Young Chan Kimv.Hook

Supreme Court, Appellate Division, Second Department, New York.Aug 10, 2016
36 N.Y.S.3d 401 (N.Y. App. Div. 2016)
36 N.Y.S.3d 401142 A.D.3d 5512016 N.Y. Slip Op. 5754

08-10-2016

YOUNG CHAN KIM, appellant, v. Dana S. HOOK, et al., respondents.

Sacco & Fillas, LLP, Astoria, NY (Larry I. Badash of counsel), for appellant. Deirdre J. Tobin, Garden City, NY, for respondent Dana S. Hook. Baker, McEvoy, Morrissey & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, NY, of counsel), for respondent Balkar Singh.


Sacco & Fillas, LLP, Astoria, NY (Larry I. Badash of counsel), for appellant.

Deirdre J. Tobin, Garden City, NY, for respondent Dana S. Hook.

Baker, McEvoy, Morrissey & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, NY, of counsel), for respondent Balkar Singh.

Opinion In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated May 8, 2015, which granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them 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 reversed, on the law, with one bill of costs, and the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them are 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 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 ). They each submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine and to his left shoulder were not caused by the subject accident (see Gouvea v. Lesende, 127 A.D.3d 811, 6 N.Y.S.3d 607 ; Fontana v. Aamaar & Maani Karan Tr. Corp., 124 A.D.3d 579, 1 N.Y.S.3d 324 ; see generally Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424 ).

In opposition, however, the plaintiff raised a triable issue of fact as to whether the alleged injuries to the cervical and lumbar regions of his spine and his left shoulder were caused by the accident (see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424 ).

Accordingly, the Supreme Court should have denied the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.

RIVERA, J.P., BALKIN, HINDS–RADIX and BARROS, JJ., concur.