Fontana v. Aamaar & Maani Karan Transit Corp. , 1 N.Y.S.3d 324 ( 2015 )

Fontana v Aamaar & Maani Karan Tr. Corp. (2015 NY Slip Op 00331)

Fontana v Aamaar & Maani Karan Tr. Corp.

2015 NY Slip Op 00331

Decided on January 14, 2015

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 January 14, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
PETER B. SKELOS, J.P.
JOHN M. LEVENTHAL
SYLVIA O. HINDS-RADIX
COLLEEN D. DUFFY
HECTOR D. LASALLE, JJ.

2014-01690
(Index No. 25167/11)

[*1]Victor Fontana, appellant,

v

Aamaar & Maani Karan Transit Corp., et al., respondents.

Sacco & Fillas, LLP, Astoria, N.Y. (Nissim Abaev of counsel), for appellant.

Baker, McEvoy, Morrissey & Moskovits, P.C. (Majorie E. Bornes, Brooklyn, N.Y., of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Lane, J.), entered December 3, 2013, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he 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 costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

In support of their motion for summary judgment dismissing the complaint, 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 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 plaintiff's spine were not caused by the accident (see generally Jilani v Palmer, 83 AD3d 786, 787).

In opposition, however, the plaintiff raised triable issues of fact as to whether the alleged injuries to the cervical and lumbar regions of his spine were caused by the accident (see Perl v Meher, 18 NY3d 208, 218-219; Iovino v Scholl, 69 AD3d 799, 800).

Therefore, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.

SKELOS, J.P., LEVENTHAL, HINDS-RADIX, DUFFY and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court