Agyeman v. Osei-Owusu

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Barasch, J.), dated May 28, 2004, as granted the motion of the defendant Barry Abdoul for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) and, upon searching the record, in effect, awarded summary judgment to the remaining defendants dismissing the complaint insofar as asserted against them.

Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs payable to the plaintiff by the defendant Barry Abdoul, the motion is denied, and the complaint is reinstated.

In opposition to the prima facie showing of the defendant Barry Abdoul that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), the plaintiff submitted sufficient evidence to raise a triable issue of fact (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). Accordingly, Abdoul’s motion for summary judgment dismissing the complaint insofar as asserted against him should have been denied (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]) and, upon searching the record, the action should not have been dismissed against the remaining defendants. Prudenti, EJ., Schmidt, Santucci, Luciano and Spolzino, JJ., concur.