Martell v. Silva

Martell v Silva (2016 NY Slip Op 02781)

Martell v Silva

2016 NY Slip Op 02781

Decided on April 13, 2016

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 April 13, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
LEONARD B. AUSTIN
SHERI S. ROMAN
COLLEEN D. DUFFY, JJ.

2015-03308
(Index No. 150404/13)

[*1]Henry Martell, respondent, et al., plaintiff,

v

Carlos Alberto Silva, et al., appellants.

DeSena & Sweeney, LLP, Bohemia, NY (Shawn P. O'Shaughnessy of counsel), for appellants.

Levine and Wiss, PLLC, West Hempstead, NY (Anthony A. Ferrante of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Richmond County (Dollard, J.), dated January 30, 2015, which denied their motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Henry Martell 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 affirmed, with costs.

The defendants met their prima facie burden of showing that the plaintiff Henry Martell (hereinafter 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 lumbar region of the plaintiff's spine and his right hip did not constitute serious injuries under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v Yshua, 59 AD3d 614).

In opposition, however, the plaintiff raised triable issues of fact as to whether he sustained a serious injury to the lumbar region of his spine as a result of the subject accident (see Perl v Meher, 18 NY3d 208, 218-219; Datikashvili v Vijungco, 121 AD3d 637, 638).

Accordingly, the Supreme Court correctly denied the defendants' motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff.

CHAMBERS, J.P., AUSTIN, ROMAN and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court