WASHINGTON v. PARRON AMARO (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Edgar G. Walker, J.), dated September 8, 2020.  The order granted the defendants’ motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Dominique Washington on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

ORDERED that the appeal by the plaintiff Jacquan Casseus is dismissed, as that plaintiff is not aggrieved by the order appealed from (see CPLR 5511;  Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132);  and it is further,

ORDERED that the order is reversed on the appeal by the plaintiff Dominique Washington, on the law, and the defendants’ motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Dominique Washington is denied;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff Dominique Washington.

The plaintiffs commenced this action to recover damages for personal injuries they allegedly sustained in a motor vehicle accident.  The defendants moved for summary judgment dismissing the complaint insofar as asserted by the plaintiff Dominique Washington on the ground that she 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 8, 2020, the Supreme Court granted the motion.  Washington appeals.

The defendants met their prima facie burden of demonstrating that Washington 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., Inc., 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 demonstrated, prima facie, that Washington did not sustain a serious injury under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180).  In opposition, however, Washington raised a triable issue of fact as to whether she sustained a serious injury to the cervical region of her spine under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) (see Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655, 960 N.E.2d 424).

Additionally, the defendants failed to establish, prima facie, that the alleged injuries to the cervical region of Washington's spine were not caused by the accident (see Navarro v. Afifi, 138 A.D.3d 803, 804, 30 N.Y.S.3d 188).  Since the defendants failed to establish that the alleged injuries to the cervical region of Washington's spine were not caused by the accident, the burden never shifted to Washington to explain any gap in her treatment (see Cortez v. Nugent, 175 A.D.3d 1383, 1384, 106 N.Y.S.3d 619;  see generally Pommells v. Perez, 4 N.Y.3d 566, 572, 797 N.Y.S.2d 380, 830 N.E.2d 278).

The defendants’ remaining contentions 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 insofar as asserted by Washington.

DILLON, J.P., CONNOLLY, CHAMBERS and WOOTEN, JJ., concur.