Burgos v Castro

Burgos v Castro 2012 NY Slip Op 06909 Decided on October 17, 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 October 17, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
RUTH C. BALKIN
ARIEL E. BELEN
LEONARD B. AUSTIN, JJ.
2011-04631
(Index No. 25986/08)

[*1]Luis J. Burgos, appellant,

v

Luis Mario Castro, et al., respondents.




Mallilo & Grossman, Flushing, N.Y. (Elliot L. Lewis of counsel),
for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York,
N.Y. (Stacy R. Seldin 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 (Pineda-Kirwan, J.), entered April 5, 2011, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he 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 defendants' motion for summary judgment dismissing the complaint is denied.

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).
In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury to the cervical region of his spine within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Perl v Meher, 18 NY3d 208, 215-218). Accordingly, the defendants' motion for summary judgment dismissing the complaint should have been denied.
DILLON, J.P., BALKIN, BELEN and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court