Opinion
2012-01-31
Elizabeth ECHEVARRIA, respondent, v. G & G CLASSIC, INC., et al., appellants.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel), for appellants. Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, N.Y. (Melissa C. Ingrassia of counsel), for respondent.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel), for appellants. Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, N.Y. (Melissa C. Ingrassia of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Pineda–Kirwan, J.), dated June 2, 2011, which denied their 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.
ORDERED that the order is affirmed, with costs.
While we affirm the order appealed from, we do so on a ground different from that relied upon by the Supreme Court. The Supreme Court erred in concluding that the defendants failed to meet 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 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The plaintiff alleged, inter alia, that as a result of the subject accident, the lumbosacral region of her spine sustained certain injuries. Although the Supreme Court correctly determined that the defendants failed to submit competent medical evidence establishing, prima facie, that those alleged injuries did not constitute a serious injury within the meaning of Insurance Law § 5102(d) ( see Scott v. Gresio, 90 A.D.3d 736, 736, 934 N.Y.S.2d 351), the defendants did submit competent medical evidence establishing, prima facie, that those alleged injuries were not caused by the accident ( see Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424).
However, in opposition, the plaintiff submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the lumbosacral region of her spine were caused by the subject accident ( see Perl v. Meher, 18 N.Y.3d 208, 217–18, 936 N.Y.S.2d 655, 960 N.E.2d 424; Jaramillo v. Lobo, 32 A.D.3d 417, 418, 820 N.Y.S.2d 608). In addition, the plaintiff provided a reasonable explanation for a cessation of her medical treatment ( see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278; Abdelaziz v. Fazel, 78 A.D.3d 1086, 912 N.Y.S.2d 103). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.