Edwin King, appellant, v. Lester Chisholm, et al., respondents.

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

Edwin King, appellant, v. Lester Chisholm, et al., respondents.

2013–06054 (Index No. 3927/12)

Decided: June 25, 2014

REINALDO E. RIVERA, J.P. THOMAS A. DICKERSON CHERYL E. CHAMBERS SYLVIA O. HINDS–RADIX JOSEPH J. MALTESE, JJ. Krentsel & Guzman, LLP, New York, N.Y. (Steven E. Krentsel and Julie T. Mark of counsel), for appellant. McCarthy & Associates, Melville, N.Y. (Marianne Arcieri and Patrick Morale of counsel), for respondents.

Submitted—June 4, 2014

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Dufficy, J.), entered May 3, 2013, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he 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 reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

The defendants 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).   The defendants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and thoracolumbar regions of the plaintiff's spine did not constitute serious injuries under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v. Yshua, 59 AD3d 614).

In opposition, however, the plaintiff raised triable issues of fact as to whether he sustained serious injuries to the cervical and thoracolumbar regions of his spine (see Perl v. Meher, 18 NY3d 208, 218–219).   Therefore, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.

RIVERA, J.P., DICKERSON, CHAMBERS, HINDS–RADIX and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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