Opinion
2014-05-14
Tamara FELIX, respondent, v. Jerry DUANE, et al., appellants.
Martin, Fallon & Mullé, Huntington, N.Y. (Richard C. Mullé of counsel), for appellants. Harmon, Linder, & Rogowsky, New York, N.Y. (Mitchell Dranow of counsel), for respondent.
Martin, Fallon & Mullé, Huntington, N.Y. (Richard C. Mullé of counsel), for appellants.Harmon, Linder, & Rogowsky, New York, N.Y. (Mitchell Dranow of counsel), for respondent.
, J.P., SHERI S. ROMAN, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Reilly, J.), dated August 2, 2013, which denied their 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 affirmed, with costs.
The defendants met 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 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 defendants submitted, inter alia, competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine 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 Burgett v. Schaffhauser, 114 A.D.3d 822, 980 N.Y.S.2d 793;Arias v. County of Suffolk, 107 A.D.3d 652, 653, 967 N.Y.S.2d 98). In opposition, however, the plaintiff raised a triable issue of fact as to whether she sustained serious injuries to the cervical and lumbar regions of her spine ( see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424;Burgett v. Schaffhauser, 114 A.D.3d at 822, 980 N.Y.S.2d 793).
Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.