NERA v. KPOKOU (2025)

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 14, 2024.  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 entered August 14, 2024, 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., 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).  The defendants demonstrated, prima facie, that the plaintiff did not sustain a serious injury under the permanent consequential limitation of use and 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).  Moreover, contrary to the plaintiff's contention, the defendants’ medical evidence also established, prima facie, that the alleged injuries to the plaintiff's left shoulder and to the cervical and lumbar regions of the plaintiff's spine were degenerative in nature and not caused by the accident (see Amirova v. JND Trans, Inc., 206 A.D.3d 601, 602, 167 N.Y.S.3d 410;  Gash v. Miller, 177 A.D.3d 950, 111 N.Y.S.3d 200;  Gouvea v. Lesende, 127 A.D.3d 811, 6 N.Y.S.3d 607).

In opposition, however, the plaintiff raised triable issues of fact as to whether he sustained serious injuries to his left shoulder and 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) and whether the alleged injuries were caused by the accident (see Ramkumar v. Grand Style Transp. Enters. Inc., 22 N.Y.3d 905, 906–907, 976 N.Y.S.2d 1, 998 N.E.2d 801;  Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655, 960 N.E.2d 424).  Contrary to the defendants’ contentions, the plaintiff's expert adequately addressed degeneration and raised a triable issue of fact as to whether the plaintiff's injuries were caused by the accident (see Pacannuayan v. New York City Tr. Auth., 231 A.D.3d 1164, 1165, 219 N.Y.S.3d 179;  Johnson v. Cristino, 91 A.D.3d 604, 606, 936 N.Y.S.2d 275;  Park v. Shaikh, 82 A.D.3d 1066, 1067, 918 N.Y.S.2d 887).  Finally, the plaintiff's affidavit submitted in opposition to the defendants’ motion adequately explained his gap in treatment.  The plaintiff averred that he stopped treatment because his no-fault benefits were terminated and he could no longer afford to pay for treatment (see Ramkumar v. Grand Style Transp. Enters. Inc., 22 N.Y.3d at 906–907, 976 N.Y.S.2d 1, 998 N.E.2d 801;  Pacannuayan v. New York City Tr. Auth., 231 A.D.3d at 1165, 219 N.Y.S.3d 179;  Abdelaziz v. Fazel, 78 A.D.3d 1086, 1086, 912 N.Y.S.2d 103).

The parties’ remaining contentions are without merit.

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.

GENOVESI, J.P., FORD, LOVE and GOLIA, JJ., concur.