PETRIC v. RETSINA CAB CORPORATION (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Aaron D. Maslow, J.), dated August 11, 2023.  The order granted 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 reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is 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 accident.  In an order dated August 11, 2023, the Supreme Court granted the motion.  The plaintiff appeals.

The defendants established, prima facie, that the plaintiff did not sustain a serious injury under 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).  In opposition, however, the plaintiff raised a triable issue 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 of Insurance Law § 5102(d) (see Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655, 960 N.E.2d 424).

Additionally, the defendants failed to meet their prima facie burden of showing that the plaintiff's injuries were not caused by the accident.  The defendants' submissions failed to address the plaintiff's claims, set forth in the bill of particulars, that, as a result of the defendants' negligence, the accident exacerbated preexisting injuries to the cervical and lumbar regions of his spine (see Weber v. Kalisky, 218 A.D.3d 629, 630, 192 N.Y.S.3d 248;  D'Augustino v. Bryan Auto Parts, Inc., 152 A.D.3d 648, 650, 59 N.Y.S.3d 104;  Sanclemente v. MTA Bus Co., 116 A.D.3d 688, 689, 983 N.Y.S.2d 280).  Since the defendants failed to establish that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine were not caused by the accident, the burden never shifted to the plaintiff to explain any gap in treatment (see Cortez v. Nugent, 175 A.D.3d 1383, 1384, 106 N.Y.S.3d 619;  see generally Pommells v. Perez, 4 N.Y.3d 566, 572, 797 N.Y.S.2d 380, 830 N.E.2d 278).

Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.

DILLON, J.P., WOOTEN, TAYLOR and MCCORMACK, JJ., concur.