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Mackins v. Javed

Supreme Court of New York, Second Department

September 18, 2013

Shannel Mackins, appellant,
v.
Mohammad Javed, et al., respondents. Index No. 6712/10

Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), for respondent Mohammed Javed.

Brand, Glick & Brand, P.C., Garden City, N.Y. (Seth D. Cohen of counsel), for respondent Wayne B. Williams. Larry Hallock, Maspeth, N.Y. (Oleg Smolyar of counsel), for appellant.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, PLUMMER E. LOTT, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Saitta, J.), dated February 16, 2012, which granted the separate motions of the defendant Mohammed Javed and the defendant Wayne B. Williams for summary judgment dismissing the complaint insofar as asserted against each of them 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 reversed, on the law, with one bill of costs, and the separate motions of the defendant Mohammed Javed and the defendant Wayne B. Williams for summary judgment dismissing the complaint insofar as asserted against each of them are denied.

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 competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine and to her left shoulder did not constitute serious injuries under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v Yshua, 59 A.D.3d 614) and that, in any event, any injuries to these areas were not caused by the subject accident (see Frisch v Harris, 101 A.D.3d 941, 942). However, in opposition, the plaintiff submitted evidence raising a triable issue of fact as to whether those alleged injuries constituted serious injuries under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) and as to whether those injuries were caused by the subject accident (see Perl v Meher, 18 N.Y.3d 208, 218-219; Broughal v Moss, 94 A.D.3d 798, 799). Accordingly, the Supreme Court should have denied the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.

RIVERA, J.P., DICKERSON, LEVENTHAL and LOTT, JJ., concur.


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