Jesus Hernandez, appellant, v. Faisal Ashiq, respondent. (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff Jesus Hernandez appeals from an order of the Supreme Court, Kings County (Aaron D. Maslow, J.), dated March 15, 2023.  The order granted the motion of the defendant Faisal Ashiq for summary judgment dismissing the amended complaint insofar as asserted against him by the plaintiff Jesus Hernandez on the ground that he 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 motion of the defendant Faisal Ashiq for summary judgment dismissing the amended complaint insofar as asserted against him by the plaintiff Jesus Hernandez is denied.

The plaintiffs commenced this action to recover damages for personal injuries that they allegedly sustained in a motor vehicle accident.  The defendant Faisal Ashiq (hereinafter the defendant) moved for summary judgment dismissing the amended complaint insofar as asserted against him by the plaintiff Jesus Hernandez on the ground that Hernandez did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident.  In an order dated March 15, 2023, the Supreme Court granted the motion.  Hernandez appeals.

On appeal, Hernandez does not challenge the Supreme Court's determination that the defendant met his prima facie burden of showing that Hernandez did not sustain a serious injury under the permanent consequential limitation of use, significant limitation of use, and 90/180–day categories of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180).  However, Hernandez correctly contends that, in opposition, he raised a triable issue of fact as to whether he sustained a serious injury to the cervical and lumbar regions of his spine under the permanent consequential limitation of use category (see Perl v. Meher, 18 N.Y.3d 208, 217–219, 936 N.Y.S.2d 655, 960 N.E.2d 424;  Daley v. Jennette–Mingo, 205 A.D.3d 878, 878–879, 166 N.Y.S.3d 567).  Further, the defendant failed to establish, prima facie, that the alleged injuries to the cervical and lumbar regions of Hernandez's spine were not caused by the accident, and the burden therefore did not shift to Hernandez to raise a triable issue of fact as to causation (see Baptiste v. New York City Tr. Auth., 230 A.D.3d 629, 630, 217 N.Y.S.3d 622;  Skeldon v. Faessler, 219 A.D.3d 851, 853, 195 N.Y.S.3d 277) or to explain any gap in treatment (see Cortez v. Nugent, 175 A.D.3d 1383, 1384, 106 N.Y.S.3d 619).

We need not reach Hernandez's remaining contentions in light of our determination.

Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the amended complaint insofar as asserted against him by Hernandez on the ground that Hernandez did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident.

CHAMBERS, J.P., MILLER, WAN and HOM, JJ., concur.