HONG KI KIM v. DESMOND (2020)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Leonard Livote, J.), entered February 7, 2019.  The order, insofar as appealed from, granted that branch of the defendants' motion which was 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 order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was 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 that occurred on December 15, 2015.  The defendants moved, inter alia, 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.  In an order entered February 7, 2019, the Supreme Court, among other things, granted that branch of the defendants' motion.  The plaintiff appeals.

The defendants met their prima facie burden of showing 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).  The defendants submitted competent medical evidence establishing, prima facie, that the alleged injury to the plaintiff's left shoulder did not constitute a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Jeehyun Choi v. Joel, 181 A.D.3d 660, 117 N.Y.S.3d 867;  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 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) (see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424).

Further, the defendants failed to establish that the alleged injury to the plaintiff's left shoulder was not causally related to the subject accident (see Chiu Yuan Hu v. Frenzel, 163 A.D.3d 918, 80 N.Y.S.3d 436;  Navarro v. Afifi, 138 A.D.3d 803, 30 N.Y.S.3d 188;  Rivera v. Ramos, 132 A.D.3d 655, 17 N.Y.S.3d 739).  Contrary to the defendants' contention, the plaintiff's expert was not required to address the plaintiff's prior accident history as the defendants failed to make a prima facie showing that the alleged injury to the plaintiff's left shoulder was caused by a prior accident and not the subject accident (see Jean–Baptiste v. Tobias, 88 A.D.3d 962, 963, 931 N.Y.S.2d 645).  Therefore, the burden did not shift to the plaintiff to raise a triable issue of fact as to whether the alleged injury to his left shoulder was caused by the subject accident, rather than by his prior accident (see id. at 963, 931 N.Y.S.2d 645, Messiana v. Drivas, 85 A.D.3d 744, 925 N.Y.S.2d 148;  Hightower v. Ghio, 82 A.D.3d 934, 919 N.Y.S.2d 43).

Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was 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.

DILLON, J.P., BALKIN, COHEN and WOOTEN, JJ., concur.