ARAGONCILLO v. BERK (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Danielle M. Peterson, J.), dated December 29, 2023.  The order granted the defendant's motion for summary judgment dismissing the amended 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 defendant's motion for summary judgment dismissing the amended 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 defendant moved for summary judgment dismissing the amended 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 December 29, 2023, the Supreme Court granted the defendant's motion.  The plaintiff appeals.

On appeal, the plaintiff does not challenge the Supreme Court's determination that the defendant met his 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., 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).  In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury to the lumbar region of his spine under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) through the sworn opinions and conclusions of his expert, who, among other things, observed significant range-of-motion limitations during a recent examination of the plaintiff (see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424;  Zheng v. Sun & Son, Inc., 233 A.D.3d 733, 223 N.Y.S.3d 201;  Master v. Boiakhtchion, 122 A.D.3d 589, 590, 996 N.Y.S.2d 116).

Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the amended 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., FORD, TAYLOR and MCCORMACK, JJ., concur.