| Cruz v Advanced Concrete Leasing Corp. |
| 2012 NY Slip Op 08274 [101 AD3d 666] |
| December 5, 2012 |
| Appellate Division, Second Department |
| Carmen Cruz, Plaintiff, and Maria Rodriguez,Respondent, v Advanced Concrete Leasing Corp. et al.,Appellants. |
—[*1] Pontisakos & Rossi, P.C., Garden City, N.Y. (Elizabeth Mark Meyerson of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Queens County (Hart, J.), dated November 21, 2011, which denied theirmotion for summary judgment dismissing the complaint insofar as asserted by the plaintiff MariaRodriguez on the ground that she did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d) as a result of the subject accident.
Ordered that the order is affirmed, with costs.
While we affirm the order appealed from, we do so on a ground different from that reliedupon by the Supreme Court. The defendants failed to meet their prima facie burden of showingthat the plaintiff Maria Rodriguez did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent ACar Sys., 98 NY2d 345, 350 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]).Rodriguez alleged that, as a result of the subject accident, which occurred on June 20, 2008, shesustained certain injuries to her knees, her left shoulder, the lumbar region of her spine, and herleft thumb. On their motion for summary judgment, the defendants argued that those allegedinjuries did not constitute serious injuries within the meaning of Insurance Law § 5102 (d),and that Rodriguez's injuries were not caused by the subject accident, since Rodriguez had beenpreviously injured as a result of a trip-and-fall accident which occurred in October 2005.However, the defendants' submissions showed the existence of significant limitations in therange of motion of Rodriguez's left shoulder and the lumbar region of her spine, in addition torevealing the existence of a triable issue of fact as to the cause of her alleged injuries (see Kearney v Garrett, 92 AD3d725, 726 [2012]; Howell vSkody, 91 AD3d 824, 824 [2012]; Scott v Gresio, 90 AD3d 736, 736 [2011]; Luby v Tsybulevskiy, 89 AD3d689 [2011]; Kelly v Ghee, 87AD3d 1054, 1054 [2011]).
Moreover, the defendants failed to adequately address Rodriguez's claim that she sustained amedically determined injury or impairment of a nonpermanent nature which prevented her fromperforming substantially all of the material acts which constituted her usual and customary dailyactivities for not less than 90 days during the 180 days immediately following the subject [*2]accident (see Aujour v Singh, 90 AD3d 686, 686 [2011]; Bangar v Man Sing Wong, 89 AD3d1048, 1049 [2011]).
Since the defendants failed to meet their prima facie burden, it is unnecessary to considerwhether the papers submitted by Rodriguez in opposition were sufficient to raise a triable issueof fact (see Kearney v Garrett, 92 AD3d at 726; Scott v Gresio, 90 AD3d at 736).
Accordingly, the defendants' motion for summary judgment dismissing the complaint insofaras asserted by Rodriguez was correctly denied. Angiolillo, J.P., Balkin, Austin and Miller, JJ.,concur.