

Kwang Suk Back v Finegan (2017 NY Slip Op 05211)





Kwang Suk Back v Finegan


2017 NY Slip Op 05211


Decided on June 28, 2017


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 June 28, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
REINALDO E. RIVERA
SHERI S. ROMAN
SANDRA L. SGROI, JJ.


2016-01962
 (Index No. 702426/13)

[*1]Kwang Suk Back, appellant, 
vElizabeth Finegan, et al., respondents, et al., defendants.


Sim & Record, LLP, Bayside, NY (Sang J. Sim of counsel), for appellant.
Martyn, Toher, Martyn & Rossi, Mineola, NY (Giovanna Condello of counsel), for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Queens County (Livote, J.), entered February 9, 2016, as, upon an order of the same court dated January 4, 2016, granting that branch of the motion of the defendants Elizabeth Finegan and Kathryn Finegan which was for summary judgment dismissing the complaint insofar as asserted against 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, is in favor of those defendants and against him dismissing the complaint insofar as asserted against them.
ORDERED that the judgment is reversed insofar as appealed from, on the law, with costs, that branch of the motion of the defendants Elizabeth Finegan and Kathryn Finegan which was for summary judgment dismissing the complaint insofar as asserted against them is denied, the complaint is reinstated insofar as asserted against those defendants, and the order dated January 4, 2016, is modified accordingly.
The defendants Elizabeth Finegan and Kathryn Finegan (hereinafter together the Finegans) met their prima facie burden of establishing 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 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The Finegans submitted competent medical evidence establishing, prima facie, that the alleged injuries to the plaintiff's spine and 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 AD3d 614).
In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained serious injuries to his spine and left shoulder under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) (see Perl v Meher, 18 NY3d 208, 218-219).
Accordingly, the Supreme Court should have denied that branch of the Finegans' motion which was for summary judgment dismissing the complaint insofar as asserted against them.
MASTRO, J.P., RIVERA, ROMAN and SGROI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


