Nolasco-Ochoa v Kollanethu, 2020 NY Slip Op 01625 [181 AD3d 689]
March 11, 2020
Appellate Division, Second Department
[*1]
Rosario Nolasco-Ochoa, Appellant,
v
Jacob Kollanethu et al., Respondents.
Mallilo & Grossman, Flushing, NY (Joanna J. Lambridis of counsel), for appellant.
Sette & Apoznanski (Russo & Tambasco, Melville, NY [Yamile Al-Sullami], 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 (Jerome C. Murphy, J.), entered October 4, 2018. 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 she allegedly sustained in a motor vehicle accident that occurred on July 5, 2016. 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. The Supreme Court granted that branch of the defendants’ motion, and 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 subject 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 injuries to the cervical and lumbar regions of the plaintiff’s spine did not constitute serious injuries 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 serious injuries to the cervical and lumbar regions of her 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]).
Moreover, as the defendants failed to establish, prima facie, a lack of causation ( see Straussberg v Marghub , 108 AD3d 694 , 695 [2013]; Kearney v Garrett , 92 AD3d 725 , 726 [2012]), the burden did not shift to the plaintiff to raise a triable issue of fact regarding causation or to explain any gap in treatment ( see Pommells v Perez , 4 NY3d 566 , 572 [2005]; Torres v Rettaliata , 171 AD3d 829 , 829-830 [2019]; Lambropoulos v Gomez , 166 AD3d 952 [2018]).
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. Balkin, J.P., Austin, LaSalle and Iannacci, JJ., concur..