Josephine Carroll, Appellant, et al., Plaintiff, v. NYRAC, Inc., et al., Respondents

Josephine Carroll, Appellant, et al., Plaintiff, v NYRAC, Inc., et al., Respondents. [723 NYS2d 678] [MAJORITY] —In an action to recover damages for personal injuries, etc., the plaintiff Josephine. Carroll appeals from so much of an order of the Supreme Court, Kings County (G. Aronin, J.), entered July 27, 2000, as granted those branches of the separate motions of the defendants NYRAC, Inc., Budget Rent-A-Car Corporation, and Wieslaw Kaminski, and the defendants Lynda DeVivo and Steven Burrell, which were for summary judgment dismissing the complaint insofar as asserted by her on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs, those branches of the defendants’ motions which were to dismiss the complaint insofar as asserted by the appellant are denied, and the complaint insofar as asserted by the appellant is reinstated. Assuming that the defendants met their burden of establishing, prima facie, that the plaintiff Josephine Carroll did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), she came forward with sufficient evidence to raise a triable issue of fact that she sustained such an injury (see, Gaddy v Eyler, 79 NY2d 955, 956-957). To the extent that relief is sought on behalf of the plaintiff Stephen Carroll, those arguments have not been considered as that plaintiff did not appeal from the order (see, CPLR 5515 [1]). Ritter, J. P., Altman, McGinity, Smith and Cozier, JJ., concur.