Villanueva v Lawson, 2016 NY Slip Op 04042 [139 AD3d 1045]

May 25, 2016

Appellate Division, Second Department

[*1]

Angelica Villanueva, Appellant,

v

Owen Lawson, Respondent.

Nicholas Rose, Forest Hills, NY, for appellant.

Martyn, Toher, Martyn & Rossi, Mineola, NY (Kelly A. Green and Timothy Campanella of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Lane, J.), dated July 21, 2015, which 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 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 NY2d 345 [2002]; Gaddy v Eyler , 79 NY2d 955, 956-957 [1992]). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injury to the lumbar region of the plaintiff’s spine did not constitute a serious injury 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 [2009]). In opposition, however, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to the lumbar region of her spine as a result of the subject accident ( see Perl v Meher , 18 NY3d 208 , 218-219 [2011]).

Accordingly, the Supreme Court should have denied the defendant’s motion for summary judgment dismissing the complaint. Chambers, J.P., Dickerson, Hinds-Radix and Connolly, JJ., concur. [Prior Case History: 2015 NY Slip Op 31392(U).].