Koo v. Wilson

135 A.D.3d 826, 22 N.Y.S.3d 897

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 20, 2016
• Docket: 2015-00441
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (K. Murphy, J.), dated November 12, 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 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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff’s spine, as well as to her shoulders, did not constitute serious injuries 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]).

In opposition, however, the plaintiff submitted competent medical evidence which raised a triable issue of fact as to whether she sustained serious injuries to the cervical and lumbar regions of her spine and to both shoulders under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102 (d) (see Perl v Meher, 18 NY3d 208, 218-219 [2011]).

Accordingly, 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.