AWADH v. MORONTA

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Supreme Court, Appellate Division, Second Department, New York.

Omar AWADH, appellant, v. Peterson MORONTA, etc., respondent.

Decided: July 05, 2011

WILLIAM F. MASTRO, J.P., ANITA R. FLORIO, JOHN M. LEVENTHAL, ARIEL E. BELEN, and JEFFREY A. COHEN, JJ. Joseph Giaramita, Jr., Brooklyn, N.Y., for appellant. Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated July 7, 2010, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

 The defendant met his 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 subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   The plaintiff alleged, inter alia, that he sustained certain injuries to the lumbar region of his spine as a result of the subject accident.   The defendant, among other things, provided competent medical evidence establishing, prima facie, that the alleged injuries to the lumbar region of the plaintiff's spine did not constitute a serious injury within the meaning of Insurance Law § 5102(d) (see Perl v. Meher, 74 A.D.3d 930, 902 N.Y.S.2d 632;  Gonzales v. Fiallo, 47 A.D.3d 760, 849 N.Y.S.2d 182).

 However, in opposition, the plaintiff provided competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the lumbar region of his spine constituted a serious injury under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102(d) (see Dixon v. Fuller, 79 A.D.3d 1094, 1094–1095, 913 N.Y.S.2d 776).   Furthermore, contrary to the Supreme Court's determination, he provided a reasonable explanation for the cessation of his medical treatment (see Abdelaziz v. Fazel, 78 A.D.3d 1086, 912 N.Y.S.2d 103).

Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.

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