Johnson v. Dambreville

209 N.Y.S.3d 568

Hubert JOHNSON, respondent,

v.Alain DAMBREVILLE, et al., appellants.

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

Argued—January 11, 2024

May 1, 2024

Anna J. Ervolina, Brooklyn, NY (Timothy J. O’Shaugnessy of counsel), for appellants.

Elefterakis Elefterakis & Panek, P.C., New York, NY (Oliver R. Tobias of counsel), for respondent.

COLLEEN D. DUFFY, J.P., ROBERT J. MILLER, WILLIAM G. FORD, LAURENCE L. LOVE, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Consuelo Mallafre Melendez, J.), dated January 11, 2023. The order denied 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 affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries that he alleged he sustained when a vehicle, owned by the defendant New York City Transit Authority and driven by the defendant Alain Dambreville, collided with the vehicle that the plaintiff was driving. The defendants 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 accident. In an order dated January 11, 2023, the Supreme Court denied the motion. The defendants appeal.

The defendants failed to meet 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., 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 defendants failed to establish, prima facie, that the plaintiff's injuries were not caused by the accident, as one of their experts conceded that the alleged injuries to the lumbar region of the plaintiff's spine were caused by the accident (see Martinez v. New York City Tr. Auth., 212 A.D.3d 724, 725, 183 N.Y.S.3d 122; see also Niciforo v. Orellana, 212 A.D.3d 642, 642, 179 N.Y.S.3d 619). Since the defendants failed to meet their prima facie burden, it is unnecessary to determine whether the submissions by the plaintiff in opposition were sufficient to raise a triable issue of fact as to whether he sustained a...