Opinion
2014-04-2
Pitak PIRAYATAMWONG, Appellant, v. Bruce A. RONBECK, Respondent.
Marcel Weisman, New York, N.Y. (Ezra Holczer of counsel), for appellant. Scalzi & Nofi, PLLC, Hicksville, N.Y. (Vincent J. Nofi of counsel), for respondent.
Marcel Weisman, New York, N.Y. (Ezra Holczer of counsel), for appellant. Scalzi & Nofi, PLLC, Hicksville, N.Y. (Vincent J. Nofi of counsel), for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and HECTOR D. LASALLE, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Phelan, J.), entered December 12, 2012, 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 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, 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 injuries to the cervical and lumbosacral regions of the plaintiff's spine did not constitute serious injuries under either the permanent consequential limitation of use or significant limitation of use categoriesof 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 triable issues of fact as to whether he sustained serious injuries to the cervical and lumbosacral regions of his spine ( see Ramkumar v. Grand Style Transp. Enters. Inc., 22 N.Y.3d 905, 906–907, 976 N.Y.S.2d 1, 998 N.E.2d 801;Perl v. Meher, 18 N.Y.3d 208, 215–218, 936 N.Y.S.2d 655, 960 N.E.2d 424). Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.