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Kirpanidh v. Campagna

Supreme Court of New York, Second Department

October 23, 2013

Daljit K. Kirpanidh, appellant,
v.
Donna M. Campagna, respondent. Index No. 16028/09

Bachu Law Firm, P.C., Kew Gardens, N.Y. (Sharmela Bachu of counsel), for appellant.

Richard T. Lau, Jericho, N.Y. (Gene W. Wiggins of counsel), for respondent.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SANDRA L. SGROI, SYLVIA O. HINDS-RADIX, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Butler, J.), entered December 27, 2011, 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 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 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 defendant submitted competent medical evidence establishing, prima facie, that the alleged injury to the lumbar region of the plaintiff's spine did not constitute a serious injury 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 a triable issue of fact as to whether she sustained a serious injury to the lumbar region of her spine (see Perl v Meher, 18 N.Y.3d 208, 215-218). Thus, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.

MASTRO, J.P., BALKIN, SGROI and HINDS-RADIX, JJ., concur.


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