| Hightower v Ghio |
| 2011 NY Slip Op 01974 [82 AD3d 934] |
| March 15, 2011 |
| Appellate Division, Second Department |
| Wayne Hightower, Appellant, v Christopher R. Ghio,Respondent. |
—[*1]
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Orange County (Ritter, J.), dated June 1, 2010, which granted the defendant'smotion for summary judgment dismissing the complaint on the ground that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
The defendant established, prima facie, that the plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A CarSys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; Acosta v Rubin, 2 AD3d 657, 659[2003]). In opposition, the plaintiff raised triable issues of fact as to whether he sustained seriousinjuries to the cervical and/or thoracolumbar regions of his spine under the permanentconsequential limitation of use and/or the significant limitation of use categories of InsuranceLaw § 5102 (d) (see Compass vGAE Transp., Inc., 79 AD3d 1091 [2010]; Boskey v GTWY, Inc., 78 AD3d 1095 [2010]).
Although the defendant supported his initial moving papers with evidence that the plaintiffwas involved in an automobile accident approximately five years prior to the subject accident, hefailed to make a prima facie showing that the plaintiff's injuries were caused by the prioraccident. Therefore, the burden did not shift to the plaintiff to raise a triable issue of fact as towhether his injuries were caused by the subject accident, rather than by the prior accident (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Stukas vStreiter,83 AD3d 18 [2d Dept 2011]).
Accordingly, the Supreme Court should have denied the defendant's motion for summaryjudgment dismissing the complaint (see generally Zuckerman v City of New York, 49NY2d 557, 562 [1980]). Skelos, J.P., Covello, Eng, Chambers and Sgroi, JJ., concur.