Opinion
2013-10-2
Eric STANLEY, respondent, v. CADDIE SERVICE CO., INC., et al., appellants.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn, N.Y. (Stacy R. Seldin of counsel), for appellants. Krentsel & Guzman, LLP (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn and Naomi M. Taub], of counsel), for respondent.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn, N.Y. (Stacy R. Seldin of counsel), for appellants. Krentsel & Guzman, LLP (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn and Naomi M. Taub], 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 (F.Rivera, J.), dated January 25, 2013, 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 *887Toure 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 defendants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the plaintiff's left shoulder and to the cervical and lumbar regions of his spine, 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 A.D.3d 614, 874 N.Y.S.2d 180).
In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury to his left shoulder ( see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424). Thus, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.