Midiri v. Mcqueen

• Decision Date: 21 June 2011
• Citation: 925 N.Y.S.2d 861,85 A.D.3d 985,2011 N.Y. Slip Op. 05465
• Parties: Victoria MIDIRI, appellant,v.Jasheree McQuEEN, respondent.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 985
925 N.Y.S.2d 861
2011 N.Y. Slip Op. 05465

Victoria MIDIRI, appellant,
v.
Jasheree McQuEEN, respondent.

Supreme Court, Appellate Division, Second Department, New York.

June 21, 2011.

Greenberg & Kelly, P.C., Ronkonkoma, N.Y. (John Aviles of counsel), for appellant.Richard T. Lau, Jericho, N.Y. (Linda Meisler of counsel), for respondent.

[85 A.D.3d 985] In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Mayer, J.), dated April 13, 2010, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendant's

[925 N.Y.S.2d 862]

motion for summary judgment dismissing the complaint is denied.

The defendant met her prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident [85 A.D.3d 986] ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The plaintiff alleged that as a result of the subject accident, she sustained, inter alia, certain injuries to the cervical region of her spine. The defendant provided evidence establishing, inter alia, that the alleged injuries to the cervical region of the plaintiff's spine did not constitute a serious injury within the meaning of Insurance Law § 5102(d) ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d at 352, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d at 955–956, 582 N.Y.S.2d 990, 591 N.E.2d 1176; Rodriguez v. Huerfano, 46 A.D.3d 794, 795, 849 N.Y.S.2d 275).

However, in opposition, the plaintiff provided evidence raising a triable issue of fact as to whether the injuries to the cervical region of her spine constituted a serious injury under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102(d) ( see Dixon v. Fuller, 79 A.D.3d 1094, 1094–1095, 913 N.Y.S.2d 776). Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.

DILLON, J.P., COVELLO, BALKIN, LOTT and ROMAN, JJ., concur.