Opinion
No. 122 SSM 8.
Decided April 6, 2010.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered May 7, 2009. The Appellate Division modified, on the law, an order of the Supreme Court, New York County (Deborah A. Kaplan, J), which had denied a motion by defendants for summary judgment dismissing the complaint. The modification consisted of granting the motion to the extent of dismissing plaintiffs claim that he sustained a medically determined injury of a nonpermanent nature that prevented him from performing substantially all of his usual and customary activities for 90 of the 180 days immediately following the accident. The following question was certified by the Appellate Division: "Was the order of this Court, which modified the order of the Supreme Court, properly made?"
After plaintiff was hit by a taxicab, he commenced an action to recover damages for injuries allegedly sustained to his lumbosacral and cervical spines, his left knee and right shoulder. The majority at the Appellate Division concluded that although defendants shifted the burden of proof as to whether the injuries to plaintiff's cervical spine and knee were caused by the accident or were preexisting conditions, plaintiff raised an issue of fact regarding causation. The dissent concluded that plaintiff's evidence was insufficient to rebut defendants' showing that the injuries in question were preexisting conditions.
Linton v Nawaz, 62 AD3d 434, affirmed.
Baker, McEvoy, Morrissey Moskovits, P.C., New York City ( Stacy R. Seldin of counsel), for appellants.
Law Offices of Mark S. Gray, New York City ( Peter J. Eliopoulos of counsel), for respondents.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.
In this personal injury case in which a taxi struck the plaintiff, the evidence plaintiff proffered relating to injuries to his right shoulder and lumbosacral spine raised a triable question of fact as to whether he suffered a serious injury that was causally related to the accident under the permanent consequential limitation of use of a body organ or member and/or significant limitation of a body function or system criteria ( see Insurance Law § 5102 [d]). Since plaintiff established that at least some of his injuries meet the "no-fault" threshold, it is unnecessary to address whether his proof with respect to other injuries he allegedly sustained would have been sufficient to withstand defendants' motion for summary judgment.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, etc.