

Perez v Vollaro (2020 NY Slip Op 04606)





Perez v Vollaro


2020 NY Slip Op 04606


Decided on August 19, 2020


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on August 19, 2020
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
CHERYL E. CHAMBERS
COLLEEN D. DUFFY
BETSY BARROS, JJ.


2019-04842
2019-08135
 (Index No. 604024/17)

[*1]Samantha Perez, appellant, 
vAnna Vollaro, respondent.


Law Offices of Regis A. Gallet, LLC, Forest Hills, NY, for appellant.
Abamont & Associates, Garden City, NY (Evan B. Cohen of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Jack L. Libert, J.), entered February 28, 2019, and (2) an order of the same court entered June 13, 2019. The order entered February 28, 2019, 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. The order entered June 13, 2019, insofar as appealed from, upon reargument, adhered to the original determination in the order entered February 28, 2019, granting the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order entered February 28, 2019, is reversed, on the law, the defendant's motion for summary judgment dismissing the complaint is denied, and the order entered June 13, 2019, is vacated; and it is further,
ORDERED that the appeal from the order entered June 13, 2019, is dismissed as academic in light of our determination on the appeal from the order entered February 28, 2019; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained in a motor vehicle accident that occurred on December 15, 2016. 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 entered February 28, 2019, the Supreme Court granted the defendant's motion for summary judgment dismissing the complaint. Thereafter, the plaintiff moved for leave to reargue her opposition to the defendant's motion. In an order entered June 13, 2019, the court granted the plaintiff's motion for leave to reargue, and upon reargument, adhered to its prior determination granting the defendant's motion for summary judgment dismissing the complaint. The plaintiff appeals.
On appeal, the plaintiff does not challenge the Supreme Court's determination that [*2]the defendant met her 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 accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957; see also Sylvain v Maurer, 165 AD3d 1203, 1204).
However, contrary to the defendant's contention, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to the lumbar region of her spine under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d), and as to whether this alleged injury was caused by the accident (see Perl v Meher, 18 NY3d 208, 217-219; Jilani v Palmer, 83 AD3d 786, 787).
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.
RIVERA, J.P., CHAMBERS, DUFFY and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


