Ronald Kellman, Jr., appellant, v. Lisaury E. Diaz, et al., respondents. (2026)

Argued—January 8, 2026

DECISION & ORDER

A/

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Phillip Hom, J.), entered February 21, 2024.  The order granted 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 reversed, on the law, with costs, and the defendant's 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 denied.

The plaintiff commenced this action against the defendants to recover damages for personal injuries that he alleged he 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 February 21, 2024, the Supreme Court granted the defendants' motion.  The plaintiff appeals.

The defendants met their prima facie burden of demonstrating that the plaintiff did not sustain a serious injury under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 353;  Holliday v. City of New Rochelle, 243 AD3d 648).  In opposition, however, the plaintiff raised triable issues of fact as to whether he sustained a serious injury to the lumbar region of his spine and to his left shoulder under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) through the sworn opinions and conclusions of certain experts, who, among other things, observed significant range-of-motion limitations during their examinations of the plaintiff over the years (see Perl v. Meher, 18 NY3d 208, 218–219;  Aragoncillo v. Berk, 241 AD3d 613, 614).

Accordingly, the Supreme Court should have 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 accident.

DUFFY, J.P., WOOTEN, LANDICINO and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court