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Bakare v. Kakouras

Supreme Court of New York, Second Department

October 16, 2013

Olatunde Bakare, respondent,
v.
Fontini Kakouras, et al., appellants. Index No. 22731/10

Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Andrea E. Ferrucci of counsel), for appellants.

De Brosse & Studley, LLP, Jamaica Estates, N.Y. (Charles M. Geiger of counsel), for respondent.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SANDRA L. SGROI, SYLVIA O. HINDS-RADIX, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Pineda-Kirwan, J.), entered February 6, 2013, as 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 insofar as appealed from, with costs.

Contrary to the defendants' contention, the Supreme Court providently exercised its discretion in accepting the plaintiff's untimely opposition papers, since the defendants were not prejudiced thereby (see CPLR 2004, 2214; Lawrence v Celtic Holdings, LLC, 85 A.D.3d 874, 875; Vlassis v Corines, 254 A.D.2d 273, 273-274).

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 were not caused by the subject accident (see Jilani v Palmer, 83 A.D.3d 786, 787), and 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).

In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained serious injuries to the cervical and lumbar regions of his spine that were caused by the accident (see Perl v Meher, 18 N.Y.3d 208, 215-218). Therefore, the Supreme Court properly denied the defendants' 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.

MASTRO, J.P., BALKIN, SGROI and HINDS-RADIX, JJ., concur.


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