Opinion
No. 2021-05241 Index No. 608448/20
05-15-2024
Tommy Lee Brooks, appellant, v. Francis F. Muessing, et al., respondents.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant. Martyn, Smith, Murray & Yong, Hauppauge, NY (Robert A. Drummond of counsel), for respondent Francis F. Muessing.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.
Martyn, Smith, Murray & Yong, Hauppauge, NY (Robert A. Drummond of counsel), for respondent Francis F. Muessing.
VALERIE BRATHWAITE NELSON, J.P., DEBORAH A. DOWLING, HELEN VOUTSINAS, LAURENCE L. LOVE, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Gary F. Knobel, J.), dated July 7, 2021. The order granted the separate motions of the defendant Francis F. Muessing and the defendants Samantha J. Dubois and Calvin Dubois, Jr., 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 defendants, and the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them are denied.
The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident. The defendant Francis F. Muessing and the defendants Samantha J. Dubois and Calvin Dubois, Jr., separately moved 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 accident. In an order dated July 7, 2021, the Supreme Court granted the separate motions. The plaintiff appeals.
The defendants met their prima facie burden of demonstrating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345; Gaddy v Eyler, 79 N.Y.2d 955, 956-957). The defendants demonstrated, prima facie, that the plaintiff did not sustain 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 A.D.3d 614). In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury to his left shoulder under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) (see Perl v Meher, 18 N.Y.3d 208).
Since the defendants failed to establish that the alleged injury to the plaintiff's left shoulder was not caused by the accident, the burden never shifted to the plaintiff to raise a triable issue of fact regarding causation (see Chavez v Foley, 220 A.D.3d 651, 652; Navarro v Afifi, 138 A.D.3d 803, 804) or to explain any gap in treatment (see Cortez v Nugent, 175 A.D.3d 1383, 1384; see generally Pommells v Perez, 4 N.Y.3d 566, 572).
Accordingly, the Supreme Court should have denied the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.
BRATHWAITE NELSON, J.P., DOWLING, VOUTSINAS and LOVE, JJ., concur.