Paredes v. Boudreau

Full title: Ramon E. Paredes, appellant, v. Charles J. Boudreau, et al., respondents.

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

Date published: Jun 24, 2015

2015 N.Y. Slip Op. 5456 (N.Y. App. Div. 2015)

Opinion

2014-03464

06-24-2015

Ramon E. Paredes, appellant, v. Charles J. Boudreau, et al., respondents.

Sacco & Fillas, LLP, Astoria, N.Y. (Brad S. Levin of counsel), for appellant. Mendolia & Stenz (Russo, Apoznanski & Tambasco, Melville, N.Y. [Yamile Al-Sullami], of counsel), for respondents.

WILLIAM F. MASTRO, J.P.

CHERYL E. CHAMBERS

JEFFREY A. COHEN

ROBERT J. MILLER

HECTOR D. LASALLE, JJ. (Index No. 7484/12)

Sacco & Fillas, LLP, Astoria, N.Y. (Brad S. Levin of counsel), for appellant.

Mendolia & Stenz (Russo, Apoznanski & Tambasco, Melville, N.Y. [Yamile Al-Sullami], 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, Queens County (Siegal, J.), dated February 14, 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 defendants' motion for summary judgment dismissing the complaint 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 injuries to the cervical and lumbar regions of the plaintiff's spine did not constitute serious injuries under 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 submitted evidence raising triable issues of fact as to whether he sustained serious injuries to the cervical and lumbar regions of his spine (see Perl v Meher, 18 NY3d 208, 218-219). Thus, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.

MASTRO, J.P., CHAMBERS, COHEN, MILLER and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court