Ricks v. Fisher

Ricks v Fisher (2016 NY Slip Op 04192)

Ricks v Fisher

2016 NY Slip Op 04192

Decided on June 1, 2016

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 June 1, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
THOMAS A. DICKERSON
FRANCESCA E. CONNOLLY, JJ.

2015-06695
(Index No. 3859/13)

[*1]Tysha Ricks, appellant,

v

Joseph Fisher, et al., defendants third-party plaintiffs-respondents; Victor L. Washington, third-party defendant-respondent.

Sim & Record, LLP, Bayside, NY (Sang J. Sim of counsel), for appellant.

Russo, Apoznanski & Tambasco, Melville, NY (Yamile Al-Sullami and Gerard Ferrara of counsel), for defendants third-party plaintiffs-respondents.

Galvano & Xanthakis, P.C., New York, NY (Matthew D. Kelly of counsel), for third-party defendant-respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Silber, J.), dated June 2, 2015, which granted the motion of the defendants third-party plaintiffs, and the separate motion of the third-party defendant, 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 one bill of costs payable by the defendants third-party plaintiffs-respondents and the third-party defendant-respondent appearing separately and filing separate briefs, and the motions for summary judgment dismissing the complaint are denied.

In support of their respective motions for summary judgment dismissing the complaint, the defendants third-party plaintiffs and the third-party defendant met their prima facie burdens 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 plaintiff's alleged injuries 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), and that, in any event, such injuries were not caused by the subject accident (see Jilani v Palmer, 83 AD3d 786, 787).

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), and as to whether the alleged injuries were caused by the accident (see Perl v Meher, 18 [*2]NY3d 208, 218-219; Jilani v Palmer, 83 AD3d at 787). Accordingly, the Supreme Court should have denied the motion of the defendants third-party plaintiffs, and the separate motion of the third-party defendant, for summary judgment dismissing the complaint.

MASTRO, J.P., CHAMBERS, DICKERSON and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court