Opinion
2012-04-10
Loretta T. BROUGHAL, appellant, v. Richard S. MOSS, respondent.
Mahon Mahon Kerins & O'Brien, LLC, Garden City, N.Y. (Robert P. O'Brien and Joseph A. Hyland of counsel), for appellant. Blane Magee, Rockville Centre, N.Y., for respondent.
Mahon Mahon Kerins & O'Brien, LLC, Garden City, N.Y. (Robert P. O'Brien and Joseph A. Hyland of counsel), for appellant. Blane Magee, Rockville Centre, N.Y., for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals (1), as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), entered April 6, 2011, as 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), and (2) from a judgment of the same court entered April 25, 2011, which, upon the order, is in favor of the defendant and against her dismissing the complaint.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is reversed, on the law, the complaint is reinstated, the defendant's motion for summary judgment dismissing the complaint is denied, and the order is modified accordingly; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501[a][1] ).
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 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 defendant established, prima facie, that the alleged injuries to the cervical region of the plaintiff's spine did not constitute a serious injury within the meaning of Insurance Law § 5102(d) ( see Rodriguez v. Huerfano, 46 A.D.3d 794, 795, 849 N.Y.S.2d 275), and, in any event, were not caused by the subject accident ( cf. Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424; Gentilella v. Board of Educ. of Wantagh Union Free School Dist., 60 A.D.3d 629, 629–630, 875 N.Y.S.2d 128).
However, in opposition, the plaintiff submitted evidence raising a triable issue of fact as to whether the alleged injuries to the cervical region of her spine constituted a serious injury under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102(d) ( see Perl v. Meher, 18 N.Y.3d 208, 215–218, 936 N.Y.S.2d 655, 960 N.E.2d 424). The plaintiff also submitted evidence raising a triable issue of fact as to whether those alleged injuries were caused by the subject accident ( id. at 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424; see Jaramillo v. Lobo, 32 A.D.3d 417, 418, 820 N.Y.S.2d 608). Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.