Stone v. Mifsud

Milika N. Stone, Appellant, against Rachel A. Mifsud and Victor Mifsud, Respondents. Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered November 28, 2014. The order granted defendants' motion for summary judgment dismissing the first cause of action. ORDERED that the order is reversed, without costs, and defendants' motion for summary judgment dismissing the first cause of action is denied. Plaintiff commenced this action to recover for personal injuries allegedly sustained in a motor vehicle accident and for property damage to plaintiff's vehicle. Defendants moved for summary judgment dismissing the first cause of action, which seeks to recover for serious injuries as defined under Insurance Law § 5102 (d), and plaintiff opposed the motion. By order entered November 28, 2014, the Civil Court granted defendants' motion. Defendants failed to make a prima facie showing that plaintiff had not sustained a serious injury under the significant limitation of use or permanent consequential limitation of use category of Insurance Law § 5102 (d) as a result of the accident at issue (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The papers submitted by defendants failed to adequately address plaintiff's claim, as set forth in the verified bill of particulars, that she had sustained a serious injury to the cervical region of her spine (see Barkley v Thomas, 128 AD3d 873 [2015]; Addison v Joseph-Walters, 99 AD3d 961 [2012]; Glover v Batista, 94 AD3d 699 [2012]) under either the permanent consequential limitation of use or significant limitation of use category. Since defendants did not sustain their prima facie burden, it is unnecessary to determine whether the papers submitted by plaintiff in opposition were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Assemi v Levan, 120 AD3d 1365 [2014]). Accordingly, the order is reversed and defendants' motion for summary judgment dismissing the first cause of action is denied. Pesce, P.J., Solomon and Elliot, JJ., concur. Decision Date: January 06, 2017