Opinion
No. 2023-03165 Index No. 151134/19
10-30-2024
Doreen Williams, appellant, v. Nicholas D. Lettuere, respondent.
Krenstel Guzman Herbert, LLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn and Ross S. Friscia], of counsel), for appellant. Votto & Albee, PLLC, Staten Island, NY (Christopher J. Albee of counsel), for respondent.
Krenstel Guzman Herbert, LLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn and Ross S. Friscia], of counsel), for appellant.
Votto & Albee, PLLC, Staten Island, NY (Christopher J. Albee of counsel), for respondent.
MARK C. DILLON, J.P., DEBORAH A. DOWLING, JANICE A. TAYLOR, LOURDES M. VENTURA, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Catherine M. DiDomenico, J.), dated March 21, 2023. The order, insofar as appealed from, 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 insofar as appealed from, on the law, with costs, and 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 is denied.
The plaintiff, a pedestrian, allegedly was injured when she was struck by a vehicle operated by the defendant. Thereafter, the plaintiff commenced this action to recover damages for personal injuries she sustained in the accident. 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. In an order dated March 21, 2023, the Supreme Court, inter alia, granted the motion. 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; Gaddy v Eyler, 79 N.Y.2d 955, 956-957). The defendant submitted competent medical evidence establishing, prima facie, that the plaintiff's injuries were degenerative and not caused by the subject accident (see Amirova v JND Trans, Inc., 206 A.D.3d 601, 602; Gash v Miller, 177 A.D.3d 950; Gouvea v Lesende, 127 A.D.3d 811). In opposition, however, the plaintiff raised a triable issue of fact regarding whether the injuries to the lumbar region of her spine were exacerbated by the subject accident (see Iam v Santaniello, 162 A.D.3d 751, 752; Qurashi v Hittin, 51 A.D.3d 652, 652).
Accordingly, the Supreme Court should have denied 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.
DILLON, J.P., DOWLING, TAYLOR and VENTURA, JJ., concur.