Gomez v. New York City Transit Authority , 153 A.D.3d 501 ( 2017 )

Gomez v New York City Tr. Auth. (2017 NY Slip Op 05939)

Gomez v New York City Tr. Auth.

2017 NY Slip Op 05939

Decided on August 2, 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 August 2, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
LEONARD B. AUSTIN
SHERI S. ROMAN
JEFFREY A. COHEN, JJ.

2015-06296
(Index No. 27797/09)

[*1]Laura Gomez, appellant,

v

New York City Transit Authority, et al., respondents.

Cellino & Barnes, P.C., New York, NY (Gregory V. Pajak, Christian R. Oliver, and John Lavelle of counsel), for appellant.

Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York, NY (Vanessa M. Corchia of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated March 31, 2015, as granted the defendants' cross 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 insofar as appealed from, on the law, with costs, and the cross motion is denied.

On October 21, 2008, the plaintiff, while operating a motor vehicle on 108th Street near the entrance to Horace Harding Expressway in Queens, was involved in a collision with a vehicle operated by the defendant Adam Rhodie in his capacity as an employee of the defendant All Transit, LLC, and owned by the defendant New York City Transit Authority (hereinafter collectively the defendants). One year later, the plaintiff commenced this action against the defendants alleging, inter alia, that as a result of this accident, she sustained injuries to the cervical and lumbar regions of her spine. After discovery, the plaintiff moved for summary judgment on the issue of liability and the defendants cross-moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury. In the order appealed from, the Supreme Court, granted the plaintiff's motion for summary judgment on the issue of liability and granted the defendants' cross motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury. The plaintiff appeals from so much of the order as granted the defendants' cross motion.

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; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants submitted competent medical evidence establishing, prima facie, that the alleged injury to the lumbar region of the plaintiff's spine was not caused by the accident at issue (see generally Jilani v Palmer, 83 AD3d 786, 787).

In opposition to the defendants' cross motion for summary judgment, however, the plaintiff submitted evidence raising a triable issue of fact as to whether the alleged injury to the lumbar region of her spine was caused by the accident at issue (see Perl v Meher, 18 NY3d 208, 218-219; Sforza v Big Guy Leasing Corp., 51 AD3d 659, 661).

Accordingly, the Supreme Court should have denied the defendants' cross motion for summary judgment dismissing the complaint.

DILLON, J.P., AUSTIN, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court