Henig v Avana

Henig v Avana 2011 NY Slip Op 08725 Decided on November 29, 2011 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 29, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
JOHN M. LEVENTHAL
LEONARD B. AUSTIN
ROBERT J. MILLER, JJ.
2011-05230
(Index No. 12014/09)

[*1]Donna Henig, respondent,

v

Fern Avana, et al., appellants.




John C. Buratti & Associates, Hicksville, N.Y. (Alan M. Shushan
of counsel), for appellants.
Arthur Levine, Garden City, N.Y., for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered April 13, 2011, 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; Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiff alleged, inter alia, that as a result of the subject accident, the lumbosacral region of her spine sustained certain injuries. The defendants submitted competent medical evidence establishing, prima facie, among other things, that the alleged injuries to that region of her spine were not caused by the subject accident (see Pommells v Perez, 4 NY3d 566, 579; Gentilella v Board of Educ. of Wantagh Union Free School Dist., 60 AD3d 629, 629-630).

However, in opposition, the plaintiff submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the lumbosacral region of her spine were caused by the subject accident (see Sforza v Big Guy Leasing Corp., 51 AD3d 659, 660-661). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.
DILLON, J.P., DICKERSON, LEVENTHAL, AUSTIN and MILLER, JJ., concur.

ENTER: [*2]

Matthew G. Kiernan

Clerk of the Court