Opinion
2018–11979 Index No. 607803/16
03-11-2020
Rosario NOLASCO–OCHOA, Appellant, v. Jacob KOLLANETHU, et al., Respondents.
Mallilo & Grossman, Flushing, N.Y. (Joanna J. Lambridis of counsel), for appellant. Sette & Apoznanski (Russo & Tambasco, Melville, N.Y. [Yamile Al–Sullami], of counsel), for respondents.
Mallilo & Grossman, Flushing, N.Y. (Joanna J. Lambridis of counsel), for appellant.
Sette & Apoznanski (Russo & Tambasco, Melville, N.Y. [Yamile Al–Sullami], of counsel), for respondents.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was 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 that she allegedly sustained in a motor vehicle accident that occurred on July 5, 2016. The defendants moved, inter alia, 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 that branch of the defendants' 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 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 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 Staff v. Yshua , 59 A.D.3d 614, 874 N.Y.S.2d 180 ). 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 under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) (see Perl v. Meher , 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424 ).
Moreover, as the defendants failed to establish, prima facie, a lack of causation (see Straussberg v. Marghub , 108 A.D.3d 694, 695, 968 N.Y.S.2d 898 ; Kearney v. Garrett , 92 A.D.3d 725, 726, 938 N.Y.S.2d 349 ), the burden did not shift to the plaintiff to raise a triable issue of fact regarding causation or to explain any gap in treatment (see Pommells v. Perez , 4 N.Y.3d 566, 572, 797 N.Y.S.2d 380, 830 N.E.2d 278 ; Torres v. Rettaliata , 171 A.D.3d 829, 829–830, 95 N.Y.S.3d 829 ; Lambropoulos v. Gomez , 166 A.D.3d 952, 86 N.Y.S.3d 737 ).
Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was 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.
BALKIN, J.P., AUSTIN, LASALLE and IANNACCI, JJ., concur.