Thomas v. Pascal ( 2017 )

Thomas v Pascal (2017 NY Slip Op 08708)

Thomas v Pascal

2017 NY Slip Op 08708

Decided on December 13, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 13, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
LEONARD B. AUSTIN, J.P.
SANDRA L. SGROI
SYLVIA O. HINDS-RADIX
ANGELA G. IANNACCI, JJ.

2016-04706
(Index No. 11559/13)

[*1]Apphia Thomas, appellant,

v

Robert Pascal, et al., respondents.

Michael A. Cervini, Elmhurst, NY, for appellant.

Russo & Tambasco, Melville, NY (Susan J. Mitola and Stephen Carden of counsel), for respondents Robert Pascal and Medegine St. Fort Colin.

Cuomo LLC, Mineola, NY (Matthew A. Cuomo and Joseph Lupo of counsel), for respondent Glen K. Rambharack.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Modica, J.), entered March 9, 2016, which granted the motion of the defendants Robert Pascal and Medegine St. Fort Colin for summary judgment dismissing the complaint insofar as asserted against them 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 and, in effect, upon searching the record, awarded summary judgment dismissing the complaint insofar as asserted against the nonmoving defendant, Glen K. Rambharack.

ORDERED that the order is reversed, on the law, with one bill of costs payable by the defendants appearing separately and filing separate briefs, and the motion of the defendants Robert Pascal and Medegine St. Fort Colin for summary judgment dismissing the complaint insofar as asserted against them is denied.

The moving 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; Gaddy v Eyler, 79 NY2d 955, 956-957). They 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). 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).

Accordingly, the Supreme Court should have denied the moving defendants' motion for summary judgment dismissing the complaint insofar as asserted against them, and should not have, in effect, upon searching the record, awarded summary judgment dismissing the complaint insofar as asserted against the nonmoving defendant.

AUSTIN, J.P., SGROI, HINDS-RADIX and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court