Hurtado v. Shakur

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Price, J.), dated May 15, 2003, which granted the defendant’s 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). Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated. The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). However, the affirmation of the plaintiffs physician submitted in opposition to the defendant’s motion, when considered with the plaintiffs medical records submitted to the Supreme Court by the defendant [555] (see Pech v Yael Taxi Corp., 303 AD2d 733 [2003]), was adequate to raise a triable issue of fact as to whether the plaintiff sustained a serious injury within the meaning of Insurances Law § 5102 (d). Accordingly, the Supreme Court erred in granting the defendant’s motion for summary judgment dismissing the complaint. Prudenti, P.J., Florio, H. Miller, Schmidt and Cozier, JJ., concur.