Opinion
2017–12545 Index No. 11797/13
07-17-2019
Arvin BURTON, Appellant, v. Alfred D. WALCOTT, Respondent, et al., Defendants.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant. Ferro & Stenz (Russo & Tambasco, Melville, N.Y. [Yamile Al–Sullami], of counsel), for respondent.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.
Ferro & Stenz (Russo & Tambasco, Melville, N.Y. [Yamile Al–Sullami], of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., COLLEEN D. DUFFY, BETSY BARROS, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the judgment is reversed insofar as appealed from, on the law, with costs, the complaint is reinstated insofar as asserted against the defendant Alfred D. Walcott, the motion of the defendant Alfred D. Walcott for summary judgment dismissing the complaint insofar as asserted against him is denied, and the order entered October 18, 2016, is modified accordingly.
The plaintiff commenced this action to recover damages for personal injuries that he alleges he sustained in a motor vehicle accident on November 30, 2012. The defendant Alfred D. Walcott (hereinafter the defendant) moved for summary judgment dismissing the complaint insofar as asserted against him 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 accident. In an order entered October 18, 2016, the Supreme Court granted the motion. The court entered a judgment on August 15, 2017, inter alia, dismissing the complaint insofar as asserted against the defendant. The plaintiff appeals. On appeal, the plaintiff does not dispute the Supreme Court's determination that 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 accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 352, 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 ).
However, the plaintiff correctly contends that he raised a triable issue of fact as to whether, as a result of the accident, he sustained a serious injury to the cervical region of his spine under the significant limitation of use category of Insurance Law § 5102(d) (see Perl v. Meher, 18 N.Y.3d 208, 219, 936 N.Y.S.2d 655, 960 N.E.2d 424 ; Estrella v. GEICO Ins. Co., 102 A.D.3d 730, 731–732, 959 N.Y.S.2d 210 ). The defendant's remaining contentions are without merit.
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint insofar as asserted against him.
LEVENTHAL, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.