Opinion
2015-10-7
Gabriel RIVERA, appellant, v. Andrew RAMOS, respondent.
Krentsel & Guzman, LLP, New York, N.Y. (Steven E. Krentsel and Julie T. Mark of counsel), for appellant. Mendolia & Stenz (Russo, Apoznanski & Tambasco, Melville, N.Y. [Yamile Al–Sullami], of counsel), for respondent.
Krentsel & Guzman, LLP, New York, N.Y. (Steven E. Krentsel and Julie T. Mark of counsel), for appellant. Mendolia & Stenz (Russo, Apoznanski & Tambasco, Melville, N.Y. [Yamile Al–Sullami], of counsel), for respondent.
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Agate, J.), dated September 2, 2014, 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 Bedoya v. Kumar, 120 A.D.3d 1374, 1374, 993 N.Y.S.2d 148; Jean–Baptiste v. Tobias, 88 A.D.3d 962, 962, 931 N.Y.S.2d 645; Messiana v. Drivas, 85 A.D.3d 744, 744–745, 925 N.Y.S.2d 148) by submitting competent medical evidence establishing, inter alia, that the alleged injury to the cervical region of the plaintiff's spine did not constitute a serious injury within the meaning of Insurance Law § 5102(d) ( see Bedoya v. Kumer, 120 A.D.3d at 1374, 993 N.Y.S.2d 148; Messiana v. Drivas, 85 A.D.3d at 745, 925 N.Y.S.2d 148).
In opposition, however, the plaintiff submitted competent medical evidence raising a triable issue of fact as to whether he did sustain a serious injury to the cervical region of his spine ( see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424; Messiana v. Drivas, 85 A.D.3d at 745, 925 N.Y.S.2d 148). Since the plaintiff raised a triable issue of fact with respect to the injuries to the cervical region of his spine, it is not necessary to determine whether his proof with respect to his other alleged injuries would have been sufficient to defeat the defendant's motion for summary judgment ( see Linton v. Nawaz, 14 N.Y.3d 821, 822, 900 N.Y.S.2d 239, 926 N.E.2d 593).
The opinion of the defendant's expert, based upon a review of an unspecified MRI report, was speculative and conclusory and, thus, insufficient to establish, prima facie, a lack of causation ( see Pommells v. Perez, 4 N.Y.3d 566, 577–578, 797 N.Y.S.2d 380, 830 N.E.2d 278; see generally Ortega v. Maldonado, 38 A.D.3d 388, 388, 832 N.Y.S.2d 193). Therefore, the burden did not shift to the plaintiff to raise a triable issue of fact as to whether the alleged injuries were caused by the subject accident, rather than some other contributory factor ( see Messiana v. Drivas, 85 A.D.3d at 745, 925 N.Y.S.2d 148; Jean–Baptiste v. Tobias, 88 A.D.3d at 963, 931 N.Y.S.2d 645).
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.