Celestin v. Shawy

Full title: Dickens Celestin, appellant, v. Anthony J. Shawy, et al., respondents.

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Mar 4, 2015

2015 N.Y. Slip Op. 1773 (N.Y. App. Div. 2015)

Opinion

2014-06808 Index No. 10635/12

03-04-2015

Dickens Celestin, appellant, v. Anthony J. Shawy, et al., respondents.

Harmon, Linder, & Rogowsky (Mitchell Dranow, Sea Cliff, N.Y., of counsel), for appellant. Martyn, Toher, Martyn & Rossi, Mineola, N.Y. (Anthony Orcel of counsel), for respondents.

REINALDO E. RIVERA, J.P.

L. PRISCILLA HALL

SHERI S. ROMAN

JEFFREY A. COHEN

BETSY BARROS, JJ.

Harmon, Linder, & Rogowsky (Mitchell Dranow, Sea Cliff, N.Y., of counsel), for appellant.

Martyn, Toher, Martyn & Rossi, Mineola, N.Y. (Anthony Orcel of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Feinman, J.), entered June 4, 2014, which granted the defendants' 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.

ORDERED that the order is reversed, on the law, with costs, and the motion is denied.

The defendants met their 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; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants submitted competent medical evidence establishing, prima facie, that the alleged injury to the lumbar 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).

In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury to the lumbar region of his spine (see Perl v Meher, 18 NY3d 208, 218-219). Therefore, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.

RIVERA, J.P., HALL, ROMAN, COHEN and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court