HARVARD v. METRO PROVISIONS CORP (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Richard J. Montelione, J.), dated September 17, 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 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 denied.

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 September 17, 2024, the Supreme Court granted the motion.  The plaintiff appeals.

The defendants met their prima facie burden of demonstrating 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 submitted competent medical evidence establishing, prima facie, that the alleged injuries to the plaintiff's right hip and the cervical and lumbar regions of his spine did not constitute serious injuries under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v. Yshua, 59 AD3d 614).  In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained serious injuries to his right hip and the cervical and lumbar regions of his spine under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) (see Perl v. Meher, 18 NY3d 208).  Furthermore, the defendants failed to establish, prima facie, that the injuries to the plaintiff's right hip and the cervical and lumbar regions of his spine were not caused by the accident.  The defendants' submissions failed to address the plaintiff's claims, set forth in the bill of particulars, that, as a result of the defendants' negligence, the accident exacerbated preexisting injuries to his right hip and the cervical and lumbar regions of his spine (see Weber v. Kalisky, 218 AD3d 629, 630;  D'Augustino v. Bryan Auto Parts, Inc., 152 AD3d 648, 650;  Sanclemente v. MTA Bus Co., 116 AD3d 688, 689).

The parties' remaining contentions either are not properly before this Court or need not be reached in light of our determination.

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.

BARROS, J.P., CHAMBERS, WAN and QUIRK, JJ., concur.