SANTOS v. FIKTUS (2024)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Phillip Hom, J.), entered August 8, 2023.  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 under the 90/180–day category of Insurance Law § 5102(d) and to his left knee and left shoulder 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 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 under the 90/180–day category of Insurance Law § 5102(d) and to his left knee and left shoulder within the meaning of Insurance Law § 5102(d) as a result of the subject accident are denied.

The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident.  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 entered August 8, 2023, the Supreme 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 under the 90/180–day category of Insurance Law § 5102(d) and to his left knee and left shoulder within the meaning of Insurance Law § 5102(d) as a result of the accident and denied 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 the cervical and lumbar regions of his spine within the meaning of Insurance Law § 5102(d) as a result of the accident.  The plaintiff appeals.

The Supreme Court should not have 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 under the 90/180–day category and to his left knee and left shoulder under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d).  Since the court properly determined that the plaintiff raised triable issues of fact as to whether he sustained serious injuries to the cervical and lumbar regions of his spine under the permanent consequential limitation of use and significant limitation of use categories, it was unnecessary to determine whether the plaintiff's other alleged injuries met 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;  Detoma v. Dobson, 214 A.D.3d 949, 952, 186 N.Y.S.3d 311;  Pollet v. Charyn, 200 A.D.3d 728, 730, 159 N.Y.S.3d 92).

The defendants contend, as an alternative ground for affirmance (see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545–546, 470 N.Y.S.2d 564, 458 N.E.2d 1241), that they were entitled to summary judgment because the plaintiff's injuries were not caused by the accident.  Contrary to the defendants’ contention, they failed to establish, prima facie, that the plaintiff's injuries were not caused by the accident (see Navarro v. Afifi, 138 A.D.3d 803, 804, 30 N.Y.S.3d 188).  Since the defendants failed to meet their prima facie burden with respect to causation, it is not necessary to determine whether the submissions by the plaintiff in opposition were sufficient to raise a triable issue of fact as to whether his injuries were caused by the accident (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Che Hong Kim v. Kossoff, 90 A.D.3d 969, 969, 934 N.Y.S.2d 867).

Accordingly, the Supreme Court should have denied 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 under the 90/180–day category of Insurance Law § 5102(d) and to his left knee and left shoulder within the meaning of Insurance Law § 5102(d) as a result of the accident.

MALTESE, J.P., GENOVESI, WAN and GOLIA, JJ., concur.