HOLLIDAY v. CITY OF NEW ROCHELLE (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Hal B. Greenwald, J.), dated August 29, 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 August 29, 2023, the Supreme Court granted the motion.

The defendants demonstrated, prima facie, that the plaintiff 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).  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).

Further, the defendants failed to establish, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine were not caused by the accident (see Zennia v. Ramsey, 208 A.D.3d 735, 735, 171 N.Y.S.3d 921;  Luigi v. Avis Cab Co., Inc., 96 A.D.3d 809, 949 N.Y.S.2d 61;  Reyes v. Diaz, 82 A.D.3d 484, 917 N.Y.S.2d 632;  see generally Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424).  The defendants' submissions failed to eliminate all triable issues of fact as to whether, as a result of the defendants' negligence, the accident exacerbated preexisting injuries to the cervical and lumbar regions of the plaintiff's 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).  The burden, therefore, did not shift to the plaintiff to raise a triable issue of fact as to causation or to explain any gap in treatment (see Valdez v. Classic Hauling, LLC, 233 A.D.3d 959, 960, 223 N.Y.S.3d 283;  Skeldon v. Faessler, 219 A.D.3d 851, 853, 195 N.Y.S.3d 277;  Isidor v. Banks, 208 A.D.3d 462, 463, 171 N.Y.S.3d 359).

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.

BARROS, J.P., IANNACCI, WAN and TAYLOR, JJ., concur.