Rogers v. Aquino

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated May 18, 2009, which denied his 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 affirmed, with costs. 668 The defendant established, prima facie, through the affirmed reports of his expert orthopedist and expert radiologist and the plaintiffs deposition testimony, 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 Richards v Tyson, 64 AD3d 760 [2009]; Berson v Rosada Cab Corp., 62 AD3d 636 [2009]; Byrd v J.R.R. Limo, 61 AD3d 801 [2009]). However, the affirmation of the plaintiffs treating physician was sufficient to raise a triable issue of fact. Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint. Skelos, J.P., Florio, Balkin, Belen and Austin, JJ., concur.