Carraway v. LaRose

Opinion

Carraway v LaRose

2026 NY Slip Op 04488

July 22, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Simone N. Carraway, respondent,

v

Hermann LaRose, et al., appellants, et al., defendants.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 22, 2026

2024-07041, (Index No. 513175/20)

Betsy Barros, J.P.

Helen Voutsinas

Donna-Marie E. Golia

Phillip Hom, JJ.

Ahmuty Demers & McManus, Albertson, NY (Kevin J. Murtagh, Timothy J. Layer, and Nicholas P. Calabria of counsel), for appellants.

Parker Waichman, LLP (Law Office of Michael James Prisco, PLLC, Massapequa, NY [Michael J. Prisco], of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Hermann LaRose and Brothers Mobility, LLC, appeal from an order of the Supreme Court, Kings County (Wavny Toussaint, J.), dated April 15, 2024. The order denied those defendants' motion for summary judgment dismissing the complaint insofar as asserted against them 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.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained in a motor vehicle accident. The defendants Hermann LaRose and Brothers Mobility, LLC (hereinafter the defendants), moved for summary judgment dismissing the complaint insofar as asserted against them 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 accident. In an order dated April 15, 2024, the Supreme Court denied their motion. The defendants appeal.

The defendants failed to establish, prima facie, that the plaintiff did not sustain a serious injury (see Hodge v St. Eloi, 168 AD3d 690, 691). Their papers failed to adequately refute the plaintiff's claims, set forth in the bill of particulars, that she sustained a serious injury to the cervical region of her spine under the significant limitation of use category of Insurance Law § 5102(d) (see Staff v Yshua, 59 AD3d 614).

As the movants did not sustain their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Since the defendants failed to establish, prima facie, that the plaintiff did not sustain a serious injury under the significant limitation of use category of Insurance Law § 5102(d) as a result of the accident, it is unnecessary to consider whether the defendants established that the plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law § 5102(d) [*2]as a result of the accident (see Diaz v Nightingale Bakery & Beverage Distrib., Inc., 241 AD3d 642, 643).

Therefore, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.

BARROS, J.P., VOUTSINAS, GOLIA and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court