| Park v Buondelmonte |
| 2016 NY Slip Op 03480 |
| Decided on May 4, 2016 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on May 4, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
L. PRISCILLA HALL
SANDRA L. SGROI
COLLEEN D. DUFFY, JJ.
2015-02812
(Index No. 601044/12)
v
C.S. Buondelmonte, respondent/ counterclaim plaintiff.
Andrew Park, P.C., New York, NY (Ji-Hyong Lee of counsel), for appellant and appellant/counterclaim defendant.
Russo, Apoznanski & Tambasco, Melville, NY (Susan J. Mitola of counsel), for respondent/counterclaim plaintiff.
Andrea G. Sawyers, Melville, NY (Scott W. Driver of counsel), for counterclaim plaintiff.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiffs Hyun H. Cho and Ji Hye Lee appeal from an order of the Supreme Court, Nassau County (J. Murphy, J.), entered January 14, 2015, which granted the defendant's motion for summary judgment dismissing the complaint insofar as asserted by them on the ground that neither of them sustained 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 defendant's motion for summary judgment dismissing the complaint insofar as asserted by the plaintiffs Hyun H. Cho and Ji Hye Lee is denied.
The defendant met her prima facie burden of showing that the plaintiffs Hyun H. Cho and Ji Hye Lee (hereinafter together the appellants) 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 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of Hyun H. Cho's spine and the cervical region of Ji Hye Lee's spine did not constitute serious injuries under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v Yshua, 59 AD3d 614). In opposition, however, the appellants raised triable issues of fact as to whether Hyun H. Cho sustained serious injuries to the cervical and lumbar regions of his spine and whether Ji Hye Lee sustained a serious injury to the cervical region of her spine (see Perl v Meher, 18 NY3d 208, 218-219; Dietrich v Puff Cab Corp., 63 AD3d 778, 779-780; Djetoumani v Transit, Inc., 50 AD3d 944, 945-946).
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint insofar as asserted by the appellants.
ENG, P.J., HALL, SGROI and DUFFY, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court