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Zaid v Payano, 2020 NY Slip Op 04429 [186 AD3d 538]

August 5, 2020

Appellate Division, Second Department

[*1]

Fadel Zaid, Appellant,

v

Hector Payano, Respondent.

Greenberg Law P.C., New York, NY (Jennifer A. Shafer of counsel), for appellant.

Kelly, Rode & Kelly, LLP, Mineola, NY (Eric P. Tosca of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Lara J. Genovesi, J.), dated November 21, 2018. 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.

In support of his motion for summary judgment dismissing the complaint, 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 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 Taylor v Nicosia , 178 AD3d 1115 , 1116 [2019]; Staff v Yshua , 59 AD3d 614 [2009]).

However, in opposition, the plaintiff raised a triable issue of fact as to whether he sustained serious injuries to the cervical and lumbar regions 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]; Taylor v Nicosia , 178 AD3d at 1117).

Accordingly, the Supreme Court should have denied the defendant’s motion for summary judgment dismissing the complaint. Dillon, J.P., Hinds-Radix, Barros and Brathwaite Nelson, JJ., concur..