| Howell v Skody |
| 2012 NY Slip Op 00490 [91 AD3d 824] |
| Jnury 24, 2012 |
| Appellate Division, Second Department |
| Camille Howell, Appellant, v Claire M. Skody,Respondent. |
—[*1] Abamont & Associates, Garden City, N.Y. (Jonathan Hirschhorn of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Strauss, J.), entered January 31, 2011, which, in effect,granted that branch of the defendant's motion which was for summary judgment dismissing thecomplaint on the ground that she did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and that branch of the defendant'smotion which was for summary judgment dismissing the complaint is denied.
The defendant met her prima facie burden of showing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). The plaintiff alleged, inter alia, that as a result of thesubject accident, she sustained certain injuries to the cervical and lumbar regions of her spine.The defendant submitted evidence establishing, prima facie, that the alleged injuries to thoseregions of the plaintiff's spine did not constitute serious injuries within the meaning of InsuranceLaw § 5102 (d) (see Staff vYshua, 59 AD3d 614 [2009]). Although the defendant further argued that those allegedinjuries were not caused by the subject accident (see Pommells v Perez, 4 NY3d 566, 569 [2005]), her submissionsrevealed the existence of a triable issue of fact as to causation (see Luby v Tsybulevskiy, 89 AD3d689 [2011]; Kelly v Ghee, 87AD3d 1054 [2011]; see alsoHightower v Ghio, 82 AD3d 934, 935 [2011]).
In opposition, the plaintiff submitted competent medical evidence raising a triable issue offact as to whether the alleged injuries to the cervical and lumbar regions of her spine constitutedserious injuries under the permanent consequential limitation of use or significant limitation ofuse categories of Insurance Law § 5102 (d) (see Perl v Meher, 18 NY3d 208, 218-219 [2011]). Accordingly, theSupreme Court should have denied that branch of the defendant's motion which was for summaryjudgment dismissing the complaint. Angiolillo, J.P., Florio, Leventhal and Lott, JJ., concur.