Triable Issue of Fact Raised Under Insurance Law § 5102(d) Overturns Motion for Summary Judgment

In an action to recover damages for personal injuries, the plaintiff appealed from an order of the Kings County Supreme Court. The order granted the defendant, Salvatore Fasino's, 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. The defendant submitted competent medical evidence establishing prima facie that the alleged injury to the cervical region of the plaintiff's spine did not constitute a serious injury under the significant limitation of use category of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180).

In opposition, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to the cervical region of her spine under the significant limitation of use category of Insurance Law § 5102(d) (see Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655, 960 N.E.2d 424). As such, the Supreme Court should have denied the defendant's motion for summary judgment, dismissing the complaint insofar as asserted against him 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.