Campos v Sabella, 2016 NY Slip Op 04377 [140 AD3d 820]

June 8, 2016

Appellate Division, Second Department

[*1]

Vilma Campos, Appellant,

v

Steven Sabella, Respondent.

Levine and Wiss, PLLC (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.

Bruno, Gerbino & Soriano, LLP, Melville, NY (Mitchell L. Kaufman of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated February 19, 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 plaintiff’s right shoulder 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 her right shoulder ( 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. Balkin, J.P., Hall, Miller and LaSalle, JJ., concur. [Prior Case History: 2015 NY Slip Op 30279(U).].