DEFENSE SUMMARY JUDGMENT DENIED; GENUINE ISSUES OF MATERIAL FACT EXIST AS TO WHETHER PLAINTIFF SUFFERED "SERIOUS INJURY" WITH NECK AND SHOULDER INJURY

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Antonio Fernandez v. P.S. Vera-Carrion

Date: March 13, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens)

**************************************************

RELATED POSTS:

PLAINTIFF RAISED ISSUE OF FACT AS TO WHETHER INJURIES TO CERVICAL AND THORACOLUMBAR SPINE AND HER SHOULDERS, CONSTITUTED SERIOUS INJURIES (Posted by Brooklyn accident lawyer Gary E. Rosenberg on May 3, 2012)

DEFENSE "SERIOUS INJURY" THRESHOLD SUMMARY JUDGMENT MOTION DENIED; ACCIDENT VICTIM'S DOCTOR'S AFFIDAVIT RAISE ISSUE OF FACT AS TO BACK AND SHOULDER INJURIES (Posted by Brooklyn accident lawyer Gary E. Rosenberg on Dec 11, 2011)

DEFENSE LOSES NO-FAULT "SERIOUS INJURY" SUMMARY JUDGMENT MOTION; ITS DOCTOR FOUND CAR ACCIDENT VICTIM HAD LIMITED MOTION OF NECK, BACK & SHOULDER (Posted by Brooklyn accident lawyer Gary E. Rosenberg on Oct 27, 2011)

**************************************************

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Brathwaite-Nelson, J.), entered May 11, 2011, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Antonio Fernandez did not sustain a serious injury within the meaning of Insurance Law Sec. 5102(d).

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 met their prima facie burden of showing that the plaintiff Antonio Fernandez (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law Sec. 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 plaintiffs alleged, inter alia, that as a result of the subject accident, the injured plaintiff sustained certain injuries to the cervical region of his spine and to his right shoulder. The defendants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical region of the injured plaintiff's spine and his right shoulder did not constitute serious injuries within the meaning of Insurance Law Sec. 5102(d) (see Rodriguez v. Huerfano, 46 A.D.3d 794, 795, 849 N.Y.S.2d 275), and, in any event, were not caused by the subject accident (see Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424).

In opposition, the plaintiffs submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the cervical region of the injured plaintiff's spine and his right shoulder constituted serious injuries under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law Sec. 5102 (d) (see Perl v. Meher, 18 N.Y.3d 208, 215-218, 936 N.Y.S.2d 655, 960 N.E.2d 424). Furthermore, the plaintiffs also submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the cervical region of the injured plaintiff's spine and to his right shoulder were caused by the subject accident (id. at 218-219, 936 N.Y.S.2d 655, 960 N.E.2d 424; Jaramillo v. Lobo, 32 A.D.3d 417, 418, 820 N.Y.S.2d 608), and provided a reasonable explanation for the cessation of the injured plaintiff's medical treatment (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278). Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.

Categories