Tomao v. Sanchez

Full title: Anthony Tomao, appellant, v. Nelson A. Sanchez, et al., respondents.

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Oct 15, 2014

121 A.D.3d 882 (N.Y. App. Div. 2014)

2014 N.Y. Slip Op. 6964

994 N.Y.S.2d 402

Opinion

2014-00517

10-15-2014

Anthony Tomao, appellant, v. Nelson A. Sanchez, et al., respondents.

Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of counsel), for appellant. Law Offices of Richard M. Sands, P.C., Brooklyn, N.Y., for respondents.

PETER B. SKELOS, J.P.

JOHN M. LEVENTHAL

SYLVIA O. HINDS-RADIX

COLLEEN D. DUFFY

HECTOR D. LASALLE, JJ. (Index No. 22389/11)

Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of counsel), for appellant.

Law Offices of Richard M. Sands, P.C., Brooklyn, N.Y., for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Agate, J.), entered November 7, 2013, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he 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 defendants' motion for summary judgment dismissing the complaint is denied.

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 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). 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 AD3d 614), and that these alleged injuries were not caused by the subject accident (see Jilani v Palmer, 83 AD3d 786, 787).

In opposition, however, the plaintiff raised triable issues of fact as to whether he sustained serious injuries to the cervical and lumbar regions of his spine that were caused by the accident (see Perl v Meher, 18 NY3d 208, 218-219). Therefore, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.

SKELOS, J.P., LEVENTHAL, HINDS-RADIX, DUFFY and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court