Insurance - No-Fault Automobile Insurance - Serious Injury - Cervical Region of Spine and Right Shoulder - Causation

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Rockland County (Thomas P. Zugibe, J.), dated April 15, 2024. The order granted the defendants' 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.

Ordered that the order is reversed, on the law, with costs, and the defendants' 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 is denied.

The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident. 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. In an order dated April 15, 2024, the Supreme Court granted the motion. The plaintiff appeals.

The defendants failed to meet 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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendants failed to submit competent medical evidence establishing, prima facie, that the plaintiff did not sustain a serious injury to the cervical region of his spine and to his right shoulder under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102 (d) (see Zennia v Ramsey, 208 AD3d 735, 735 [2022]; Melika v Caraballo, 187 AD3d 1173, 1173 [2020]; Staubitz v Yaser, 41 AD3d 698, 699 [2007]). The defendants' submissions also failed to eliminate triable issues of fact regarding the plaintiff's claims, as set forth in the bill of particulars, that he sustained a serious injury under the 90/180-day category of Insurance Law § 5102 (d) (see Che Hong Kim v Kossoff, 90 AD3d 969 [2011]; Rouach v Betts, 71 AD3d 977 [2010]; see also Richards v Tyson, 64 AD3d 760, 761 [2009]). Further, the defendants failed to establish, prima facie, that the alleged injuries to [*2]the cervical region of the plaintiff's spine and to his right shoulder were not caused by the accident (see Zennia v Ramsey, 208 AD3d at 735; Luigi v Avis Cab Co., Inc., 96 AD3d 809 [2012]; Reyes v Diaz, 82 AD3d 484 [2011]; see generally Jilani v Palmer, 83 AD3d 786, 787 [2011]).

Since the defendants failed to meet their prima facie burden, it is not necessary to determine whether the submissions by the plaintiff in opposition were sufficient to raise a triable issue of fact as to whether he sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the accident (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Che Hong Kim v Kossoff, 90 AD3d at 969).

Accordingly, the Supreme Court should have denied the defendants' 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 accident. Connolly, J.P., Miller, Voutsinas and Hom, JJ., concur.