| Luby v Tsybulevskiy |
| 2011 NY Slip Op 07813 [89 AD3d 689] |
| November 1, 2011 |
| Appellate Division, Second Department |
| Joseph E. Luby, Appellant, v Daniel Tsybulevskiy et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel),for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Martin, J.), dated March 10, 2011, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that he did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) is denied.
The defendants failed to meet their prima facie burden of showing that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of thesubject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). The plaintiff alleged that as a result of the subjectaccident, the cervical and lumbosacral regions of his spine, as well as his left shoulder, sustainedcertain injuries. On their motion for summary judgment dismissing the complaint, the defendantsargued that those alleged injuries were not caused by the subject accident (see Pommells v Perez, 4 NY3d566, 579 [2005]). However, the defendants' submissions revealed the existence of a triableissue of fact as to causation (see Kelly vGhee, 87 AD3d 1054, 1055 [2011]; cf. Sforza v Big Guy Leasing Corp., 51 AD3d 659, 660-661 [2008];Jaramillo v Lobo, 32 AD3d 417[2006]).
Moreover, the defendants' motion papers failed to adequately address the plaintiff's claim thathe sustained a medically determined injury or impairment of a nonpermanent nature whichprevented him from performing substantially all of the material acts which constituted his usualand customary daily activities for not less than 90 days during the 180 days immediatelyfollowing the subject accident (seeReynolds v Wai Sang Leung, 78 AD3d 919, 920 [2010]).
Accordingly, the Supreme Court should have denied the defendants' motion for summaryjudgment dismissing the complaint. Rivera, J.P., Florio, Eng, Hall and Cohen, JJ., concur.