Clark v. Johnston

—In an action to recover damages for personal injuries, the plaintiffs appeal (1) from an order of the Supreme Court, Suffolk County (Doyle, J.), dated February 25, 1998, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and (2) as limited by their brief, from so much of an order of the same court, dated October 14, 1998, as, upon reargument, adhered to its original determination. Ordered that the appeal from the order dated February 25, 1998, is dismissed, as that order was superseded by the order dated October 14, 1998, made upon reargument; and it is further, Ordered that the order dated October 14, 1998, is reversed insofar as appealed from, on the law, upon reargument, the order dated February 25, 1998, is vacated, and the defendant’s motion for summary judgment is denied; and it is further, Ordered that the appellants are awarded one bill of costs. Contrary to the conclusion reached by the Supreme Court, the evidence introduced by the plaintiffs in opposition to the defendant’s motion for summary judgment was sufficient to raise a triable issue of fact as to whether the injured plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) (see, Gonzalez v Niddrie, 251 AD2d 450; Jackson v Sorto, 245 AD2d 546; Stark v Amadio, 239 AD2d 569; Steuer v DiDonna, 233 AD2d 494; Rut v Grigonis, 214 AD2d 721). Bracken, J. P., Thompson, Goldstein and McGinity, JJ., concur.