Mulhern v. Gregory, 2016–03045

• Decision Date: 09 May 2018
• Docket Number: 2016–03045,Index No. 602048/13
• Parties: Edward MULHERN, appellant, v. Michael GREGORY, et al., respondents.
• Court: New York Supreme Court — Appellate Division

161 A.D.3d 881

75 N.Y.S.3d 592

Edward MULHERN, appellant,

v.Michael GREGORY, et al., respondents.

2016–03045

Index No. 602048/13

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

Submitted–December 18, 2017

Decided May 9, 2018

Kaston & Aberle, LLP, Mineola, N.Y. (Richard M. Aberle of counsel), for appellant.

Martyn, Toher, Martyn & Rossi, Mineola, N.Y. (Giovanna Condello and David Smith of counsel), for respondents.

CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (George R. Peck, J.), entered February 16, 2016. The order granted the defendants' cross motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, and denied, as academic, the plaintiff's unopposed motion for summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, the defendants' cross motion for summary judgment dismissing the complaint is denied, and the plaintiff's unopposed motion for summary judgment on the issue of liability is granted.

On August 19, 2010, the plaintiff was a passenger in a motor vehicle that was struck in the rear, while stopped, by a vehicle owned by the defendant Michael Gregory and operated by the defendant Sean Gregory. The plaintiff commenced this action against the defendants to recover damages for personal injuries he allegedly sustained as a result of the subject accident. Subsequently, the plaintiff moved for summary judgment on the issue of liability. The defendants cross-moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. The Supreme Court granted the defendants' cross motion, and denied the plaintiff's unopposed motion as academic. The plaintiff appeals.

The defendants met their 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 (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 defendants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and thoracic regions of the plaintiff's spine and to his left shoulder did not constitute a serious injury under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v. Yshua , 59 A.D.3d 614, 874 N.Y.S.2d 180 ; see also Lively v. Fernandez , 85 A.D.3d 981, 981–982, 925 N.Y.S.2d 650 ). The defendants also submitted evidence establishing that the plaintiff did not sustain a serious injury under the 90/180–day category of Insurance Law § 5102(d) (see Kreimerman v. Stunis , 74 A.D.3d 753, 902 N.Y.S.2d 180 ).

In opposition, however, the plaintiff submitted evidence raising a triable issue of fact as to whether he sustained a serious injury to the cervical and thoracic regions of his spine as a result of the subject accident (see Perl v. Meher , 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424 ). Thus, the Supreme Court should have denied the defendants' cross motion for summary judgment dismissing the complaint.

In light of our determination, the plaintiff's unopposed motion for summary judgment on the issue of liability is no longer academic. We address the...