Opinion
2011-12-13
MI SOOK JEONG, etc., appellant, v. Daniel A. CALLAGHAN, et al., respondents.
Sim & Park, LLP, New York, N.Y. (Sang J. Sim of counsel), for appellant. Mendolia & Stenz, Westbury, N.Y. (Stuart M. Kurland of counsel), for respondents.
Sim & Park, LLP, New York, N.Y. (Sang J. Sim of counsel), for appellant. Mendolia & Stenz, Westbury, N.Y. (Stuart M. Kurland of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), entered December 14, 2010, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that Yoon Hee Kim did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
The plaintiff alleged, inter alia, that as a result of the subject accident, her daughter, Yoon Hee Kim, sustained injuries to the cervical and lumbosacral regions of her spine. The defendants met their burden of establishing their prima facie entitlement to judgment as a matter of law by submitting competent medical evidence establishing that the alleged injuries to those regions did not constitute serious injuries within the meaning of Insurance Law § 5102(d) ( see Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176; Rodriguez v. Huerfano, 46 A.D.3d 794, 795, 849 N.Y.S.2d 275; see also Karpinos v. Cora, 89 A.D.3d 994, 933 N.Y.S.2d 383).
However, in opposition, the plaintiff submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the cervical and lumbosacral regions of her daughter's spine constituted serious injuries under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102(d) ( see Dixon v. Fuller, 79 A.D.3d 1094, 1094–1095, 913 N.Y.S.2d 776). Furthermore, contrary to the Supreme Court's determination, the plaintiff provided a reasonable explanation for any alleged cessation of her daughter's medical treatment ( see Abdelaziz v. Fazel, 78 A.D.3d 1086, 912 N.Y.S.2d 103).
Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.