Opinion
2016-08937 Index No. 23866/12
12-12-2018
Arkady LEVITANT, et al., Appellants, v. Doreen F. BENINATI, et al., Respondents.
Joel M. Gluck, New York, NY, for appellants. McCabe, Collins, McGeough, Fowler, Levine & Nogan LLP, Carle Place, N.Y. (Patrick M. Murphy and John McLoughlin of counsel), for respondent Doreen F. Beninati.
Joel M. Gluck, New York, NY, for appellants.
McCabe, Collins, McGeough, Fowler, Levine & Nogan LLP, Carle Place, N.Y. (Patrick M. Murphy and John McLoughlin of counsel), for respondent Doreen F. Beninati.
CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
The plaintiffs commenced this action to recover damages for personal injuries that they allegedly sustained in a motor vehicle accident on June 13, 2010. The defendants moved for summary judgment dismissing the complaint on the ground that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. The Supreme Court granted the motion, and the plaintiffs appeal.
The defendants failed to meet their prima facie burden of showing that the plaintiff Arkady Levitant 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 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 papers submitted by the defendants failed to eliminate triable issues of fact regarding his claim, set forth in the bill of particulars, that he sustained a serious injury under the 90/180–day category of Insurance Law § 5102(d) (see Che Hong Kim v. Kossoff, 90 A.D.3d 969, 934 N.Y.S.2d 867 ; Rouach v. Betts, 71 A.D.3d 977, 897 N.Y.S.2d 242 ; cf. Calucci v. Baker, 299 A.D.2d 897, 750 N.Y.S.2d 675 ). Since the defendants failed to meet their prima facie burden in this regard, it is unnecessary to determine whether the submissions by the plaintiff Arkady Levitant in opposition were sufficient to raise a triable issue of fact (see Che Hong Kim v. Kossoff, 90 A.D.3d at 969, 934 N.Y.S.2d 867 ).
The defendants met their prima facie burden of showing that the plaintiff Revekka Levitant 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 N.Y.2d at 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Gaddy v. Eyler, 79 N.Y.2d at 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 ). The defendants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical region of her spine and her right shoulder were not caused by the accident (see generally Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424 ). In opposition, however, the plaintiffs raised a triable issue of fact as to whether these alleged injuries were caused by the subject accident (see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424 ).
Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.
CHAMBERS, J.P., HINDS–RADIX, LASALLE and IANNACCI, JJ., concur.