Fernando v. N.Y.C. Transit Auth.

204 A.D.3d 888

164 N.Y.S.3d 853 (Mem)

Emmanuella FERNANDO, appellant,

v.NEW YORK CITY TRANSIT AUTHORITY, et al., defendants third-party plaintiffs-respondents;

Braun USA, LLC, third-party defendant-respondent.

2020–02914

Index No. 520451/16

Supreme Court, Appellate Division, Second Department, New York.

Submitted—March 25, 2022

April 20, 2022

Wellerstein & Associates, P.C., Maspeth, NY (Leonora Bloom and Hedva Wellerstein of counsel), for appellant.

Anna J. Ervolina, Brooklyn, NY (Timothy J. O'Shaughnessy of counsel), for defendants third-party plaintiffs-respondents.

BETSY BARROS, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Katherine A. Levine, J.), dated January 10, 2020. The order granted the motion of the defendants third-party plaintiffs for summary judgment dismissing the complaint and the separate motion of the third-party defendant for summary judgment, in effect, 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 third-party plaintiffs’ motion and the third-party defendant's separate motion are denied.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained in a motor vehicle accident on September 8, 2015. The defendants third-party plaintiffs moved for summary judgment dismissing the complaint and the third-party defendant separately moved, in effect, 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. In an order dated January 10, 2020, inter alia, the Supreme Court granted those motions, and the plaintiff appeals.

The movants 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 accident (see Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 ). Competent medical evidence was submitted 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 or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180 ). In opposition, however, the plaintiff raised a triable issue of fact as to whether she sustained serious injuries to the cervical and lumbar regions...