Opinion
2013-10648
11-12-2014
Jennifer TRUNZO, appellant, v. Michael A. YANNOTTI, et al., respondents.
Cellino & Barnes, P.C., New York, N.Y. (Ellen B. Sturm of counsel), for appellant. Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Andrea E. Ferrucci of counsel), for respondents.
Cellino & Barnes, P.C., New York, N.Y. (Ellen B. Sturm of counsel), for appellant.
Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Andrea E. Ferrucci of counsel), for respondents.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.
Opinion In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (McDonald, J.), dated September 23, 2013, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she 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 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 defendants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and thoracolumbar 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 A.D.3d 614, 874 N.Y.S.2d 180 ).
In opposition, however, the plaintiff raised triable issues of fact as to whether she sustained serious injuries to the cervical and thoracolumbar regions 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 defendants' motion for summary judgment dismissing the complaint.