GOMEZ v. CITY LIVERY LEASING BROOKLYN INC (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Richard J. Montelione, J.), dated October 19, 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 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 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 October 19, 2023, the Supreme Court granted the motion.  The plaintiff appeals.

The defendants met their prima facie burden of demonstrating that the plaintiff 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 demonstrated, 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 a serious injury to his right knee under the significant limitation of use category 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).  Contrary to the defendants’ contention, Insurance Law § 5102(d) does not expressly set forth any temporal requirement for the significant limitation of use category, and a “significant limitation” need not be permanent in order to constitute a serious injury (see Strong v. Sigman, 224 A.D.3d 932, 206 N.Y.S.3d 176;  Vasquez v. Almanzar, 107 A.D.3d 538, 539–540, 967 N.Y.S.2d 361;  Estrella v. GEICO Ins. Co., 102 A.D.3d 730, 731–732, 959 N.Y.S.2d 210).

The defendants’ remaining contentions either were improperly raised for the first time in their reply papers or need not be reached in light of our determination.

Accordingly, the Supreme Court should have denied 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 accident.

IANNACCI, J.P., MILLER, DOWLING and LOVE, JJ., concur.