Opinion
11-25-2015
Elefterios BAKIS, respondent, v. Steven A. CUMMINGS, appellant.
Adams, Hanson, Rego, Kaplan & Fishbein, Albany, N.Y. (Paul G. Hanson of counsel), for appellant. Sipsas P.C., Astoria, N.Y. (John P. Sipsas of counsel), for respondent.
Adams, Hanson, Rego, Kaplan & Fishbein, Albany, N.Y. (Paul G. Hanson of counsel), for appellant.
Sipsas P.C., Astoria, N.Y. (John P. Sipsas of counsel), for respondent.
Opinion
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Nahman, J.), dated December 18, 2014, which denied his 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) as a result of the subject accident.
ORDERED that the order is affirmed, with costs.
The defendant met his 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 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injury to the plaintiff's cervical spine did not constitute a serious injury under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180). In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury to his cervical spine as a result of the subject accident (see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424). Thus, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.
MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.