Opinion
No. 2023-06687 Index No. 601237/20
08-14-2024
Marisol Ramos De Castillo, appellant, v. Charity Reado, respondent.
Chopra & Nocerino, LLP, Garden City, NY (Alex Nocerino of counsel), for appellant. Rothenberg & Romanek, Garden City, NY (Pamela Jean Cullington of counsel), for respondent.
Chopra & Nocerino, LLP, Garden City, NY (Alex Nocerino of counsel), for appellant.
Rothenberg & Romanek, Garden City, NY (Pamela Jean Cullington of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P. ROBERT J. MILLER, HELEN VOUTSINAS, JANICE A. TAYLOR, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Sarika Kapoor, J.), entered May 5, 2023. The order, insofar as appealed from, granted that branch of the defendant's motion which was 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.
ORDERED that the order is reversed insofar as appealed from, with costs, that branch of the defendant's motion which was 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 is denied, so much of the order as denied, as academic, that branch of the defendant's motion which was for summary judgment dismissing the complaint on the ground that she was not at fault in the happening of the accident is vacated, and the matter is remitted to the Supreme Court, Nassau County, for a determination on the merits of that branch of the defendant's motion which was for summary judgment dismissing the complaint on the ground that she was not at fault in the happening of the accident.
The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained in a motor vehicle accident. The defendant moved for summary judgment dismissing the complaint on the grounds that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident and that the defendant was not at fault in the happening of the accident. In an order entered May 5, 2023, the Supreme Court granted that branch of the defendant's motion which was 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, and denied, as academic, that branch of the defendant's motion which was for summary judgment dismissing the complaint on the ground that she was not at fault in the happening of the accident. The plaintiff appeals.
The defendant met her 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 defendant 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 she sustained serious injuries to the cervical and lumbar regions of her spine 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). Contrary to the Supreme Court's determination, the plaintiff was not required to submit evidence of contemporaneous quantitative measurements to raise a triable issue of fact as to whether she sustained a serious injury under the permanent consequential limitation of use and significant limitation of use categories (see id. at 218; Kahvejian v Pardo, 125 A.D.3d 936, 938).
Moreover, contrary to the defendant's contention, the defendant failed to establish, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine were not caused by the accident (see Skeldon v Faessler, 219 A.D.3d 851, 853; Navarro v Afifi, 138 A.D.3d 803, 804). The burden, therefore, did not shift to the plaintiff to raise a triable issue of fact as to causation or to explain any gap in treatment (see Pommells v Perez, 4 N.Y.3d 566, 572; Skeldon v Faessler, 219 A.D.3d at 853).
The parties' remaining contentions need not be addressed in light of our determination.
Accordingly, the Supreme Court should have denied that branch of the defendant's motion which was 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. We remit the matter to the Supreme Court, Nassau County, for a determination of that branch of the defendant's motion which was for summary judgment dismissing the complaint on the ground that she was not at fault in the happening of the accident (see Epstein v Kachar, 166 A.D.3d 579, 580).
BRATHWAITE NELSON, J.P., MILLER, VOUTSINAS and TAYLOR, JJ., concur.