Opinion
2014-04059
07-15-2015
Jannet STEWART, appellant, v. Djenny DUBUISSON, respondent.
Mallilo & Grossman, Flushing, N.Y. (Serge M. Pierre of counsel), for appellant. Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), for respondent.
Mallilo & Grossman, Flushing, N.Y. (Serge M. Pierre of counsel), for appellant.
Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), for respondent.
Opinion In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Agate, J.), entered March 24, 2014, 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 lumbar regions of the plaintiff's spine did not constitute serious injuries 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, 874 N.Y.S.2d 180 ), and that those alleged injuries were not caused by the accident in any event (see generally Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424 ).
In opposition, however, the plaintiff submitted evidence raising triable issues of fact as to whether she sustained serious injuries to the cervical and lumbar regions of her spine, and as to whether those alleged injuries were caused by the accident (see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424 ). Thus, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.
SKELOS, J.P., DICKERSON, HALL and MALTESE, JJ., concur.