Gordon v. Rodriguez , 738 N.Y.S.2d 892 ( 2002 )

In an action, inter alia, to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Mahon, J.), dated July 8, 2001, which denied her motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Wayne Gordon, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

The medical reports submitted by the defendant in support of her motion for summary judgment established a prima facie case that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d). However, unlike the plaintiff Wayne Gordon, the medical evidence that the plaintiff Fiona Gordon submitted in opposition to the motion raised a triable issue of fact as to whether she sustained a serious injury (see, CPLR 3212 [b]; Del v Eberhart Constr. Co., 259 AD2d 589; McDowell v Jia Ji Lin, 243 AD2d 613). Accordingly, the defendant was entitled to summary judgment dismissing the complaint only insofar as asserted by the plaintiff Wayne Gordon. Santucci, J.P., Goldstein, Luciano, Schmidt and Crane, JJ., concur.