Fitch Altheim Myers, P.C., New York, NY, (Robert A. Fitch and Andrew B. Weiner of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Garry, J.), dated March 20, 2002, as granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the defendants' motion for summary judgment is denied, and the complaint is reinstated.

The plaintiff allegedly was injured when his vehicle collided with a truck owned by the defendant Manhattan Cable T.V., and operated by the defendant Rose Wardell.   The Supreme Court granted the defendants' motion for summary judgment dismissing the complaint. We reverse and reinstate the complaint.

In opposition to the defendants' prima facie showing of their entitlement to judgment as a matter of law on the issue of liability, the plaintiff raised a triable issue of fact as to whether the accident occurred after the defendants' vehicle cut him off (see Rozengauz v. Lok Wing Ha, 280 A.D.2d 534, 535, 720 N.Y.S.2d 181;  Figueroa v. Cadbury Util. Constr. Corp., 239 A.D.2d 285, 657 N.Y.S.2d 422).   The plaintiff's opposition established that there is no support in the record for the defendants' contention that the plaintiff's vehicle struck the rear of their vehicle while it was stopped in traffic.   To the contrary, the evidence shows that the front passenger side of the plaintiff's vehicle collided with the front driver's side of the defendants' vehicle.

Moreover, the defendants failed to establish their entitlement to judgment as a matter of law by demonstrating that the plaintiff did not sustain a medically-determined injury of a non-permanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident (see Insurance Law § 5102[d];  Onder v. Kaminski, 303 A.D.2d 665, 757 N.Y.S.2d 571;  DeSimone v. Mejia, 283 A.D.2d 454, 724 N.Y.S.2d 630;  Polizzi v. Won Jun Choi, 264 A.D.2d 830, 695 N.Y.S.2d 402).

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