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Miguel Toribio, Hermes Gonzalez and Miriam Gonzalez v. Miguel Gonzalez

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


March 22, 2013

MIGUEL TORIBIO, HERMES GONZALEZ AND MIRIAM GONZALEZ,
PLAINTIFFS,
v.
MIGUEL GONZALEZ,
APPELLANT,
MAGDALENA SKOWRONSKA,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered May 11, 2009.

Gonzalez v Skowronska

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 22, 2013

PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ

The order, insofar as appealed from, granted the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as was asserted by plaintiff Miguel Gonzalez. The appeal is deemed to be from so much of a judgment of the same court entered October 22, 2009 as dismissed the complaint insofar as asserted by plaintiff Miguel Gonzalez (see CPLR 5512 [a]).

ORDERED that the judgment, insofar as appealed from, is reversed, without costs, so much of the order entered May 11, 2009 as granted the branch of defendant's motion seeking summary judgment dismissing the complaint insofar as asserted by plaintiff Miguel Gonzalez is vacated, and that branch of defendant's motion is denied.

Plaintiffs commenced this action to recover for personal injuries allegedly sustained in a motor vehicle accident. Defendant moved for summary judgment dismissing the complaint on the ground that none of the plaintiffs had sustained a serious injury within the meaning of Insurance Law § 5102 (d). Miguel Gonzalez (plaintiff) appeals from so much of an order entered May 11, 2009 as granted the branch of defendant's motion seeking summary judgment dismissing the complaint insofar as asserted by him. The appeal is deemed to have been taken from so much of a subsequently entered judgment as dismissed the complaint insofar as asserted by plaintiff Miguel Gonzalez (see CPLR 5512 [a]).

The Civil Court correctly determined that defendant had met her prima facie burden of showing that 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 [1992]).

However, in opposition to defendant's motion, plaintiff submitted evidence raising a triable issue of fact as to whether the alleged injuries to the lumbar region of his spine constituted a serious injury under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102 (d) (see Perl v Meher, 18 NY3d 208 [2011]). Plaintiff also raised a triable issue of fact as to whether his alleged injuries were caused by the accident in question (id. at 218-219; see Jaramillo v Lobo, 32 AD3d 417, 418 [2006]).

Accordingly, the judgment, insofar as appealed from, is reversed, so much of the order entered May 11, 2009 as granted the branch of defendant's motion seeking summary judgment dismissing the complaint insofar as asserted by plaintiff Miguel Gonzalez is vacated, and that branch of defendant's motion is denied.

The decision and order of this court entered herein on December 21, 2011 are hereby recalled and vacated (see motion decided simultaneously herewith).

Pesce, P.J., and Weston, J., concur.

Steinhardt, J., taking no part.

Decision Date: March 22, 2013

20130322

© 1992-2013 VersusLaw Inc.



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