Tsidulkov.K & L Int'l Trading, Inc.

Supreme Court, Appellate Division, Second Department, New York.Mar 1, 2017
48 N.Y.S.3d 493 (N.Y. App. Div. 2017)
48 N.Y.S.3d 493148 A.D.3d 755

03-01-2017

Dmitry TSIDULKO, appellant, v. K & L INT'L TRADING, INC., et al., respondents.

William Pager, Brooklyn, NY, for appellant. Cheven, Keely & Hatzis, New York, NY (William B. Stock of counsel), for respondents.


William Pager, Brooklyn, NY, for appellant.

Cheven, Keely & Hatzis, New York, NY (William B. Stock of counsel), for respondents.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and JEFFREY A. COHEN, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Rothenberg, J.), dated October 8, 2015, which granted 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 reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

In support of their motion for summary judgment dismissing the complaint, 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 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 submitted competent medical evidence establishing, prima facie, that none of the alleged injuries to the cervical and lumbar regions of the plaintiff's spine constituted a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180 ), and that, in any event, the alleged injuries were not caused by the subject accident (see generally Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424 ).

In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained serious injuries to 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 the 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 at 787, 920 N.Y.S.2d 424 ). Accordingly, the Supreme Court should have denied the defendants' motion.