Morgan v Guevara

[*1] Morgan v Guevara 2020 NY Slip Op 50408(U) Decided on April 9, 2020 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 9, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : JERRY GARGUILO, J.P., THOMAS A. ADAMS, ELIZABETH H. EMERSON, JJ
2018-2516 S C

Natoya Morgan, Appellant,

against

Misael Rudis Guevara and S. Portillo-Fuentes, Respondents.

Cannon & Acosta, LLP (June Redeker of counsel), for appellant. Bello & Larkin (Kelly Green of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated October 4, 2018. The order granted defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendants' motion for summary judgment is denied.

Plaintiff commenced this action in the Supreme Court, Suffolk County, to recover for personal injuries allegedly sustained in a motor vehicle accident. The action was subsequently transferred to the District Court pursuant to CPR 325 (d). Plaintiff appeals from an order of the District Court which granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff had not sustained a serious injury.

Defendants failed to meet their prima facie burden of demonstrating that plaintiff did not sustain a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]), since their expert orthopedic surgeon found [*2]significant limitations in the range of motion of plaintiff's thoracic spine, lumbar spine, right shoulder and left shoulder (see Mercado v Mendoza, 133 AD3d 833, 834 [2015]; Miller v Bratsilova, 118 AD3d 761 [2014]). As a result, defendants' showing under any other categories of Insurance Law § 5102 (d) are not considered (see Cesar v Felix, 181 AD2d 852, 854 [2d Dept 1992]). Since defendants did not sustain their prima facie burden in these categories of serious injury, it is unnecessary to determine whether the papers submitted in opposition were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Assemi v Levan, 120 AD3d 1365 [2014]).

Accordingly, the order is reversed and defendants' motion for summary judgment is denied.

GARGUILO, J.P., ADAMS and EMERSON, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk
Decision Date: April 9, 2020