Boskey v GTWY, Inc.

Boskey v GTWY, Inc. 2010 NY Slip Op 08884 [78 AD3d 1095] November 30, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

Tonya Boskey, Respondent,
v
GTWY, Inc., et al., Appellants.

—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C. (Sullivan Law Firm, New York, N.Y. [Timothy M. Sullivan], of counsel), for appellants.

Dinkes & Schwitzer, P.C., New York, N.Y. (Robert S. Summer of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Silber, J.), dated February 8, 2010, which denied their 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).

Ordered that the order is affirmed, with costs.

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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to her cervical spine under the permanent consequential limitation of use or the significant limitation of use category of Insurance Law § 5102 (d) (see Evans v Pitt, 77 AD3d 611 [2010]; Tai Ho Kang v Young Sun Cho, 74 AD3d 1328 [2010]; Acosta v Rubin, 2 AD3d 657 [2003]). Mastro, J.P., Florio, Dickerson, Belen and Lott, JJ., concur.