Gardner v. Cruz

204 A.D.3d 891

164 N.Y.S.3d 884 (Mem)

Tavia N. GARDNER, appellant,

v.Juan A. CRUZ, respondent.

2019–12843

Index No. 609280/17

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

Submitted—March 24, 2022

April 20, 2022

Law Offices of Martyn, Martyn, Smith & Murray, Hauppauge, NY (Joseph J. Scheno of counsel), for respondent.

Cannon & Acosta, LLP, Huntington Station, NY (June Redeker of counsel),f or appellant.

VALERIE BRATHWAITE NELSON, J.P., ANGELA G. IANNACCI, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Joseph Farneti, J.), dated October 28, 2019. 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.

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 plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained in a motor vehicle accident. 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. In an order dated October 28, 2019, the Supreme Court granted the defendant's motion for summary judgment dismissing the complaint, and 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 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 ). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injury to the plaintiff's right knee 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, 874 N.Y.S.2d 180 ), and that, in any event, the alleged injury was not caused by the subject accident (see Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424 ).

In opposition, however, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to...