Majority
The defendant failed to meet his 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 defendant contended that the alleged injuries to the lumbar region of the plaintiffs spine did not constitute serious injuries within the meaning of Insurance Law § 5102 (d). However, the defendant’s examining orthopedic surgeon recounted, in an affirmed report
Since the defendant failed to meet his prima facie burden of demonstrating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact on this issue (see Cues v Tavarone, 85 AD3d 846 , 846-847 [2011]).
Furthermore, in opposition to the defendant’s prima facie showing that the accident did not result from negligence on his part, the plaintiff raised a triable issue of fact on the question of liability (see CPLR 3212 [b]; Alexandre v Dweck, 44 AD3d 597 , 597-598 [2007]). Angiolillo, J.P., Florio, Leventhal and Lott, JJ., concur.
Cases cited
- Toure v. Avis Rent A Car Systems, Inc. 98 NY2d 345 p. 560
- Scott v. Gresio 90 AD3d 736 p. 561
- Nelms v. Khokhar 12 AD3d 426 p. 561
- Williams v. Fava Cab Corp. 90 AD3d 912 at 913 p. 561
- Artis v. Lucas 84 AD3d 845 at 845 p. 561
- Perl v. Meher 18 NY3d 208 at 219 p. 561
- Cues v. Tavarone 85 AD3d 846 at 846-847 p. 561
- Alexandre v. Dweck 44 AD3d 597 at 597-598 p. 561