Seong Deok Choe v. Sumba

• Citation: 170 A.D.3d 770,93 N.Y.S.3d 606 (Mem)
• Decision Date: 06 March 2019
• Docket Number: 2017–00732,Index No. 13404/13
• Parties: SEONG DEOK CHOE, Appellant, v. Jose SUMBA, et al., Respondents.
• Court: New York Supreme Court Appellate Division

170 A.D.3d 770

93 N.Y.S.3d 606 (Mem)

SEONG DEOK CHOE, Appellant,

v.Jose SUMBA, et al., Respondents.

2017–00732

Index No. 13404/13

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

Argued - November 5, 2018

March 6, 2019

Andrew Park, P.C., New York, N.Y. (Steve J. Park of counsel), for appellant.

Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (Paul A. Barrett and Gil Auslander of counsel), for respondents.

ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

On July 4, 2013, in Queens, a vehicle operated by the plaintiff collided with a vehicle operated by the defendant Ramin P. Mandavi and owned by the defendant Jose Sumba (hereinafter together the defendants). Shortly thereafter, the plaintiff commenced this action, alleging in his bill of particulars that he sustained serious injuries to his right knee and lumbar spine. The defendants 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 accident. The Supreme Court granted the motion, and the plaintiff appeals.

We disagree with the Supreme Court's determination granting the defendants' motion for summary judgment dismissing the complaint. 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 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 ). In support of their motion, the defendants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the plaintiff's right knee and the lumbar region of his spine did not constitute a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Kholdarov v. Hyman, 165 A.D.3d 1087, 85 N.Y.S.3d 153 ; Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180 ). The defendants also submitted evidence establishing, prima facie, that the plaintiff did not sustain a serious injury under the 90/180–day category of Insurance Law § 5102(d) (see D.R. v. Kazachok, 155 A.D.3d 657, 63 N.Y.S.3d 95 ). In...