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Taylor v. Nicosia

Supreme Court of New York, Second Department

December 24, 2019

Andrew S. Taylor, appellant,
v.
Vincent J. Nicosia, respondent. Index No. 605323/16

          Argued - October 3, 2019

         D61690 Q/htr

          Stefano A. Filippazzo, P.C., Brooklyn, NY (Louis A. Badolato of counsel), for appellant.

          Richard T. Lau, Jericho, NY (Kathleen E. Fioretti of counsel), for respondent.

          REINALDO E. RIVERA, J.P. RUTH C. BALKIN SHERI S. ROMAN BETSY BARROS, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered August 6, 2018, and (2) a judgment of the same court dated August 24, 2018. The order 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 judgment is in favor of the defendant and against the plaintiff dismissing the complaint.

         ORDERED that the appeal from the order is dismissed; and it is further, ORDERED that the judgment is reversed, on the law, with costs, the defendant's motion for summary judgment dismissing the complaint is denied, the complaint is reinstated, and the order is modified accordingly.

         The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

         The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident that occurred on December 7, 2015. Thereafter, 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. By order entered August 6, 2018, the Supreme Court granted the defendant's motion for summary judgment dismissing the complaint. Thereafter, a judgment was entered upon the order, in favor of the defendant and against the plaintiff dismissing the complaint. The plaintiff appeals.

         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 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 injuries to the cervical and lumbar regions of the plaintiff's spine did not constitute serious injuries under either the permanent consequential limitation of use and 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 he sustained serious injuries to the cervical and lumbar regions of his spine under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) (see Perl v Meher, 18 N.Y.3d 208, 218-219). As the defendant failed to establish, prima facie, a lack of causation (see Straussberg v Marghub, 108 A.D.3d 694, 695; Kearney v Garrett, 92 A.D.3d 725, 726), the burden did not shift to the plaintiff to raise a triable issue of fact regarding causation or to explain any gap in treatment (see Pommells v Perez, 4 N.Y.3d 566, 572; Torres v Rettaliata, 171 A.D.3d 829, 829-830; Lambropoulos v Gomez, 166 A.D.3d 952).

         Accordingly, the Supreme Court should have denied the defendant's motion for ...


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