Garafano v Alvarado

Garafano v Alvarado 2013 NY Slip Op 08407 Decided on December 18, 2013 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 December 18, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
L. PRISCILLA HALL
SHERI S. ROMAN
ROBERT J. MILLER, JJ.
2012-07656
(Index No. 49299/09)

[*1]Frank J. Garafano, et al., respondents,

v

Luis E. Alvarado, et al., appellants.




Richard T. Lau, Jericho, N.Y. (Joseph G. Gallo of counsel), for
appellants.
Davis & Ferber, LLP, Islandia, N.Y. (Cary M. Greenberg of
counsel), for respondents.


DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (Rebolini, J.), entered June 15, 2012, which, upon the granting of leave to the plaintiffs to supplement their proof, denied the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Frank J. Garafano 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 affirmed, with costs.

The defendants met their prima facie burden of showing that the plaintiff Frank J. Garafano (hereinafter the injured 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 defendants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the injured plaintiff's spine were not caused by the subject accident (see Jilani v Palmer, 83 AD3d 786, 787), and did not constitute serious injuries (see Bakare v Kakouras, 110 AD3d 838, 839; Staff v Yshua, 59 AD3d 614).

In opposition, however, the plaintiffs raised a triable issue of fact as to whether the injured plaintiff sustained serious injuries to the cervical and lumbar regions of his spine that were caused by the subject accident (see Perl v Meher, 18 NY3d 208, 215-218; Bakare v Kakouras,110 AD3d at 839).

Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

The defendants' contention regarding the Supreme Court's adjournment of the motion in its order dated December 12, 2011, is not properly before this Court. [*2]

The parties' remaining contentions either are without merit or need not be addressed in light of our determination.
RIVERA, J.P., HALL, ROMAN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court