| Chery v Castello |
| 2011 NY Slip Op 06115 [87 AD3d 520] |
| August 2, 2011 |
| Appellate Division, Second Department |
| Stacey Chery, Appellant, v Kevaughn Castello et al.,Defendants, and Ronnie Thornton, Respondent. |
—[*1] Mendolia & Stenz, Westbury, N.Y. (Tracy Morgan of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Queens County (Grays, J.), dated May 20,2010, as denied that branch of her motion which was to vacate so much of a prior order of thesame court dated October 29, 2009, as granted the unopposed motion of the defendant RonnieThornton for summary judgment dismissing the complaint insofar as asserted against her on theground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) and, thereupon, to deny that motion.
Ordered that the order is reversed insofar as appealed from, on the law and in the exercise ofdiscretion, with costs, that branch of the plaintiff's motion which was to vacate so much of theorder dated October 29, 2009, as granted the motion of the defendant Ronnie Thornton forsummary judgment dismissing the complaint insofar as asserted against her and, thereupon, todeny that motion, is granted, so much of that order as granted that motion is vacated, and thatmotion is denied.
The plaintiff demonstrated a reasonable excuse for her failure to oppose the motion of thedefendant Ronnie Thornton for summary judgment dismissing the complaint insofar as assertedagainst her (see CPLR 5015 [a] [1]; Political Mktg., Int'l, Inc. v Jaliman, 67 AD3d 661 [2009]; cf.Felder v New York City Tr. Auth., 238 AD2d 543 [1997]; Krystofic v Rapisardi, 112AD2d 196, 196-197 [1985]). The plaintiff also "established the existence of a triable issue of factconstituting a meritorious opposition to" Thornton's motion (Political Mktg., Int'l., Inc. vJaliman, 67 AD3d at 662; see CPLR 5015 [a] [1]). The plaintiff provided competentmedical evidence establishing that the alleged injuries to the lumbar region of her spineconstituted a serious injury under the permanent consequential limitation of use and/orsignificant limitation of use categories of Insurance Law § 5102 (d) (see Dixon v Fuller, 79 AD3d1094, 1094-1095 [2010]). She also provided a reasonable explanation for a cessation ofmedical treatment (see Pommells vPerez, 4 NY3d 566, 574 [2005]; Abdelaziz v Fazel, 78 AD3d 1086 [2010]).[*2]
Accordingly, the Supreme Court should have granted thatbranch of the plaintiff's motion which was to vacate so much of the order dated October 29,2009, as granted Thornton's motion for summary judgment, should have vacated so much of thatorder as granted Thornton's motion for summary judgment, and thereupon should have deniedThornton's motion (see Political Mktg., Int'l., Inc. v Jaliman, 67 AD3d at 661). Rivera,J.P., Angiolillo, Eng, Chambers and Sgroi, JJ., concur.