DANIEL D. ANGIOLILLO
William Pager, Brooklyn, N.Y., for appellant. Abamont & Associates, Garden City, N.Y. (Jonathan Hirschhorn of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., ANITA R. FLORIO, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Strauss, J.), entered January 31, 2011, which, in effect, granted that branch of the defendant's motion which was 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 that branch of the defendant's motion which was 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 ( 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, inter alia, that as a result of the subject accident, she sustained certain injuries to the cervical and lumbar regions of her spine. The defendant submitted evidence establishing, prima facie, that the alleged injuries to those regions of the plaintiff's spine did not constitute serious injuries within the meaning of Insurance Law § 5102(d) ( see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180). Although the defendant further argued that those alleged injuries were not caused by the subject accident ( see Pommells v. Perez, 4 N.Y.3d 566, 569, 797 N.Y.S.2d 380, 830 N.E.2d 278), her submissions revealed the existence of a triable issue of fact as to causation ( see Luby v. Tsybulevskiy, 89 A.D.3d 689, 931 N.Y.S.2d 902; Kelly v. Ghee, 87 A.D.3d 1054, 929 N.Y.S.2d 763; see also Hightower v. Ghio, 82 A.D.3d 934, 935, 919 N.Y.S.2d 43).
In opposition, the plaintiff submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the cervical and lumbar regions of her spine constituted serious injuries under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) ( see Perl v. Meher, 18 N.Y.3d 208, 217–220, 936 N.Y.S.2d 655, 960 N.E.2d 424). Accordingly, the Supreme Court should have denied that branch of the defendant's motion which was for summary judgment dismissing the complaint.