Opinion
2017–06656 Index No. 8940/15
01-23-2019
HYON CHU KIM, Appellant, v. Anthony DENICKER, et al., Respondents.
Richard U. Pak, Flushing, NY, for appellant. Morris Duffy Alonso & Faley, New York, N.Y. (Iryna S. Krauchanka and Andrea M. Alonso of counsel), for respondents.
Richard U. Pak, Flushing, NY, for appellant.
Morris Duffy Alonso & Faley, New York, N.Y. (Iryna S. Krauchanka and Andrea M. Alonso of counsel), for respondents.
JOHN M. LEVENTHAL, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERORDERED that the order is reversed, on the law, with costs, and the defendants' 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 on June 29, 2014. The defendants 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. The Supreme Court granted the motion, and the plaintiff appeals.
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 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 ). In opposition, however, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to the cervical region of her spine under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) as a result of the accident (see Manzano v. City of New York, 107 A.D.3d 960, 966 N.Y.S.2d 894 ; Estrella v. Geico Ins. Co., 102 A.D.3d 730, 731–732, 959 N.Y.S.2d 210 ), based upon the affirmation of her treating physician (see Sprole v. Sprole, 151 A.D.3d 1413, 54 N.Y.S.3d 339 ; cf. Offman v. Singh, 27 A.D.3d 284, 813 N.Y.S.2d 56 ) and the affidavit of her chiropractor.
Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.
LEVENTHAL, J.P., HINDS–RADIX, DUFFY and BRATHWAITE NELSON, JJ., concur.