Breville v Jerez
2013 NY Slip Op 00717 [103 AD3d 605]
February 6, 2013
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 27, 2013


Philogene Breville, Respondent,
v
Yosniel Jerez et al., Appellant.

[*1] Richard T. Lau, Jericho, N.Y. (Gene W. Wiggins of counsel), for appellants.

Law Office of Olga L. Nikishin, P.C. (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac and Kenneth J. Gorman], of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Partnow, J.), dated May 22, 2012, which denied their 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, with costs.

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 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Burgos v Castro, 99 AD3d 848 [2012]). Accordingly, 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 was properly denied. Dillon, J.P., Hall, Roman and Cohen, JJ., concur.