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Lella v. Lincoln General Insurance Co.

Supreme Court of New York, Second Department

October 16, 2013

Richard Lella, appellant,
v.
Lincoln General Insurance Co., et al., respondents. Index No. 20910/10

Cannon & Acosta, LLP, Huntington Station, N.Y. (June Redeker of counsel), for appellant.

Cobert, Haber & Haber, LLP, Garden City, N.Y. (Melanie I. Weiner of counsel), for respondents.

DANIEL D. ANGIOLILLO, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, JEFFREY A. COHEN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Spinner, J.), dated October 18, 2012, which granted the defendants' 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 defendants' motion for summary judgment dismissing the complaint is denied.

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 N.Y.2d 345; Gaddy v Eyler, 79 N.Y.2d 955, 956-957). The defendants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine were not caused by the subject accident (see Jilani v Palmer, 83 A.D.3d 786, 787) and, in any event, 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 Staff v Yshua, 59 A.D.3d 614).

In opposition, however, the plaintiff raised triable issues of fact as to whether he sustained serious injuries to the cervical and lumbar regions of his spine that were caused by the subject accident (see Perl v Meher, 18 N.Y.3d 208, 215-218). Thus, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.

ANGIOLILLO, J.P., HALL, ROMAN and COHEN, JJ., concur.


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