Opinion
07-19-2017
Janet PENDLETON, et al., appellants, v. Madeline BIZZOCO, et al., respondents.
Finkelstein & Partners, LLP, Newburgh, NY (Brian D. Acard and Ann R. Johnson of counsel), for appellants. Theresa J. Puleo, Syracuse, NY (Michelle M. Davoli of counsel), for respondents.
Finkelstein & Partners, LLP, Newburgh, NY (Brian D. Acard and Ann R. Johnson of counsel), for appellants.
Theresa J. Puleo, Syracuse, NY (Michelle M. Davoli of counsel), for respondents.
MARK C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, and FRANCESCA E. CONNOLLY, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Pagones, J.), dated March 18, 2016, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Janet Pendleton 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 Janet Pendleton (hereinafter the injured 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 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 ). The defendants submitted competent medical evidence establishing, prima facie, that the alleged injury to the injured plaintiff's brain 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 Marshall v. Marshall, 117 A.D.3d 805, 806, 986 N.Y.S.2d 168 ; Gellis v. Singho, 92 A.D.3d 720, 938 N.Y.S.2d 448 ; Felix v. Wildred, 54 A.D.3d 891, 863 N.Y.S.2d 832 ; Matthews v. Cupie Transp. Corp., 302 A.D.2d 566, 567, 758 N.Y.S.2d 66 ), and that, in any event, the alleged injury was not caused by the subject accident (see generally Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424 ). In opposition, however, the plaintiffs raised triable issues of fact as to whether the injured plaintiff sustained a serious injury to her brain under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d), and as to whether the alleged injury was caused by the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d at 353–355, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Flanders v. National Grange Mut. Ins. Co., 124 A.D.3d 1035, 1036–1038, 1 N.Y.S.3d 542 ; Gellis v. Singho, 92 A.D.3d at 720, 938 N.Y.S.2d 448 ; Jilani v. Palmer, 83 A.D.3d at 787, 920 N.Y.S.2d 424 ).
Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.