Opinion
2014-01-8
Patrick JEAN, et al., appellants, v. CEREBRAL PALSY TRANSPORT, INC., et al., respondents.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, N.Y., of counsel), for appellants. Hardin, Kundla, McKeon & Poletto, P.A., New York, N.Y. (Jaclyn A. Martini of counsel), for respondents.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, N.Y., of counsel), for appellants. Hardin, Kundla, McKeon & Poletto, P.A., New York, N.Y. (Jaclyn A. Martini of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Schmidt, J.), dated April 2, 2013, which, upon an order of the same court dated May 23, 2012, granting the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Patrick Jean did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, is in favor of the defendants and against the plaintiffs, dismissing the complaint.
ORDERED that the judgment is reversed, on the law, with costs, the complaint is reinstated, the defendants' motion for summary judgment dismissing the complaint is denied, and the order is modified accordingly.
The defendants met their prima facie burden of showing that the plaintiff Patrick Jean 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 competent medical evidence establishing, prima facie, that the alleged injuries to the cervical region of Patrick Jean's spine and to his right shoulder 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), and that those alleged injuries, as well as the alleged injury to the lumbar region of his spine, were not caused by the subject accident ( see Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424).
In opposition, however, the plaintiffs raised triable issues of fact as to whether Patrick Jean sustained serious injuries to the cervical region of his spine and to his right shoulder, and as to whether those alleged injuries, as well as the alleged injury to the lumbar region of his spine, were caused by the accident ( see Perl v. Meher, 18 N.Y.3d 208, 215–218, 936 N.Y.S.2d 655, 960 N.E.2d 424). Therefore, the Supreme Court should have denied the defendants' motion for summary judgment. DILLON, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.