Lella v Aronoff, 2022 NY Slip Op 04797 [208 AD3d 468]
August 3, 2022
Appellate Division, Second Department
[*1]
Anthony P. Lella, Appellant,
v
Rachel P. Aronoff et al., Respondents.
Stanton Guzman & Miller, LLP, Franklin Square, NY (Stacey Rinaldi Guzman of counsel), for appellant.
Sette & Apoznanski (James G. Bilello, Hicksville, NY [Susan J. Mitola], of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Denise L. Sher, J.), entered February 6, 2020. The order, insofar as appealed from, granted that branch of the defendants’ motion which was 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 insofar as appealed from, on the law, with costs, and that branch of the defendants’ motion which was 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 is denied.
The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident on August 25, 2015. The defendants moved, inter alia, 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. In an order entered February 6, 2020, the Supreme Court, among other things, granted that branch of the defendants’ motion. The plaintiff appeals.
The defendants met their 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 accident ( see Toure v Avis Rent A Car Sys. , 98 NY2d 345 [2002]; Gaddy v Eyler , 79 NY2d 955, 956-957 [1992]). The defendants 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 he sustained a serious injury to the lumbar region of his spine 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 , 218-219 [2011]).
Since the defendants’ expert conceded that the alleged injury to the lumbar region of [*2] the plaintiff’s spine was caused by the accident, the burden never shifted to the plaintiff to raise a triable issue of fact regarding causation, or 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]).
Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was 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. Iannacci, J.P., Rivera, Chambers and Wooten, JJ., concur..