Delvav.Diocese of Brooklyn

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial DepartmentMar 13, 2019
93 N.Y.S.3d 861 (N.Y. App. Div. 2019)
93 N.Y.S.3d 861170 A.D.3d 8022019 N.Y. Slip Op. 1740

2017–12552 Index No. 510467/15

03-13-2019

Richard DELVA, Respondent, v. DIOCESE OF BROOKLYN, et al., Appellants.

Picciano & Scahill, P.C., Bethpage, N.Y. (Kerri A. Wehrheim of counsel), for appellants. Law Offices of Regis A. Gallet, LLC, Forest Hills, NY, for respondent.


Picciano & Scahill, P.C., Bethpage, N.Y. (Kerri A. Wehrheim of counsel), for appellants.

Law Offices of Regis A. Gallet, LLC, Forest Hills, NY, for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated October 5, 2017. The order denied the defendants' 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 affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident. The defendants moved 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 accident. The Supreme Court denied the motion. The defendants appeal.

On appeal, the plaintiff does not argue that the defendants failed to meet their prima facie burden on their motion for summary judgment of showing that the plaintiff did not sustain a serious injury under the permanent consequential limitation of use and significant limitation of use categories 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 ; see also DiLernia v. Khan , 62 A.D.3d 644, 645, 878 N.Y.S.2d 405 ), but asserts that he raised a triable issue of fact in opposition. Contrary to the defendants' contention, the plaintiff raised a triable issue of fact as to whether he sustained serious injuries to his left shoulder and 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), and as to whether these alleged injuries were caused by the accident (see Perl v. Meher , 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424 ; Jilani v. Palmer , 83 A.D.3d 786, 787, 920 N.Y.S.2d 424 ).

Accordingly, we agree with the Supreme Court's determination to deny the defendants' motion for summary judgment dismissing the complaint.

BALKIN, J.P., CHAMBERS, MILLER and IANNACCI, JJ., concur.