Wayne Hightower, appellant, v. Christopher R. Ghio, respondent. (2011)

Submitted-January 5, 2011

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Ritter, J.), dated June 1, 2010, which granted the defendant's 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).

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

The defendant established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345;  Gaddy v. Eyler, 79 N.Y.2d 955, 956-957;  Acosta v. Rubin, 2 AD3d 657, 659).   In opposition, the plaintiff raised triable issues of fact as to whether he sustained serious injuries to the cervical and/or thoracolumbar regions of his spine under the permanent consequential limitation of use and/or the significant limitation of use categories of Insurance Law § 5102(d) (see Compass v. GAE Transp., Inc., 79 AD3d 1091;  Boskey v. GTWY, Inc., 78 AD3d 1095).

Although the defendant supported his initial moving papers with evidence that the plaintiff was involved in an automobile accident approximately five years prior to the subject accident, he failed to make a prima facie showing that the plaintiff's injuries were caused by the prior accident.   Therefore, the burden did not shift to the plaintiff to raise a triable issue of fact as to whether his injuries were caused by the subject accident, rather than by the prior accident (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324;  see also Stukas v. Streiter, AD3d, 2011 N.Y. Slip Op 01832 [2d Dept 2011] ).

Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).

SKELOS, J.P., COVELLO, ENG, CHAMBERS and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court