Opinion
2018–01162 (Index No. 512000/15)
05-22-2019
Nikolay VASILYEV, Appellant, v. Michael G. MASSAY, Respondent.
William Pager, Brooklyn, NY, for appellant. Jennifer S. Adams, Lake Success, N.Y. (John P. Martorella of counsel), for respondent.
William Pager, Brooklyn, NY, for appellant.
Jennifer S. Adams, Lake Success, N.Y. (John P. Martorella of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOSEPH J. MALTESE, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDERIn an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Paul Wooten, J.), dated December 8, 2017. The order 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 plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident on February 2, 2015. The defendant moved 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. The Supreme Court granted the motion, and the plaintiff appeals.
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 injury to the lumbar region of the plaintiff's spine did not constitute a serious injury under the permanent consequential limitation of use and 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 ), and that, in any event, the alleged injury was not caused by the subject accident (see Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424 ).
In opposition, however, the plaintiff raised a triable issue 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) as a result of the accident (see Perl v. Meher, 18 N.Y.3d 208, 217–219, 936 N.Y.S.2d 655, 960 N.E.2d 424 ).
Accordingly, we disagree with the Supreme Court's determination to grant the defendant's motion for summary judgment dismissing the complaint.
MASTRO, J.P., MALTESE, DUFFY and CONNOLLY, JJ., concur.