Boskey v GTWY, Inc.

2010 NY Slip Op 08884 [78 AD3d 1095]

November 30, 2010

Appellate Division, Second Department

As corrected through Wednesday, January 19, 2011

Tonya Boskey, Respondent, v GTWY, Inc., et al.,Appellants.

—[*1]Baker, McEvoy, Morrissey & Moskovits, P.C. (Sullivan Law Firm, New York, N.Y.[Timothy M. Sullivan], of counsel), for appellants.

Dinkes & Schwitzer, P.C., New York, N.Y. (Robert S. Summer of counsel), forrespondent.

In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Silber, J.), dated February 8, 2010, which denied their motionfor summary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The defendants met their prima facie burden of showing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff raised a triable issue offact as to whether she sustained a serious injury to her cervical spine under the permanentconsequential limitation of use or the significant limitation of use category of Insurance Law§ 5102 (d) (see Evans v Pitt, 77 AD3d 611 [2010]; Tai Ho Kang v Young SunCho, 74 AD3d 1328 [2010]; Acosta v Rubin, 2 AD3d 657 [2003]). Mastro, J.P.,Florio, Dickerson, Belen and Lott, JJ., concur.