

Stewart v Dubuisson (2015 NY Slip Op 06128)





Stewart v Dubuisson


2015 NY Slip Op 06128


Decided on July 15, 2015


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 July 15, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

PETER B. SKELOS, J.P.
THOMAS A. DICKERSON
L. PRISCILLA HALL
JOSEPH J. MALTESE, JJ.


2014-04059
 (Index No. 26445/11)

[*1]Jannet Stewart, appellant, 
vDjenny Dubuisson, respondent.


Mallilo & Grossman, Flushing, N.Y. (Serge M. Pierre of counsel), for appellant.
Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Agate, J.), entered March 24, 2014, which 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, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
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 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine did not constitute serious injuries under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v Yshua, 59 AD3d 614), and that those alleged injuries were not caused by the accident in any event (see generally Jilani v Palmer, 83 AD3d 786, 787).
In opposition, however, the plaintiff submitted evidence raising triable issues of fact as to whether she sustained serious injuries to the cervical and lumbar regions of her spine, and as to whether those alleged injuries were caused by the accident (see Perl v Meher, 18 NY3d 208, 218-219). Thus, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.
SKELOS, J.P., DICKERSON, HALL and MALTESE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court




