Margaret Schlesinger v Nicholas Bitzonides

Schlesinger v Bitzonides 2004 NY Slip Op 05228 [8 AD3d 468] June 14, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2004

Margaret Schlesinger, Appellant,
v
Nicholas Bitzonides et al., Respondents.

—[*1]In an action to recover damages for personal injuries, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Segal, J.), dated July 21, 2003, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and dismissed the complaint.

Ordered that the order and judgment is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

Although the defendants made a prima facie showing that the plaintiff 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 plaintiff raised a triable issue of fact. Therefore, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint. Altman, J.P., S. Miller, Schmidt, Cozier and Skelos, JJ., concur.