| Rampino v Shaffren |
| 2011 NY Slip Op 09300 [90 AD3d 884] |
| December 20, 2011 |
| Appellate Division, Second Department |
| Robert S. Rampino et al., Respondents, v Steven J.Shaffren et al., Appellants. |
—[*1] Richard T. Lau, Jericho, N.Y. (Gene W. Wiggins of counsel), for appellants Bernard S.Davis and Pentagon Plumbing and Mechanical Corp. Baron Associates P.C., Brooklyn, N.Y. (Daniel Davidovic of counsel), forrespondents.
In an action to recover damages for personal injuries, the defendants Bernard S. Davis andPentagon Plumbing and Mechanical Corp. appeal, and the defendant Steven J. Shaffrenseparately appeals, from an order of the Supreme Court, Kings County (Schmidt, J.), datedMarch 22, 2011, which denied their motion for summary judgment dismissing the complaintinsofar as asserted by the plaintiff Robert S. Rampino on the ground that plaintiff did not sustaina serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs payable by the appellants appealing separatelyand filing separate briefs.
The defendants met their prima facie burden of showing that the plaintiff Robert S. Rampinodid not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a resultof the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002];Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Rampino alleged, inter alia, that as aresult of the subject accident, he sustained injuries to the cervical and lumbosacral regions of hisspine. On the motion for summary judgment, the defendants submitted evidence establishing,among other things, prima facie, that the alleged injuries to the cervical and lumbosacral regionsof Rampino's spine did not constitute serious injuries within the meaning of Insurance Law§ 5102 (d) (see Rodriguez vHuerfano, 46 AD3d 794, 795 [2007]). Although the defendants also attempted toestablish, prima facie, that those alleged injuries were, in any event, not caused by the accident,they failed to do so, as their evidentiary submissions actually demonstrated the existence of atriable issue of fact as to causation (seeLuby v Tsybulevskiy, 89 AD3d 689 [2011]; Kelly v Ghee, 87 AD3d 1054, 1055 [2011]; see also Hightower v Ghio, 82 AD3d934, 935 [2011]).
In opposition, Rampino submitted evidence raising a triable issue of fact as to whether thealleged injuries to the cervical and lumbosacral regions of his spine constituted serious injuriesunder the permanent consequential limitation of use and/or significant limitation of usecategories of Insurance Law § 5102 (d) (see Perl v Meher, 18 NY3d 208,217-218[*2] [2011]). Accordingly, the Supreme Court properlydenied the defendants' motion for summary judgment dismissing the complaint insofar asasserted by Rampino. Mastro, A.P.J., Balkin, Chambers and Sgroi, JJ., concur.
Motion by the respondents on appeals from an order of the Supreme Court, Kings County,dated March 22, 2011, to dismiss the appeal of the defendant Steven J. Shaffren. By decision andorder on motion of this Court dated July 8, 2011, the motion was held in abeyance and referred tothe panel of Justices hearing the appeals for determination upon the argument or submissionthereof.
Upon the papers filed in support of the motion, upon the papers filed in opposition thereto,and upon the submission of the appeals, it is
Ordered that the motion is denied. Mastro, A.P.J., Balkin, Chambers and Sgroi, JJ., concur.