Nakia Brown, appellant, v. Ibrahim Jalloh, respondent.

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

Nakia Brown, appellant, v. Ibrahim Jalloh, respondent.

2017–09517 (Index No. 1186/12)

Decided: July 31, 2019

MARK C. DILLON, J.P. ROBERT J. MILLER SYLVIA O. HINDS–RADIX FRANCESCA E. CONNOLLY, JJ. Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.

Submitted—April 5, 2019

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Paul Wooten, J.), dated July 5, 2017.  The order granted the defendant's motion for summary judgment dismissing the complaint 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 reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

The plaintiff commenced this action to recover damages for personal injuries allegedly sustained by him in a motor vehicle accident on August 9, 2011.  The defendant moved for summary judgment dismissing the complaint 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 accident.  The Supreme Court granted the motion, and the plaintiff appeals.

The defendant 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 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 defendant submitted competent medical evidence establishing, prima facie, that the alleged injury to the plaintiff's right ankle was not caused by the accident (see generally Jilani v. Palmer, 83 AD3d 786, 787).  In opposition, however, the plaintiff raised a triable issue of fact as to whether the alleged injury to his right ankle was caused by the accident (see Perl v. Meher, 18 NY3d 208, 218–219).

Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.

DILLON, J.P., MILLER, HINDS–RADIX and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court