Burgos v. Castro (99 A.D.3d 848, 2012)

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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury to the cervical region of his spine within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Perl v Meher, 18 NY3d 208, 215-218 [2011]). Accordingly, the defendants’ motion for summary judgment dismissing the complaint should have been denied. Dillon, J.P, Balkin, Belen and Austin, JJ., concur.