Kathy Bolino v Livia Tam

Bolino v Tam 2003 NY Slip Op 19255 [2 AD3d 473] December 8, 2003 Appellate Division, Second Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

Kathy Bolino et al., Appellants,
v
Livia Tam et al., Respondents, et al., Defendant.

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Jackson, J.), dated August 28, 2002, which granted the motion of the defendants Livia Tam and Chris Tam for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff Kathy Bolino did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated against Livia Tam and Chris Tam.

Although the respondents made a prima facie showing that the plaintiff Kathy Bolino did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]), the plaintiffs' submissions in opposition thereto were sufficient to raise a triable issue of fact. Accordingly, the respondents' motion should have been denied. Santucci, J.P., Goldstein, Schmidt and Cozier, JJ., concur.