Opinion
2018–01750 Index No. 8427/15
07-03-2019
Michelle A. LAWRENCE, Appellant, v. Christine A. SCOLARO, et al., Respondents.
Harmon, Linder, & Rogowsky (Mitchell A. Dranow, Sea Cliff, NY, of counsel), for appellant. Martin, Fallon & Mulle´, Huntington, N.Y. (Richard C. Mulle´ of counsel), for respondents.
Harmon, Linder, & Rogowsky (Mitchell A. Dranow, Sea Cliff, NY, of counsel), for appellant.
Martin, Fallon & Mulle´, Huntington, N.Y. (Richard C. Mulle´ of counsel), for respondents.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ORDERED that the order is reversed, on the law, with costs, and the defendants' 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 is denied.
The plaintiff commenced this action to recover damages for personal injuries allegedly sustained by her in a motor vehicle accident. 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 accident. The Supreme Court granted the motion, and the plaintiff appeals.
The plaintiff does not currently challenge the Supreme Court's determination that the defendants met their prima facie burden of showing that she 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, 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 ; see also Sylvain v. Maurer, 165 A.D.3d 1203, 1204, 85 N.Y.S.3d 203 ).
However, contrary to the defendants' contention, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to the lumbar region of her spine under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d), and as to whether this alleged injury was caused by the subject accident (see Perl v. Meher, 18 N.Y.3d 208, 217–219, 936 N.Y.S.2d 655, 960 N.E.2d 424 ; Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424 ).
Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.
MASTRO, J.P., BALKIN, DUFFY and CONNOLLY, JJ., concur.