| Kelly v Ghee |
| 2011 NY Slip Op 06551 [87 AD3d 1054] |
| September 20, 2011 |
| Appellate Division, Second Department |
| Kevin P. Kelly et al., Appellants, v Carly C. Ghee et al.,Respondents. |
—[*1] McCabe & Mack LLP, Poughkeepsie, N.Y. (Kimberly Hunt Lee of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Dutchess County (Wood, J.), dated August 5, 2010, which, in effect,granted the defendants' motion for summary judgment dismissing the complaint on the groundthat the plaintiff Kevin P. Kelly did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
The defendants failed to meet their prima facie burden of showing that the injured plaintiffdid not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a resultof 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 plaintiffs alleged, inter alia, that as aresult of the subject accident, the injured plaintiff sustained certain injuries to the cervical regionof his spine. However, the defendants failed to provide competent medical evidence establishing,prima facie, that those alleged injuries did not constitute serious injuries within the meaning ofInsurance Law § 5102 (d) (seeTorres v Torrano, 79 AD3d 1124 [2010]; Connors v Flaherty, 32 AD3d 891, 893 [2006]). Furthermore,although the defendants contended that those alleged injuries were not caused by the subjectaccident (see Pommells v Perez, 4NY3d 566, 579 [2005]), the defendants' evidentiary submissions actually demonstrated theexistence of a triable issue of fact as to whether those alleged injuries were caused by the subjectaccident (see Coscia v 938 Trading Corp., 283 AD2d 538 [2001]).
Since the defendants failed to meet their prima facie burden, it is unnecessary to considerwhether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issueof fact (id.).
Accordingly, the Supreme Court should have denied the defendants' motion for summaryjudgment dismissing the complaint. Mastro, J.P., Balkin, Chambers and Sgroi, JJ., concur.