Yu v. C & A Seneca Construction , 833 N.Y.S.2d 407 ( 2007 )

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Giacobbe, J.), dated March 9, 2006, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is denied.

The defendants’ evidence, consisting of the plaintiffs deposition testimony, the bill of particulars, the supplemental bill of particulars, and the affirmed medical reports of their examining neurologist, orthopedist, and radiologist, established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456 [2005]). In opposition, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury (see generally Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, the Supreme Court improperly granted the defendants’ motion for summary judgment dismissing the complaint. Mastro, J.E, Ritter, Skelos, Garni and McCarthy, JJ., concur.