Bernard Nichols, respondent, v. Thiruvinayagan Thurairajasingam, defendant, Grant Mazzon, Jr., appellant.

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

Bernard Nichols, respondent, v. Thiruvinayagan Thurairajasingam, defendant, Grant Mazzon, Jr., appellant.

2011–08125 (Index No. 11209/10)

Decided: January 17, 2012

REINALDO E. RIVERA, J.P. RANDALL T. ENG CHERYL E. CHAMBERS SANDRA L. SGROI ROBERT J. MILLER, JJ. Wollerstein & Futoran (Mitchell Dranow, Sea Cliff, N.Y., of counsel), for appellant. Baron Associates, P.C., Brooklyn, N.Y. (Daniel Davidovic of counsel), for respondent.

Submitted—January 4, 2012

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Grant Mazzon, Jr., appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated July 14, 2011, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him 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 costs.

The appellant met his 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).   The plaintiff alleged, inter alia, that as a result of the subject accident, the lumbar region of his spine sustained certain injuries.   The appellant submitted evidence establishing, prima facie, that the alleged injuries to the region did not constitute a serious injury within the meaning of Insurance Law § 5102(d) (see Rodriguez v. Huerfano, 46 AD3d 794, 795).

However, in opposition, the plaintiff submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the lumbar region of his spine constituted a serious injury under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Perl v. Meher, 18 NY3d 208, 2011 N.Y. Slip Op 08452, * 4–5 [2011] ).   Accordingly, the Supreme Court properly denied the appellant's motion for summary judgment dismissing the complaint insofar as asserted against him.

RIVERA, J.P., ENG, CHAMBERS, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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