Ford v Thomas

Ford v Thomas 2014 NY Slip Op 08600 Decided on December 10, 2014 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 10, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
SHERI S. ROMAN
SANDRA L. SGROI, JJ.
2013-08502
(Index No. 27702/08)

[*1]Aisha Ford, plaintiff, Arthur Boone, respondent,

v

Kesha D. Thomas, appellant, et al., defendant.

Morris Duffy Alonso & Faley, New York, N.Y. (Kerry E. Sullivan of counsel), for appellant.

David I. Pankin, P.C., Brooklyn, N.Y., for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Kesha D. Thomas appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Graham, J.), dated June 27, 2013, as denied that branch of her motion which was for summary judgment dismissing the complaint insofar as asserted against her by the plaintiff Arthur Boone on the ground that Boone 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 insofar as appealed from, with costs.

The appellant met her prima facie burden of showing that the plaintiff Arthur Boone 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 appellant submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of Boone's spine and to Boone's left shoulder did not constitute serious injuries under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v Yshua, 59 AD3d 614). In opposition, however, Boone raised triable issues of fact as to whether he sustained serious injuries to the cervical and lumbar regions of his spine and to his left shoulder (see Perl v Meher, 18 NY3d 208, 218-219). Therefore, the Supreme Court properly denied that branch of the appellant's motion which was for summary judgment dismissing the complaint insofar as asserted against her by Boone.

The appellant's remaining contentions are without merit.

DILLON, J.P., DICKERSON, ROMAN and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court