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Felix v. Duane

117 A.D.3d 780 Court N.Y. App. Div. Decision date 2014-05-14 English

Judges Balkin, J.E, Roman, Sgroi and Miller, JJ., concur.

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p. 780
Tamara Felix, Respondent, v Jerry Duane et al., Appellants.
[985 NYS2d 723]

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Reilly, J.), dated August 2, 2013, which denied their 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 affirmed, with costs.

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

p. 781
(see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 , 956-957 [1992]). The defendants submitted, inter alia, competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiffs 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 Burgett v Schaffhauser, 114 AD3d 822 [2014]; Arias v County of Suffolk, 107 AD3d 652 , 653 [2013]). In opposition, however, the plaintiff raised a triable issue of fact as to whether she sustained serious injuries to the cervical and lumbar regions of her spine (see Perl v Meher, 18 NY3d 208 , 218-219 [2011]; Burgett v Schaffhauser, 114 AD3d at 822 ).

Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint.

Balkin, J.E, Roman, Sgroi and Miller, JJ., concur.

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