Opinion
2019–07509 Index No. 515099/15
10-21-2020
Sashia REYES, etc., appellant, v. Abul KASHEM, respondent.
Sobo & Sobo, LLP, Middletown, N.Y. (Stephen J. Cole–Hatchard of counsel), for appellant. Noll Law Firm, P.C., Syosset, N.Y. (Richard E. Noll of counsel), for respondent.
Sobo & Sobo, LLP, Middletown, N.Y. (Stephen J. Cole–Hatchard of counsel), for appellant.
Noll Law Firm, P.C., Syosset, N.Y. (Richard E. Noll of counsel), for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, BETSY BARROS, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated May 16, 2019. The order, insofar as appealed from, granted the defendant's cross 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 reversed insofar as appealed from, on the law, with costs, and the defendant's cross 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 is denied.
The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained in a motor vehicle accident which occurred on February 2, 2013. The defendant cross-moved 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. In an order dated May 16, 2019, the Supreme Court, inter alia, granted the defendant's cross motion. The plaintiff appeals.
The defendant met his 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 defendant submitted competent medical evidence establishing, prima facie, that the alleged injury to the lumbar region of the plaintiff's spine did not constitute a serious injury under either 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, 874 N.Y.S.2d 180 ).
In opposition, however, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to the lumbar region 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, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424 ). As the defendant failed to establish, prima facie, a lack of causation (see Straussberg v. Marghub, 108 A.D.3d 694, 695, 968 N.Y.S.2d 898 ; Kearney v. Garrett, 92 A.D.3d 725, 726, 938 N.Y.S.2d 349 ), the burden did not shift to the plaintiff to raise a triable issue of fact regarding causation or to explain any gap in treatment (see Pommells v. Perez, 4 N.Y.3d 566, 572, 797 N.Y.S.2d 380, 830 N.E.2d 278 ; Torres v. Rettaliata, 171 A.D.3d 829, 830, 95 N.Y.S.3d 829 ).
Accordingly, we disagree with the Supreme Court's determination granting the defendant's cross motion for summary judgment dismissing the complaint.
DILLON, J.P., COHEN, MILLER and BARROS, JJ., concur.