

Batista v Leveridge (2015 NY Slip Op 07944)





Batista v Leveridge


2015 NY Slip Op 07944


Decided on November 4, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on November 4, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

JOHN M. LEVENTHAL, J.P.
LEONARD B. AUSTIN
SHERI S. ROMAN
ROBERT J. MILLER
BETSY BARROS, JJ.


2014-11433
 (Index No. 23227/10)

[*1]Rafael Batista, respondent, 
vRoy C. Leveridge, appellant.


Katz & Associates (David S. Klausner, PLLC, White Plains, N.Y. [Stephen Slater], of counsel), for appellant.
Gratt & Associates, P.C., Brooklyn, N.Y. (Edward J. Anthony of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated October 24, 2014, as denied those branches of his motion which were for summary judgment dismissing so much of the complaint as alleged that the plaintiff sustained serious injuries to his left knee and right shoulder 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.
The defendant established, prima facie, that the plaintiff did not sustain a serious injury to his left knee and right shoulder within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, however, the plaintiff raised a triable issue of fact (see Perl v Meher, 18 NY3d 208, 218-219).
LEVENTHAL, J.P., AUSTIN, ROMAN, MILLER and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


