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Young Wo Kim v Thomas, 2019 NY Slip Op 02382 [170 AD3d 1253]

March 27, 2019

Appellate Division, Second Department

[*1]

Young Wo Kim, Appellant,

v

Kyle Thomas et al., Respondents.

Andrew Park, P.C., New York, NY (Steve J. Park of counsel), for appellant.

Richard T. Lau, Jericho, NY (Christine A. Hilcken of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Robert J. McDonald, J.), entered August 16, 2017, and (2) a judgment of the same court entered September 7, 2017. The order granted the defendants’ motion for summary judgment dismissing the complaint 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. The judgment, upon the order, is in favor of the defendants and against the plaintiff dismissing the complaint.

Ordered that the appeal from the order is dismissed; and it is further, Ordered that the judgment is reversed, on the law, the defendants’ motion for summary judgment dismissing the complaint is denied, the complaint is reinstated, and the order is modified accordingly; and it is further, Ordered that one bill of costs is awarded to the plaintiff.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho , 39 NY2d 241 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501 [a] [1]).

The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident. The defendants moved for summary judgment dismissing the complaint 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 accident. The Supreme Court granted the motion, and subsequently entered a judgment in favor of the defendants and against the plaintiff, dismissing the complaint. The plaintiff appeals.

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]). The defendants submitted competent medical evidence establishing, prima facie, that the alleged injury to the plaintiff’s right ankle did not constitute a serious injury under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102 (d) ( see Staff v Yshua , 59 AD3d 614 [2009]). In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury to his right ankle under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102 (d) ( see Perl v Meher , 18 NY3d 208 , 218-219 [2011]).

Accordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint. Mastro, J.P., LaSalle, Barros and Connolly, JJ., concur..