Livia v. Atkins

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Sher, J.), dated June 29, 2011, [767] which denied the motion of the defendant Beach & Bay Leasing Corp. for summary judgment dismissing the complaint insofar as asserted against it on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the appeal by the defendant David Atkins is dismissed, as he is not aggrieved by the order appealed from (see CPLR 5511); and it is further, Ordered that the order is affirmed; and it is further, Ordered that one bill of costs is awarded to the plaintiff, payable by the defendant Beach & Bay Leasing Corp. The defendant Beach & Bay Leasing Corp. (hereinafter Beach & Bay) met its 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]). The plaintiff alleged, inter alia, that as a result of the subject accident, his right shoulder sustained certain injuries. Beach & Bay submitted competent medical evidence establishing, prima facie, that the alleged injuries to the shoulder did not constitute a serious injury within the meaning of Insurance Law § 5102 (d) (see Ciancio v Nolan, 65 AD3d 1273 [2009]). However, in opposition, the plaintiff submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to his right shoulder constituted a serious injury under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102 (d) (see Perl v Meher, 18 NY3d 208, 215-218 [2011]). Accordingly, the Supreme Court properly denied the motion of Beach & Bay for summary judgment dismissing the complaint insofar as asserted against it. Angiolillo, J.E, Florio, Leventhal and Lott, JJ., concur. [Prior Case History: 2011 NY Slip Op 31909(U).]