SANG JOON PARK v. ORVIETO (2019)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Cheree A. Buggs, J.), entered September 5, 2017.  The order granted the motion of the defendant Lawrence Orvieto for summary judgment dismissing the complaint insofar as asserted against him 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 motion of the defendant Lawrence Orvieto for summary judgment dismissing the complaint insofar as asserted against him is denied.

The plaintiff commenced this action to recover damages for personal injuries he alleges he sustained in a motor vehicle accident on April 2, 2014.  The defendant Lawrence Orvieto (hereinafter the defendant) moved for summary judgment dismissing the complaint insofar as asserted against him 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.  The Supreme Court granted the motion, and the plaintiff appeals.

The defendant established, prima facie, 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., 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) through competent medical evidence demonstrating, prima facie, that the plaintiff's alleged left shoulder injury did not constitute 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, 614, 874 N.Y.S.2d 180).

In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury to his left shoulder under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) through the affirmation of his expert (see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424).  The burden did not shift to the plaintiff to raise a triable issue of fact regarding causation or to explain any gap in treatment, as the defendant failed to establish, prima facie, a lack of causation (see Pommells v. Perez, 4 N.Y.3d 566, 577–578, 797 N.Y.S.2d 380, 830 N.E.2d 278;  Lambropoulos v. Gomez, 166 A.D.3d 952, 86 N.Y.S.3d 737).

Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint insofar as asserted against him.

DILLON, J.P., CHAMBERS, MILLER and DUFFY, JJ., concur.