RAMPINO v. SHAFFREN (2011)

In an action to recover damages for personal injuries, the defendants Bernard S. Davis and Pentagon Plumbing and Mechanical Corp. appeal, and the defendant Steven J. Shaffren separately appeals, from an order of the Supreme Court, Kings County (Schmidt, J.), dated March 22, 2011, which denied their motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Robert S. Rampino on the ground that that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs payable by the appellants appealing separately and filing separate briefs.

The defendants met their prima facie burden of showing that the plaintiff Robert S. Rampino did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject 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). Rampino alleged, inter alia, that as a result of the subject accident, he sustained injuries to the cervical and lumbosacral regions of his spine. On the motion for summary judgment, the defendants submitted evidence establishing, among other things, prima facie, that the alleged injuries to the cervical and lumbosacral regions of Rampino's spine did not constitute serious injuries within the meaning of Insurance Law § 5102(d) (see Rodriguez v. Huerfano, 46 A.D.3d 794, 795, 849 N.Y.S.2d 275). Although the defendants also attempted to establish, prima facie, that those alleged injuries were, in any event, not caused by the accident, they failed to do so, as their evidentiary submissions actually demonstrated the existence of a triable issue of fact as to causation (see Luby v. Tsybulevskiy, 89 A.D.3d 689, 931 N.Y.S.2d 902; Kelly v. Ghee, 87 A.D.3d 1054, 1055, 929 N.Y.S.2d 763; see also Hightower v. Ghio, 82 A.D.3d 934, 935, 919 N.Y.S.2d 43).

In opposition, Rampino submitted evidence raising a triable issue of fact as to whether the alleged injuries to the cervical and lumbosacral regions of his spine constituted serious injuries under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102(d) (see Perl v. Meher, 18 N.Y.3d 208, –––– – ––––, –––N.Y.S.2d ––––, ––– N.E.2d –––– [2011] ). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint insofar as asserted by Rampino.