Pollet v. Charyn

200 A.D.3d 728

159 N.Y.S.3d 92

Leigh POLLET, appellant-respondent,

v.Jillian CHARYN, et al., respondents-appellants.

2019–07033

Index No. 608806/16

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

Argued—October 26, 2021

December 1, 2021

Bergman, Bergman, Fields & Lamonsoff, LLP, Hicksville, NY (Michael E. Bergman, Amit Sondhi, Julie T. Mark, and Clifford Gabel of counsel), for appellant—respondent.

Kelly, Rode and Kelly, LLP, Mineola, NY (Eric P. Tosca of counsel), for respondents-appellants.

LEONARD B. AUSTIN, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, and the defendants cross-appeal, from an order of the Supreme Court, Nassau County (James P. McCormack, J.), dated March 13, 2019. The order, insofar as appealed from, granted those branches of the defendants’ motion which were for summary judgment dismissing so much of the complaint as alleged that the plaintiff sustained serious injuries to his shoulders and chest and the cervical and lumbar regions of his spine, and under the 90/180–day category within the meaning of Insurance Law § 5102(d) as a result of the subject accident. The order, insofar as cross-appealed from, denied that branch of the defendants’ motion which was for summary judgment dismissing so much of the complaint as alleged that the plaintiff sustained a serious injury to his abdomen within the meaning of Insurance Law § 5102(d) as a result of the accident, and granted the plaintiff's motion for summary judgment on the issue of liability.

ORDERED that the order is reversed insofar as appealed from, on the law, and those branches of the defendants’ motion which were for summary judgment dismissing so much of the complaint as alleged that the plaintiff sustained serious injuries to his shoulders and chest and the cervical and lumbar regions of his spine, and under the 90/180–day category within the meaning of Insurance Law § 5102(d) as a result of the subject accident is denied; and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

On December 11, 2014, a vehicle operated by the plaintiff was struck in the rear by a vehicle operated by the defendant Jillian Charyn (hereinafter the defendant driver) and owned by the defendant Howard Charyn. The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in the accident. The plaintiff moved for summary judgment on the issue of liability. 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 subject accident.

In an order dated March 13, 2019, the Supreme Court granted the plaintiff's motion for summary judgment on the issue of liability. In addition, the court granted those branches of the defendants’ motion which were for summary judgment dismissing so much of the complaint as alleged that the plaintiff sustained serious injuries to his shoulders and chest and the cervical and lumbar regions of his spine, and under the 90/180–day category within the meaning of Insurance Law § 5102(d) as a result of the subject accident, and denied that branch of the same motion which was for summary judgment dismissing so much of the complaint as alleged that the plaintiff sustained a serious injury to his abdomen within the meaning of Insurance Law § 5102(d) as a result of the accident. The plaintiff appeals, and the defendants cross-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 subject 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 papers submitted by the defendants failed to eliminate triable issues of fact regarding the plaintiff's claim, set forth in the bill of particulars, that he sustained a serious injury to his abdomen under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) as a result of the accident (see Cortez v. Nugent, 175 A.D.3d 1383, 1384, 106 N.Y.S.3d 619 ; Straussberg v. Marghub, 108 A.D.3d 694, 695, 968 N.Y.S.2d 898 ; Kearney v. Garrett, 92 A.D.3d 725, 726, 938 N.Y.S.2d 349 ).

As the defendants failed to establish, prima facie, that the plaintiff did not sustain a serious injury to his abdomen, it was unnecessary for the Supreme Court to determine whether the evidence submitted by the plaintiff raised a triable issue of fact as to whether his other alleged injuries meet the "no fault" threshold (see Linton v. Nawaz, 14 N.Y.3d 821, 822, 900 N.Y.S.2d 239, 926 N.E.2d 593 ; Navarro v. Afifi, 138 A.D.3d 803, 804, 30 N.Y.S.3d 188 ; Chul Koo Jeong v. Denike, 137 A.D.3d 1189, 1190, 28 N.Y.S.3d 393 ; Hughes v. Cai, 31 A.D.3d 385, 385–386, 818 N.Y.S.2d 538 ). Thus, the court should have denied the defendants’ motion for summary judgment dismissing the complaint in its entirety.

Turning to the plaintiff's motion for summary judgment on the issue of liability, a "plaintiff is no longer required to show freedom from comparative fault to establish his or her prima facie entitlement to judgment as a matter of law on the issue of...