Campos v. Sabella

Full title: Vilma Campos, appellant, v. Steven Sabella, respondent.

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

Date published: Jun 8, 2016

2016 N.Y. Slip Op. 4377 (N.Y. App. Div. 2016)

Opinion

2015-04826

06-08-2016

Vilma Campos, appellant, v. Steven Sabella, respondent.

Levine and Wiss, PLLC (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant. Bruno, Gerbino & Soriano, LLP, Melville, NY (Mitchell L. Kaufman of counsel), for respondent.

RUTH C. BALKIN, J.P.

L. PRISCILLA HALL ROBERT J. MILLER HECTOR D. LASALLE, JJ. (Index No. 30780/11)

Levine and Wiss, PLLC (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.

Bruno, Gerbino & Soriano, LLP, Melville, NY (Mitchell L. Kaufman of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated February 19, 2015, which granted the defendant's 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 defendant's motion for summary judgment dismissing the complaint is denied.

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 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injury to the plaintiff's right shoulder 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 Staff v Yshua, 59 AD3d 614). In opposition, however, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to her right shoulder (see Perl v Meher, 18 NY3d 208, 218-219).

Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.

BALKIN, J.P., HALL, MILLER and LASALLE, JJ., concur. ENTER:

Aprilanne Agostino

Clerk of the Court