Kumar v. Water Auth. of Nassau

200 A.D.3d 668

154 N.Y.S.3d 865 (Mem)

Rajesh KUMAR, et al., appellants, et al., plaintiffs,

v.WATER AUTHORITY OF NASSAU, et al., respondents.

2019–08885

Index No. 613062/17

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

Argued—November 1, 2021

December 1, 2021

The Matera Law Firm, Melville, NY (Michaelangelo Matera and Tyler R. Rossworn of counsel), for appellants.

Andrea G. Sawyers, Melville, NY (Jennifer M. Belk of counsel), for respondents.

LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs Rajesh Kumar and Puja Bhasin appeal from an order of the Supreme Court, Nassau County (Thomas Feinman, J.), entered June 5, 2019. The order, insofar as appealed from, granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiffs Rajesh Kumar and Puja Bhasin on the ground that the plaintiff Rajesh Kumar 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 insofar as appealed from, on the law, with costs, and that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiffs Rajesh Kumar and Puja Bhasin is denied.

The plaintiff Rajesh Kumar, and his wife, the plaintiff Puja Bhasin (hereinafter together the appellants), suing derivatively, among others, commenced this action, inter alia, to recover damages for personal injuries allegedly sustained by Kumar in a motor vehicle accident. The defendants moved, among other things, for summary judgment dismissing the complaint insofar as asserted by the appellants on the ground that Kumar did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. In an order entered June 5, 2019, the Supreme Court, inter alia, granted that branch of the defendants’ motion.

The defendants failed to meet their prima facie burden of showing that Kumar 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 submit competent medical evidence establishing, prima facie, that Kumar did not sustain a serious injury to the cervical region of his spine under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d), as the defendants’ expert found significant limitations in the range motion of the cervical region of Kumar's spine (see Singleton v. F & R Royal, Inc.,...