Gouvea v. Lesende

Appellate Division of the Supreme Court of New York

Gouvea v. Lesende

127 A.D.3d 811, 6 N.Y.S.3d 607

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

DecidedApril 8, 2015

Docket2013-06496

StatusPublished

Cited by40 cases

This text of 127 A.D.3d 811 (Gouvea v. Lesende) 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.

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Gouvea v. Lesende, 127 A.D.3d 811, 6 N.Y.S.3d 607 (N.Y. Ct. App. 2015).

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Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (DiBella, J.), dated April 1, 2013, which granted the motion of the defendant City of Peekskill for summary judgment dismissing the complaint insofar as asserted against it 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 motion of the defendant City of Peekskill for summary judgment dismissing the complaint insofar as asserted against it is denied.

The defendant City of Peekskill met its 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]). In support of its motion, the City submitted the affirmation and affirmed medical reports of an orthopedic surgeon, who opined, based upon his review of the plaintiffs magnetic resonance imaging films, that the alleged injuries to the cervical and lumbar regions of her spine were degenerative in nature and not caused by the accident (see Fontana v Aamaar & Maani Karan Tr. Corp., 124 AD3d 579 [2015]; Tomao v Sanchez, 121 AD3d 882 [2014]; Rovensky v Tamar Transp. Corp., 107 AD3d 779 [2013]).

In opposition, however, the plaintiff raised triable issues of fact as to whether the alleged injuries to the cervical and *812 lumbar regions of her spine were caused by the accident (see Perl v Meher, 18 NY3d 208, 218-219 [2011]; Khaimov v Armanious, 85 AD3d 978, 979 [2011]; Jilani v Palmer, 83 AD3d 786, 787 [2011]; Fraser-Baptiste v New York City Tr. Auth., 81 AD3d 878, 879 [2011]).

Accordingly, the Supreme Court should have denied the City’s motion for summary judgment dismissing the complaint insofar as asserted against it.

Eng, P.J., Dillon, Chambers and Barros, 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, Westchester County (DiBella, J.), dated April 1, 2013, which granted the motion of the defendant City of Peekskill for summary judgment dismissing the complaint insofar as asserted against it 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 motion of the defendant City of Peekskill for summary judgment dismissing the complaint insofar as asserted against it is denied.

The defendant City of Peekskill met its 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]). In support of its motion, the City submitted the affirmation and affirmed medical reports of an orthopedic surgeon, who opined, based upon his review of the plaintiffs magnetic resonance imaging films, that the alleged injuries to the cervical and lumbar regions of her spine were degenerative in nature and not caused by the accident (see Fontana v Aamaar & Maani Karan Tr. Corp., 124 AD3d 579 [2015]; Tomao v Sanchez, 121 AD3d 882 [2014]; Rovensky v Tamar Transp. Corp., 107 AD3d 779 [2013]).

In opposition, however, the plaintiff raised triable issues of fact as to whether the alleged injuries to the cervical and *812 lumbar regions of her spine were caused by the accident (see Perl v Meher, 18 NY3d 208, 218-219 [2011]; Khaimov v Armanious, 85 AD3d 978, 979 [2011]; Jilani v Palmer, 83 AD3d 786, 787 [2011]; Fraser-Baptiste v New York City Tr. Auth., 81 AD3d 878, 879 [2011]).

Accordingly, the Supreme Court should have denied the City’s motion for summary judgment dismissing the complaint insofar as asserted against it.

Eng, P.J., Dillon, Chambers and Barros, JJ., concur.

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127 A.D.3d 811, 6 N.Y.S.3d 607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gouvea-v-lesende-nyappdiv-2015.

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