Shimona Shriki, respondent, v. New York City Transit Authority, et al., appellants. (2023)

Argued—February 2, 2023

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Gia Lynne Morris, J.), entered June 26, 2020.  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 she 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 subject accident.  In an order entered June 26, 2020, the Supreme Court denied the motion.  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) as a result of the accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345;  Gaddy v. Eyler, 79 N.Y.2d 955, 956–957).  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 her spine under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Zennia v. Ramsey, 208 AD3d 735, 735;  Melika v. Caraballo, 187 AD3d 1173, 1173;  Staubitz v. Yaser, 41 AD3d 698, 699).  Further, the defendants failed to establish, prima facie, that the alleged injuries to the cervical region of the plaintiff's spine were not caused by the accident (see Zennia v. Ramsey, 208 AD3d at 735;  Luigi v. Avis Cab Co., Inc., 96 AD3d 809;  Reyes v. Diaz, 82 AD3d 484;  see generally Jilani v. Palmer, 83 AD3d 786, 787).

Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint, without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853;  Hilaire v. Trotta, 140 AD3d 930, 931).

The parties' remaining contentions need not be reached in light of our determination.

DUFFY, J.P., RIVERA, GENOVESI and TAYLOR, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court