Innocent v. Golden Touch Transp. of NY, Inc.

208 A.D.3d 563

173 N.Y.S.3d 573

Cassandre INNOCENT, respondent,

v.GOLDEN TOUCH TRANSPORTATION OF NY, INC., et al., appellants.

2021–01792

Index No. 709998/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—June 2, 2022

August 10, 2022

Molod Spitz & DeSantis, P.C., New York, NY (Alice Spitz and Marcy Sonneborn of counsel), for appellants.

Louis C. Fiabane, New York, NY, for respondent.

COLLEEN D. DUFFY, J.P., BETSY BARROS, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), dated February 26, 2021. The order, insofar as appealed from, denied the defendants’ motion for summary judgment dismissing the complaint 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 affirmed insofar as appealed from, with costs.

The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained in a motor vehicle accident on February 4, 2018. The defendants moved for summary judgment dismissing the complaint 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. In an order dated February 26, 2021, the Supreme Court, inter alia, denied the defendants’ motion, and the defendants appeal.

The defendants met their prima facie burden of demonstrating 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., Inc., 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 ). The defendants demonstrated, prima facie, that the plaintiff did not sustain a serious injury under the 90/180–day category of Insurance Law § 5102(d) (see Karpinos v. Cora, 89 A.D.3d 994, 995, 933 N.Y.S.2d 383 ). In opposition, however, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury under the 90/180–day category of Insurance Law § 5102(d) (see Bracco v. Zuhir, 123 A.D.3d 753, 996 N.Y.S.2d 540 ; Preston v. Ziane, 120 A.D.3d 647, 990 N.Y.S.2d 889 ).

Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint on the ground...