Rivera v. Gabrielli Truck Leasing, LLC

• Decision Date: 25 October 2017
• Docket Number: 2016-00948, 2016-02889, Index No. 12307/13.
• Citation: Rivera v. Gabrielli Truck Leasing, LLC, 62 N.Y.S.3d 520, 154 A.D.3d 984 (N.Y. App. Div. 2017)
• Parties: Ivis RIVERA, respondent, v. GABRIELLI TRUCK LEASING, LLC, defendant, Aramex New York, Ltd., et al., appellants.
• Court: New York Supreme Court — Appellate Division

154 A.D.3d 984

62 N.Y.S.3d 520

Ivis RIVERA, respondent,

v.GABRIELLI TRUCK LEASING, LLC, defendant, Aramex New York, Ltd., et al., appellants.

2016-00948, 2016-02889, Index No. 12307/13.

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

Oct. 25, 2017.

Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, NY (Glen Feinberg and Melissa Murphy–Petros of counsel), for appellants.

Gorayeb & Associates, P.C., New York, NY (John M. Shaw of counsel), for respondent.

WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

In an action to recover damages for personal injuries, the defendants Aramex New York, Ltd., and Aleksey Kogan appeal, (1) as limited by their brief, from so much of an order of the Supreme Court, Queens County (Sampson, J.), entered December 7, 2015, as denied that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them 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 (2) from an order of the same court dated January 25, 2016, which denied the defendants' motion to strike portions of the affirmation and narrative report of the plaintiff's treating orthopedic surgeon.

ORDERED that the order entered December 7, 2015, is affirmed insofar as appealed from; and it is further,

ORDERED that the order dated January 25, 2016, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The Supreme Court properly denied that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants Aramex New York, Ltd., and Aleksey Kogan (hereinafter together the appellants) 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 (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' submissions failed to eliminate all triable issues of fact as to whether the plaintiff sustained a serious injury under the 90/180–day category of Insurance Law § 5102(d), and as to whether she sustained serious injuries to her jaw and to the cervical and lumbar regions of her spine under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Fils–Aime v. Colombo, 152 A.D.3d 493, 494, 58 N.Y.S.3d 131 ; Sook Houng v. Beers, 151 A.D.3d 995, 996, 54 N.Y.S.3d 449 ; Mangione v. Bua, 148 A.D.3d 799, 48 N.Y.S.3d 518 ). Since the defendants did not sustain their prima facie burden, it is unnecessary to determine whether the...