Opinion
2014-04-2
George WILL, appellant, v. Maria POTOCKA, et al., respondents.
Miller, Montiel & Strano, P.C., Garden City, N.Y. (David M. Strano of counsel), for appellant. Mendolia & Stenz, Westbury, N.Y. (Stephanie M. Mazzotta of counsel), for respondents.
Miller, Montiel & Strano, P.C., Garden City, N.Y. (David M. Strano of counsel), for appellant. Mendolia & Stenz, Westbury, N.Y. (Stephanie M. Mazzotta of counsel), for respondents.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Dufficy, J.), dated April 30, 2013, which granted the defendants' 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 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 evidenceestablishing, prima facie, that the alleged injury to the plaintiff's right shoulder did not constitute a serious injury 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), and that, in any event, this alleged injury was not caused by the accident ( see generally Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424).
In opposition, however, the plaintiff raised triable issues of fact as to whether he sustained a serious injury to his right shoulder and whether that alleged injury was caused by the accident ( see Ramkumar v. Grand Style Transp. Enters. Inc., 22 N.Y.3d 905, 906–907, 976 N.Y.S.2d 1, 998 N.E.2d 801;Perl v. Meher, 18 N.Y.3d 208, 215–218, 936 N.Y.S.2d 655, 960 N.E.2d 424). Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.