REDDICK v. HICKEY (2021)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Allan B. Weiss, J.), entered December 23, 2019.  The judgment, upon an order of the same court entered August 28, 2019, granting 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 in favor of the defendants and against the plaintiff dismissing the complaint.

ORDERED that the judgment is reversed, on the law, with costs, the defendants’ motion for summary judgment dismissing the complaint is denied, the complaint is reinstated, and the order is modified accordingly.

On May 4, 2016, a vehicle operated by the defendant Terrence Hickey and owned by the defendant Hallen Construction, Inc. (hereinafter together the defendants), allegedly came into contact with a wire cable, causing the wire cable to collapse and strike the plaintiff.  The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in the 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 subject accident.  In an order entered August 28, 2019, the Supreme Court granted the defendants’ motion.  On December 23, 2019, a judgment was entered in favor of the defendants and against the plaintiff dismissing the complaint.  The plaintiff appeals from the judgment.

The defendants failed to meet 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 subject accident (see Toure v. Avis Rent A Car Sys., Inc., 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 failed to submit competent medical evidence establishing, prima facie, that the plaintiff did not sustain a serious injury to the cervical region of his spine under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d), as their expert found significant limitations in the range of motion of this body part (see Singleton v. F & R Royal, Inc., 166 A.D.3d 837, 838, 88 N.Y.S.3d 81;  Nunez v. Teel, 162 A.D.3d 1058, 1059, 75 N.Y.S.3d 541;  Mercado v. Mendoza, 133 A.D.3d 833, 834, 19 N.Y.S.3d 757;  Miller v. Bratsilova, 118 A.D.3d 761, 987 N.Y.S.2d 444).  Further, the defendants failed to establish, prima facie, that the alleged injury to the cervical region of the plaintiff's spine was not caused by the subject accident (see Cortez v. Nugent, 175 A.D.3d 1383, 1384, 106 N.Y.S.3d 619;  Straussberg v. Marghub, 108 A.D.3d 694, 695, 968 N.Y.S.2d 898;  Kearney v. Garrett, 92 A.D.3d 725, 726, 938 N.Y.S.2d 349).

Since the defendants failed to meet their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Che Hong Kim v. Kossoff, 90 A.D.3d 969, 934 N.Y.S.2d 867).

Accordingly, the Supreme Court improperly granted the defendants’ motion for summary judgment dismissing the complaint.

RIVERA, J.P., HINDS–RADIX, CONNOLLY and WOOTEN, JJ., concur.