Confredo v Moore, 2022 NY Slip Op 06784 [210 AD3d 1050]

November 30, 2022

Appellate Division, Second Department

[*1]

Anthony S. Confredo, Appellant,

v

Deborah T. Moore, Respondent.

Dell & Dean, PLLC, Garden City, NY (Joseph G. Dell and Mischel & Horn, P.C. [Scott T. Horn and Andrew J. Fisher], of counsel), for appellant.

Law Offices of Brian J. McGovern, LLC, New City, NY, for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Martha L. Luft, J.), dated August 8, 2019. The order granted 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.

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 plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident on July 20, 2015. The defendant 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. The Supreme Court granted the motion, and the plaintiff appeals.

The defendant met her 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 subject accident ( see Toure v Avis Rent A Car Sys. , 98 NY2d 345 [2002]; Gaddy v Eyler , 79 NY2d 955, 956-957 [1992]). The defendant demonstrated, prima facie, that the plaintiff 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 AD3d 614 [2009]). In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained serious injuries to the lumbosacral region of his spine and his right shoulder 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 [2011]).

Since the defendant failed to establish, prima facie, that the alleged injuries to the lumbosacral region of the plaintiff’s spine and his right shoulder were not caused by the subject accident, the burden never shifted to the plaintiff to explain any gap in treatment ( see Cortez v Nugent , 175 AD3d 1383 , 1384 [2019]; see generally Pommells v Perez , 4 NY3d 566 , 572 [2005]).

The parties’ remaining contentions need not be reached in light of our determination. [*2] Accordingly, the Supreme Court should have denied the defendant’s motion for summary judgment dismissing the complaint. Brathwaite Nelson, J.P., Rivera, Chambers and Zayas, JJ., concur..