Opinion
2018-06298 Index No. 513584/15
11-13-2019
YU FENG JIANG, Appellant, v. Jean M. FRANCOIS, Respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, NY, of counsel), for respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, NY, of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Paul Wooten, J.), dated March 21, 2018. The order, insofar as appealed from, 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 insofar as appealed from, 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 alleges she sustained in a motor vehicle accident that occurred in November 2012. The defendant moved for summary judgment dismissing the complaint on the ground, inter alia, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. By order dated March 21, 2018, the Supreme Court granted the defendant's motion for summary judgment dismissing the complaint, and the plaintiff appeals.
We disagree with the Supreme Court's determination granting the defendant's motion for summary judgment dismissing the complaint. 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 subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 352, 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 ) by submitting competent medical evidence to show, prima facie, that none of the alleged injuries constituted a serious injury within the meaning of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 614, 874 N.Y.S.2d 180 ), and that, in any event, the alleged injuries were not caused by the accident (see Gouvea v. Lesende, 127 A.D.3d 811, 811, 6 N.Y.S.3d 607 ; Fontana v. Aamaar & Maani Karan Tr. Corp., 124 A.D.3d 579, 580, 1 N.Y.S.3d 324 ). However, in opposition, 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 and significant limitation of use categories of Insurance Law § 5102(d) as a result of the accident (see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424 ; Kholdarov v. Hyman, 165 A.D.3d 1087, 1088, 85 N.Y.S.3d 153 ).
Accordingly, the defendant's motion for summary judgment dismissing the complaint should have been denied.
CHAMBERS, J.P., AUSTIN, DUFFY and CHRISTOPHER, JJ., concur.