Genova v. Chiovaro

Appellate Division of the Supreme Court of New York

Genova v. Chiovaro

133 A.D.3d 629, 20 N.Y.S.3d 133

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 12, 2015

Docket2014-10779

StatusPublished

This text of 133 A.D.3d 629 (Genova v. Chiovaro) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Genova v. Chiovaro, 133 A.D.3d 629, 20 N.Y.S.3d 133 (N.Y. Ct. App. 2015).

Pincite

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Palmieri, J.), entered September 22, 2014, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that she 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 her 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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injury to the cervical 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 AD3d 614 [2009]), and that, in any event, the alleged injury was not caused by the subject accident (see generally Jilani v Palmer, 83 AD3d 786, 787 [2011]).

In opposition, however, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to the cervical region of her spine under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102 (d), and as to whether the alleged injury was caused by the accident (see Perl v Meher, 18 NY3d 208, 218-219 [2011]; Estrella v GEICO Ins. Co., 102 AD3d 730, 731-732 [2013]). Thus, the Supreme Court should have denied the defendant’s motion for summary judgment dismissing the complaint. Mastro, J.P., Hall, Sgroi and Duffy, JJ., concur.

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Palmieri, J.), entered September 22, 2014, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that she 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 her 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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injury to the cervical 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 AD3d 614 [2009]), and that, in any event, the alleged injury was not caused by the subject accident (see generally Jilani v Palmer, 83 AD3d 786, 787 [2011]).

In opposition, however, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to the cervical region of her spine under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102 (d), and as to whether the alleged injury was caused by the accident (see Perl v Meher, 18 NY3d 208, 218-219 [2011]; Estrella v GEICO Ins. Co., 102 AD3d 730, 731-732 [2013]). Thus, the Supreme Court should have denied the defendant’s motion for summary judgment dismissing the complaint. Mastro, J.P., Hall, Sgroi and Duffy, JJ., concur.

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Bluebook (online)

133 A.D.3d 629, 20 N.Y.S.3d 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/genova-v-chiovaro-nyappdiv-2015.

Opinion

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