Opinion
2012-10-3
In Young SOHN, appellant, v. Neil B. DUSLING, respondent.
Sim & Park, LLP, New York, N.Y. (Marc Andrew Williams and Haesun Alexis Kim of counsel), for appellant. Mendolia & Stenz, Westbury, N.Y. (Beth Goldman of counsel), for respondent.
Sim & Park, LLP, New York, N.Y. (Marc Andrew Williams and Haesun Alexis Kim of counsel), for appellant. Mendolia & Stenz, Westbury, N.Y. (Beth Goldman of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Nahman, J.), entered October 5, 2011, which granted the defendant's 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, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
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 injuries to the cervical and lumbosacral regions of the plaintiff's spine, and to the plaintiff's shoulders, did not constitute serious injuries within the meaning of Insurance Law § 5102(d) ( see Rodriguez v. Huerfano, 46 A.D.3d 794, 795, 849 N.Y.S.2d 275).
However, in opposition, the plaintiff submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the cervical and lumbosacral regions of her spine, and to her shoulders, constituted serious injuries under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102(d) ( see Perl v. Meher, 18 N.Y.3d 208, 215–218, 936 N.Y.S.2d 655, 960 N.E.2d 424;Hightower v. Ghio, 82 A.D.3d 934, 935, 919 N.Y.S.2d 43). Accordingly, the Supreme Court should have denied the defendant's motion *401for summary judgment dismissing the complaint.