CARRIER v. GLEBA (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Wavny Toussaint, J.), dated July 16, 2021.  The order denied 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.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle 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 accident.  In an order dated July 16, 2021, the Supreme Court denied the defendants' motion, and the defendants appeal.

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) (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' expert, who examined the plaintiff, set forth range-of-motion findings for the cervical and lumbar regions of the plaintiff's spine, but failed to compare those findings to what is normal (see Pupko v. Hassan, 149 A.D.3d 988, 989, 50 N.Y.S.3d 295;  Starkey v. Curry, 94 A.D.3d 866, 941 N.Y.S.2d 882).  Nevertheless, with respect to causation, the defendants demonstrated, prima facie, that the plaintiff's alleged injuries were not caused by the subject accident (see Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424).

In opposition, however, the plaintiff raised a triable issue of fact as to whether the alleged injuries to the cervical and lumbar regions of his spine were caused by the accident (see id. at 787, 920 N.Y.S.2d 424).  We have not considered the defendants' contention regarding a gap in treatment, since it was improperly raised for the first time in their reply papers and not addressed by the Supreme Court in its order (see Diaz–Montez v. JEA Bus Co., Inc., 175 A.D.3d 1384, 1386, 108 N.Y.S.3d 166;  Davis–Hassan v. Siad, 101 A.D.3d 932, 933, 957 N.Y.S.2d 205).

Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.

CONNOLLY, J.P., IANNACCI, MILLER and FORD, JJ., concur.