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Brackeche v. Gladiator Trucking Corp.

Supreme Court, Appellate Division, Second Department, New York.

Djelloul BRACKECHE, appellant,

v.

GLADIATOR TRUCKING CORP., et al., respondents, et al., defendants.

 

March 6, 2013.

 

Ateshoglou & Aiello, P.C., New York, N.Y. (Steven D. Ateshoglou of counsel), for appellant.

 

McGaw, Alventosa & Zajac, Jericho, N.Y. (James K. O’Sullivan of counsel), for respondents Gladiator Trucking Corp., Warrior Corporation, Voyager Trucking Corporation, and Patrick F. Collison.

 

Nancy L. Isserlis, Long Island City, N.Y. (Lawrence R. Miles of counsel), for respondents Jagprit Singh and Norma Taxi Corp.

 

DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

 

*1 In a consolidated action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Butler, J.), dated February 27, 2012, which granted the motion of the defendants Jagprit Singh and Norma Taxi Corp., the cross motion of the defendants Z & N Taxi, Inc., and Bashir M. Betker, the separate cross motion of the defendants Gladiator Trucking Corp., Warrior Corporation, Voyager Trucking Corporation, and Patrick F. Collison, and the separate cross motion of the defendant Raymond R. Gregory 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 payable by the respondents appearing separately and filing separate briefs, and the motion and the cross motions are denied.

 

The respondents met their respective prima facie burdens 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, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The respondents submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff’s spine did not constitute serious injuries within the meaning of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180). In opposition, however, the plaintiff submitted evidence raising triable issues of fact as to whether he sustained serious injuries to the cervical and lumbar regions of his spine (see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424). Thus, the Supreme Court should have denied the respondents’ motion and cross motions for summary judgment dismissing the complaint insofar as asserted against them.

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