Sheuly v Fry

Sheuly v Fry 2012 NY Slip Op 08110 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
DANIEL D. ANGIOLILLO, J.P.
RUTH C. BALKIN
LEONARD B. AUSTIN
ROBERT J. MILLER, JJ.
2012-00845
(Index No. 29839/09)

[*1]Salma Sheuly, appellant,

v

Jeremy Eugene Fry, et al., respondents, et al., defendant.




H. Bruce Fischer, P.C., New York, N.Y., for appellant.
London Fischer, LLP, New York, N.Y. (Myra Needleman and
Jennifer R. Budoff of counsel), for
respondents.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Hart, J.), dated November 21, 2011, which granted the motion of the defendants Jeremy Eugene Fry, The Walt Disney Company, Incantation Productions, Inc., and Cinema Vehicles Services East, LLC, 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 reversed, on the law, with costs, and the motion of the defendants Jeremy Eugene Fry, The Walt Disney Company, Incantation Productions, Inc., and Cinema Vehicles Services East, LLC, 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) is denied.

The movants 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). The movants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine, her right knee, her right leg, and her hips did not constitute serious injuries within the meaning of Insurance Law § 5102(d) (see Fudol v Sullivan, 38 AD3d 593, 594), and that the plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law § 5102(d) (see Richards v Tyson, 64 AD3d 760, 761).

In opposition, however, the plaintiff submitted evidence raising a triable issue of fact as to whether she sustained a serious injury to the lumbar region of her spine (see Perl v Meher, 18 NY3d 208, 218-219). Accordingly, the Supreme Court erred in granting the movants' motion.
ANGIOLILLO, J.P., BALKIN, AUSTIN and MILLER, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court