Opinion
2015-05483, Index No. 4961/13.
05-11-2016
Charles HOLIDAY, et al., appellants, v. UNITED STEEL PRODUCTS, INC., et al., respondents.
Krentsel & Guzman, LLP, New York, NY (Steven E. Krentsel and Julie T. Mark of counsel), for appellants. Ahmuty, Demers & McManus, New York, NY (Nicholas M. Cardascia and Glenn A. Kaminska of counsel), for respondents.
Krentsel & Guzman, LLP, New York, NY (Steven E. Krentsel and Julie T. Mark of counsel), for appellants.
Ahmuty, Demers & McManus, New York, NY (Nicholas M. Cardascia and Glenn A. Kaminska of counsel), for respondents.
LEONARD B. AUSTIN, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, and COLLEEN D. DUFFY, JJ.
Opinion In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Velasquez, J.), dated March 16, 2015, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that neither plaintiff sustained 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 defendants' motion for summary judgment dismissing the complaint is denied.
The defendants failed to meet their prima facie burden of establishing that neither plaintiff sustained 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 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 ). The defendants failed to submit competent medical evidence establishing, prima facie, that the plaintiff Charles Holiday did not sustain a serious injury to the cervical region of his spine and his shoulders under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Straussberg v. Marghub, 108 A.D.3d 694, 968 N.Y.S.2d 898 ; Snyder v. Rivera, 98 A.D.3d 1104, 1105, 951 N.Y.S.2d 233 ; Kelly v. Ghee, 87 A.D.3d 1054, 1055, 929 N.Y.S.2d 763 ). In addition, the defendants failed to submit competent medical evidence establishing, prima facie, that the plaintiff Mara Holiday did not sustain a serious injury to the cervical and lumbar regions of her spine under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Straussberg v. Marghub, 108 A.D.3d at 694, 968 N.Y.S.2d 898 ; Snyder v. Rivera, 98 A.D.3d at 1105, 951 N.Y.S.2d 233 ; Kelly v. Ghee, 87 A.D.3d at 1055, 929 N.Y.S.2d 763 ).
Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see Snyder v. Rivera, 98 A.D.3d at 1105, 951 N.Y.S.2d 233 ).
Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.