Opinion
2018–13757 Index No. 10907/14
07-08-2020
Maria CELIZ, Respondent, v. CARERIDE PARATRANSIT, LLC, et al., Respondents, et al., Defendant (And a Third-Party Action).
Armienti, DeBellis & Rhoden, LLP, New York, N.Y. (Vanessa M. Corchia of counsel), for appellants. Subin Associates, LLP (Pollack Pollack Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac ], of counsel), for respondents.
Armienti, DeBellis & Rhoden, LLP, New York, N.Y. (Vanessa M. Corchia of counsel), for appellants.
Subin Associates, LLP (Pollack Pollack Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac ], of counsel), for respondents.
LEONARD B. AUSTIN, J.P., SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendants Careride Paratransit, LLC, and Jeanette Torres appeal from an order of the Supreme Court, Queens County (Diccia T. Pineda–Kirwan, J.), entered August 30, 2018. The order denied the motion of the defendants Careride Paratransit, LLC, and Jeanette Torres for summary judgment dismissing the complaint insofar as asserted against them 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 affirmed, with costs.
The plaintiff commenced this action against the defendants Careride Paratransit, LLC, and Jeanette Torres (hereinafter together the defendants), and another, to recover damages for personal injuries she allegedly sustained in a motor vehicle accident on June 2, 2014. The defendants moved for summary judgment dismissing the complaint insofar as asserted against them 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. The Supreme Court denied the defendants' motion, and the defendants appeal.
The defendants failed to meet 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 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' evidence did not establish, prima facie, that the alleged injuries to the plaintiff's left shoulder, as alleged in her bill of particulars, did not constitute serious injuries under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180 ). Further, the defendants failed to establish, prima facie, that the alleged injuries to the plaintiff's left shoulder were not caused by the accident (see Hernandez v. Pagan Corp., 174 A.D.3d 513, 513–514, 101 N.Y.S.3d 637 ).
Since the defendants failed to meet their prima facie burden in this regard, it is unnecessary to determine whether the plaintiff's submissions in opposition were sufficient to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
Accordingly, we agree with the Supreme Court's determination to deny the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.
AUSTIN, J.P., HINDS–RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.