Hassane v. Elbakry
Opinion
Hassane v Elbakry
2026 NY Slip Op 05289
September 16, 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.
Moustafa Hassane, appellant,
v
Kareem Elbakry, respondent.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on September 16, 2026
2023-01610, (Index No. 52647/20)
Hector D. Lasalle, P.J.
Linda Christopher
Carl J. Landicino
James P. McCormack, JJ.
New York Injury Law, LLP, Kingston, NY (John A. DeGasperis of counsel), for appellant.
Sokoloff Stern LLP, Poughkeepsie, NY (Tinamarie Fisco of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Edward T. McLoughlin, J.), dated January 31, 2023. The order 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, and denied, as academic, the plaintiff's cross-motion for summary judgment on the issue of liability.
ORDERED that the order is reversed, on the law, without costs or disbursements, 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 is denied, and the plaintiff's cross-motion for summary judgment on the issue of liability is denied on the merits.
The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained when, while riding as a passenger in a vehicle operated by the defendant, the defendant lost control of the vehicle, causing it to strike a tree. The defendant moved 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. The plaintiff opposed the motion and cross-moved for summary judgment on the issue of liability. In an order dated January 31, 2023, the Supreme Court granted the defendant's motion for summary judgment dismissing the complaint and denied, as academic, the plaintiff's cross-motion for summary judgment on the issue of liability. The plaintiff appeals.
The defendant failed to meet 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 accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendant failed to submit competent medical evidence establishing, prima facie, that the plaintiff did not sustain a serious injury to the cervical and lumbar regions of his spine, or his left shoulder under the significant limitation of use category of Insurance Law § 5102(d) (see Zennia v Ramsey, 208 AD3d 735, 735; Melika v Caraballo, 187 AD3d 1173, 1173; Staubitz v Yaser, 41 AD3d 698, 699). The defendant's submissions also failed to eliminate triable issues of fact regarding the [*2]plaintiff's claims that he sustained a serious injury under the fracture category of Insurance Law § 5102(d) and under the 90/180-day category of the version of Insurance Law § 5102(d) in effect at the time the plaintiff commenced this action (see Insurance Law former § 5102(d); Vaccaro v Francolopez, 205 AD3d 760, 762; Che Hong Kim v Kossoff, 90 AD3d 969, 969; Rouach v Betts, 71 AD3d 977, 978). Finally, the defendant's submissions failed to address the plaintiff's claims, set forth in the bill of particulars, that, as a result of the defendant's negligence, the accident exacerbated preexisting injuries to the cervical and lumbar regions of his spine and his left shoulder (see Weber v Kalisky, 218 AD3d 629, 630; D'Augustino v Bryan Auto Parts, Inc., 152 AD3d 648, 650; Sanclemente v MTA Bus Co., 116 AD3d 688, 689).
Since the defendant failed to meet his prima facie burden, it is not necessary to determine whether the submissions by the plaintiff in opposition were sufficient to raise a triable issue of fact as to whether he sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Che Hong Kim v Kossoff, 90 AD3d at 969). Accordingly, the Supreme Court should have denied 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 accident.
The Supreme Court denied, as academic, the plaintiff's cross-motion for summary judgment on the issue of liability. Since the merits of the cross-motion were litigated by the parties in the Supreme Court and briefed by the parties in this Court, we address the cross-motion in the interest of judicial economy (see Chowdhury v Elshaer, 233 AD3d 1022, 1023-1024).
"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" (Tsyganash v Auto Mall Fleet Mgt., Inc., 163 AD3d 1033, 1033-1034). "An innocent passenger . . . who, in support of [his or] her motion for summary judgment, submits evidence that the accident resulted from the driver losing control of the vehicle, shifts the burden to the driver to come forward with an exculpatory explanation" (Bing Kang Chen v S & F Travel, Inc., 219 AD3d 1477, 1478 [internal quotation marks omitted]). The emergency doctrine "recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context" (Caristo v Sanzone, 96 NY2d 172, 174; see Annarumma v Tola, 244 AD3d 1035, 1037). "[B]oth the existence of an emergency and the reasonableness of a party's response thereto will ordinarily present questions of fact" (Annarumma v Tola, 244 AD3d at 1037 [internal quotation marks omitted]).
Here, the plaintiff submitted, inter alia, the transcript of his deposition testimony and the transcript of the defendant's deposition testimony. This deposition testimony demonstrated that the accident occurred when the defendant lost control of the vehicle, but raised triable issues of fact as to whether the defendant lost control of the vehicle because the brakes failed to respond and stop the vehicle. Thus, the plaintiff's submissions failed to eliminate all triable issues of fact as to whether the defendant was negligent in the happening of the accident, whether any such negligence caused or contributed to the accident, and whether the emergency doctrine applied to absolve the defendant of liability (see Erazo v Mains, 240 AD3d 858, 859; Kutsankou v Brink's Inc., 222 AD3d 855, 856; Poon v Nisanov, 162 AD3d 804, 807-808; see also Annarumma v Tola, 244 AD3d at 1037-1038; Tsering v Fifth Ave. Foods, LLC, 236 AD3d 703, 705).
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