Torres v. Rettaliata

Summary

The Appellate Division, Second Department, affirmed an order denying the defendants' motion for summary judgment in a personal-injury action arising from a motor vehicle accident. The court held that although the defendants established prima facie that the plaintiff did not sustain a serious injury under Insurance Law § 5102(d), the plaintiff raised triable issues of fact concerning injuries to her right shoulder and cervical and lumbar spine, and the defendants failed to establish lack of causation.

Holdings

1. Although defendants met their prima facie burden regarding the serious-injury categories, Torres raised a triable issue of fact concerning whether she sustained serious injuries to her right shoulder and cervical and lumbar spine; therefore, summary judgment dismissing the complaint was properly denied.
2. Because defendants failed to establish prima facie a lack of causation, the burden did not shift to Torres to raise a triable issue regarding causation or explain any gap in treatment.

Questions Presented

1. Whether defendants established prima facie that Torres did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
2. Whether Torres raised a triable issue of fact regarding serious injury to her right shoulder and cervical and lumbar spine under the permanent consequential limitation of use and significant limitation of use categories.
3. Whether defendants established prima facie a lack of causation so as to shift the burden to Torres to explain any gap in treatment.

Disposition

affirmed