Schlesinger v. Bitzonides

In an action to recover damages for personal injuries, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Segal, J.), dated July 21, 2003, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and dismissed the complaint.

Although the defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]), the plaintiff raised a triable issue of fact. Therefore, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint. Altman, J.P., S. Miller, Schmidt, Cozier and Skelos, JJ., concur.