PIZZO v. LUSTIG (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated November 8, 2021.  The order denied the plaintiff's motion for summary judgment on the issue of whether the plaintiff sustained 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 plaintiff moved for summary judgment on the issue of whether he sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.  In an order dated November 8, 2021, the Supreme Court denied the motion.  The plaintiff appeals.

“A plaintiff moving for summary judgment on the issue of serious injury must establish, prima facie, that he or she sustained a serious injury within the meaning of Insurance Law § 5102(d) and that the serious injury was causally related to the accident” (Degachi v. Faridi, 215 A.D.3d 733, 733–34, 187 N.Y.S.3d 85 [alteration and internal quotation marks omitted] ).  Contrary to the defendant's contentions, the plaintiff established, prima facie, that he sustained a serious injury to the cervical and lumbar regions of his spine under the permanent consequential limitation of use and significant limitation of use categories.  However, the plaintiff failed to eliminate all triable issues of fact as to whether the injuries to his spine were caused or exacerbated by the accident (see Ceri–Felix v. Remy, 217 A.D.3d 917, 918, 192 N.Y.S.3d 216;  Degachi v. Faridi, 215 A.D.3d at 734, 187 N.Y.S.3d 85;  Alexander v. Gordon, 95 A.D.3d 1245, 1247, 945 N.Y.S.2d 397).  As the plaintiff failed to meet his prima facie burden, we need not consider the sufficiency of the defendant's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The parties' remaining contentions either are improperly raised for the first time on appeal, are without merit, or need not be reached in light of our determination.

GENOVESI, J.P., CHRISTOPHER, WARHIT and VENTURA, JJ., concur.