Opinion
2014-11-12
Deborah OGLE, appellant, v. Perline HIGGINS, respondent.
Ferraro & Wyatt, PLLC, New York, N.Y. (Jason M. Bernstein of counsel), for appellants. James G. Bilello (Russo, Apoznanski & Tambasco, Melville, N.Y. [Susan J. Mitola], of counsel), for respondent.
Ferraro & Wyatt, PLLC, New York, N.Y. (Jason M. Bernstein of counsel), for appellants. James G. Bilello (Russo, Apoznanski & Tambasco, Melville, N.Y. [Susan J. Mitola], of counsel), for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, SHERI S. ROMAN and SANDRA L. SGROI, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Silber, J.), dated September 11, 2013, which 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, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
The defendant met her 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 defendant submitted competent medical evidence establishing, prima facie, that the alleged injury to the lumbar region of the plaintiff's spine did not a constitute a serious injury 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, 614, 874 N.Y.S.2d 180).
In opposition, however, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to the lumbar region of her spine ( 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 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.