Opinion
2020-06877 2020-06877
05-18-2022
Kelia Daley, appellant, v. P.J. Jennette-Mingo, respondent. Index No. 610244/18
Cellino Law LLP, Melville, NY (Joshua B. Sandberg of counsel), for appellant. Martyn, Martyn, Smith, Murray & Yong, Mineola, NY (Megan C. Brady of counsel), for respondent.
Cellino Law LLP, Melville, NY (Joshua B. Sandberg of counsel), for appellant.
Martyn, Martyn, Smith, Murray & Yong, Mineola, NY (Megan C. Brady of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., ANGELA G. IANNACCI, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), entered September 3, 2020. The order 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 plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained in a motor vehicle accident that occurred on May 15, 2017. The defendant moved 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. In an order entered September 3, 2020, the Supreme Court granted the defendant's motion, and the plaintiff appeals.
On appeal, the plaintiff does not challenge 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; Gaddy v Eyler, 79 N.Y.2d 955, 956-957; Sylvain v Maurer, 165 A.D.3d 1203, 1204).
However, contrary to the defendant's contention, the plaintiff raised triable issues of fact as to whether she sustained serious injuries to the cervical and lumbar regions of her spine under the significant limitation of use category of Insurance Law § 5102(d), and as to whether these alleged injuries were caused by the accident (see Perl v Meher, 18 N.Y.3d 208, 217-219; Estrella v GEICO Ins. Co., 102 A.D.3d 730, 731-732; Jilani v Palmer, 83 A.D.3d 786, 787).
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.
BRATHWAITE NELSON, J.P., IANNACCI, WOOTEN and ZAYAS, JJ., concur.