Majority
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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 , 956-957 [1992]). The plaintiff alleged, inter alia, that as a result of the subject accident, the cervical region of her spine sustained certain injuries. The defendants provided competent medical evidence establishing, prima facie, inter alia, that those alleged injuries did not constitute a serious injury within the meaning of Insurance Law § 5102 (d) (see Rodriguez v Huerfano, 46 AD3d 794 , 795 [2007]) and, in any event, were not caused by the subject accident (see Jilani v Palmer, 83 AD3d 786 , 787 [2011]).
However, in opposition, the plaintiff provided competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the cervical region of her spine constituted a serious injury under the permanent consequential limitation of
Accordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint. Dillon, J.E, Dickerson, Leventhal, Austin and Miller, JJ., concur. [Prior Case History: 2010 NY Slip Op 32884 (U).]
Cases cited
- Toure v. Avis Rent A Car Systems, Inc. 98 NY2d 345 p. 870
- Jilani v. Palmer 83 AD3d 786 at 787 p. 870
- Dixon v. Fuller 79 AD3d 1094 at 1094-1095 p. 871
- Jaramillo v. Lobo 32 AD3d 417 at 418 p. 871