Osario-Salcedo v Mazarova

Osario-Salcedo v Mazarova 2012 NY Slip Op 08106 Decided on November 28, 2012 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 28, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
ANITA R. FLORIO
THOMAS A. DICKERSON
JOHN M. LEVENTHAL
PLUMMER E. LOTT, JJ.
2011-11922
(Index No. 10648/08)

[*1]Felipe Osario-Salcedo, respondent,

v

Larisa Mazarova, et al., defendants, Nicholas Agostino, et al., appellants. Marjorie E. Bornes, Brooklyn, N.Y., for appellants.




Seligson, Rothman & Rothman, New York, N.Y. (Martin S.
Rothman and Amy Morganstern of counsel), for responent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Nicholas Agostino and Orange Transportation Svc., Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated November 17, 2011, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them 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 affirmed insofar as appealed from, with costs.

The appellants 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; Gaddy v Eyler, 79 NY2d 955, 956-957; Kearney v Garrett, 92 AD3d 725, 726) by submitting evidence establishing that the plaintiff's alleged injuries were not caused by the subject accident (cf. Jilani v Palmer, 83 AD3d 786, 787).

However, in opposition, the plaintiff submitted evidence raising a triable issue of fact as to whether his alleged injuries were caused by the subject accident (see Perl v Meher, 18 NY3d 208, 218-219; Sforza v Big Guy Leasing Corp., 51 AD3d 659, 661). Accordingly, the Supreme Court properly denied the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.
RIVERA, J.P., FLORIO, DICKERSON, LEVENTHAL and LOTT, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court