| Marte v New York City Tr. Auth. |
| 2009 NY Slip Op 00654 [59 AD3d 398] |
| February 3, 2009 |
| Appellate Division, Second Department |
| Carmen Marte, Appellant, v New York City TransitAuthority et al., Respondents. |
—[*1] Picciano & Scahill, P.C., Westbury, N.Y. (Gilbert J. Hardy and Francis J. Scahill ofcounsel), for respondent A. Magarin-Adames.
In an action to recover damages for personal injuries, the plaintiff appeals from so much ofan order of the Supreme Court, Queens County (Lane, J.), entered July 2, 2007, as granted thosebranches of the respective motions of the defendant A. Magarin-Adames and the defendantsNew York City Transit Authority and Jose Contreras which were for summary judgmentdismissing so much of the complaint insofar as asserted against each of them as alleged injuriesto her lumbar spine, cervical spine, and right knee on the ground that she did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) to those parts of her body.
Ordered that the order is modified, on the law, by deleting the provision thereof grantingthose branches of the respective motions of the defendant A. Magarin-Adames and thedefendants New York City Transit Authority and Jose Contreras, which were for summaryjudgment dismissing so much of the complaint insofar as asserted against them as alleged thatthe plaintiff sustained a permanent consequential limitation of use of a body organ or member ora significant limitation of use of a body function or system within the meaning of Insurance Law§ 5102 (d) as to the alleged injuries to her cervical spine and right knee, and substitutingtherefor a provision denying those branches of the motions; as so modified, the order is affirmedinsofar as appealed from, with one bill of costs payable to the plaintiff.
Since the Supreme Court found that there were triable issues of fact regarding whether theplaintiff sustained a serious injury to her right ankle, she is entitled to seek recovery for allinjuries allegedly incurred as a result of the accident (see Shtesl v Kokoros, 56 AD3d 544 [2008]; Rizzo vDeSimone, [*2]6 AD3d 600 [2004]; Prieston v Massaro,107 AD2d 742,743 [1985]). Accordingly, the Supreme Court erred in granting summaryjudgment dismissing so much of the complaint as alleged injuries to the plaintiff's cervical spineand right knee.
As the plaintiff did not allege in her bill of particulars that she injured her lumbar spine, anyclaims concerning her lumbar spine were not considered by this Court, and should not have beenconsidered by the Supreme Court (seeFelix v Wildred, 54 AD3d 891 [2008]; Sharma v Diaz, 48 AD3d 442, 443 [2008]; Ifrach v Neiman,306 AD2d 380, 381 [2003]). Skelos, J.P., Dillon, Carni and Leventhal, JJ., concur.