Khaimov v. Armanious

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Miller, J.), dated February 4, 2010, which granted the motion of the defendants MDT, Inc., and Mikhaylo Stapinskyy and the cross motion of the defendant Maged Armanious for summary judgment dismissing the complaint insofar as asserted against them on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with one bill of costs payable by the defendants appearing separately and filing separate briefs, and the motion and cross motion for summary judgment dismissing the complaint are denied.

The defendants met their 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]). In support of their respective motion and cross motion, the defendants relied, inter alia, on the affirmed medical reports of Dr. Jessica F. Berkowitz, a radiologist, who found degenerative conditions in the plaintiffs cervical and lumbar spine unrelated to the subject accident and no evidence of “acute traumatic injury” to the plaintiffs left knee.

In opposition, however, the plaintiff raised a triable issue of

Accordingly, the Supreme Court should have denied the respective motion and cross motion for summary judgment. Rivera, J.P., Florio, Dickerson, Hall and Roman, JJ., concur.