Opinion
2019-11638 Index 3700/16
05-11-2022
Luis Rivera, appellant, v. Roberto Ramirez, defendant, Abdoul M. Kone, respondent.
Harmon, Linder & Rogowsky (Mitchell Drano, Sea Cliff, NY, of counsel), for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C. (Robert D. Grace, Brooklyn, NY, of counsel), for respondent.
Harmon, Linder & Rogowsky (Mitchell Drano, Sea Cliff, NY, of counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C. (Robert D. Grace, Brooklyn, NY, of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P. SHERI S. ROMAN LINDA CHRISTOPHER WILLIAM G. FORD, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Robert I. Caloras, J.), entered June 27, 2019. The order, insofar as appealed from, granted the motion of the defendant Abdoul M. Kone for summary judgment dismissing the complaint insofar as asserted against him 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 motion of the defendant Abdoul M. Kone for summary judgment dismissing the complaint insofar as asserted against him is denied.
In March 2016, the plaintiff commenced this action to recover damages for personal injuries he allegedly sustained in connection with a motor vehicle accident on March 21, 2015. The defendant Abdoul M. Kone (hereinafter the defendant) moved for summary judgment dismissing the complaint insofar as asserted against him 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. In an order entered June 27, 2019, the Supreme Court, inter alia, granted the defendant's motion, and the plaintiff appeals.
On appeal, the plaintiff does not challenge the Supreme Court's determination that 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 accident (see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345; Gaddy v Eyler, 79 N.Y.2d 955, 956-957; Sylvain v Maurer, 165 A.D.3d 1203, 1204).
Contrary to the defendant's contention, the plaintiff raised triable issues of fact as to whether he sustained a serious injury to the lumbar region of his 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 accident (see Ramkumar v Grand Style Transp. Enters. Inc., 22 N.Y.3d 905, 906-907; Perl v Meher, 18 N.Y.3d 208, 217-219; Renelique v Ashley, 190 A.D.3d 871, 872; Sylvain v Maurer, 165 A.D.3d at 1204).
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint insofar as asserted against him.
BRATHWAITE NELSON, J.P., ROMAN, CHRISTOPHER and FORD, JJ., concur.