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Rovensky v. Tamar Transportation Corp.

Supreme Court of New York, Second Department

June 12, 2013

Lena Rovensky, respondent,
v.
Tamar Transportation Corp., et al., appellants. (Index No. 26999/09)

Cobert, Haber & Haber, Garden City, N.Y. (David C. Haber of counsel), for appellants.

Eric H. Green, New York, N.Y. (Marc Gertler and Hiram Anthony Raldiris of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Partnow, J.), dated July 3, 2012, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

ORDERED that the order is affirmed, with costs.

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 N.Y.2d 345; Gaddy v Eyler, 79 N.Y.2d 955, 956-957). The defendants submitted, inter alia, competent medical evidence establishing, prima facie, that the alleged injuries to the plaintiff's right shoulder were not caused by the subject accident (see Jilani v Palmer, 83 A.D.3d 786, 787).

In opposition, however, the plaintiff submitted evidence raising a triable issue of fact as to whether she sustained a serious injury to her right shoulder that was caused by the accident (see Perl v Meher, 18 N.Y.3d 208, 218-219). Thus, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.

ANGIOLILLO, J.P., BALKIN, AUSTIN and MILLER, JJ., concur.


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