Opinion
2019–08435 Index No. 607252/17
09-28-2022
Albert ADOLPHUS, appellant, v. Glen L. MARCHIONY, respondent.
Mallilo & Grossman, Flushing, NY (Lorenzo Tasso of counsel), for appellant. Kelly, Rode & Kelly, LLP, Mineola, NY (Eric P. Tosca of counsel), for respondent.
Mallilo & Grossman, Flushing, NY (Lorenzo Tasso of counsel), for appellant.
Kelly, Rode & Kelly, LLP, Mineola, NY (Eric P. Tosca of counsel), for respondent.
HECTOR D. LASALLE, P.J., ROBERT J. MILLER, LARA J. GENOVESI, LILLIAN WAN, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered June 25, 2019. The order granted the defendant'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.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident that occurred on April 10, 2017. The defendant 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 entered June 25, 2019, the Supreme Court granted the defendant's motion, and the plaintiff appeals.
The defendant met his 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., Inc., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 ). The defendant submitted competent medical evidence establishing that the alleged injury to the lumbar region of the plaintiff's spine did not constitute a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180 ). The defendant also submitted competent medical evidence establishing, prima facie, that the alleged injury to the cervical region of the plaintiff's spine was not caused by the accident (see Gash v. Miller, 177 A.D.3d 950, 111 N.Y.S.3d 200 ; Gouvea v. Lesende, 127 A.D.3d 811, 6 N.Y.S.3d 607 ; Fontana v. Aamaar & Maani Karan Tr. Corp., 124 A.D.3d 579, 1 N.Y.S.3d 324 ). In addition, the defendant demonstrated, prima facie, that the plaintiff did not sustain a serious injury under the 90/180–day category of Insurance Law § 5102(d) (see John v. Linden, 124 A.D.3d 598, 599, 1 N.Y.S.3d 274 ; Marin v. Ieni, 108 A.D.3d 656, 657, 969 N.Y.S.2d 165 ; Richards v. Tyson, 64 A.D.3d 760, 761, 883 N.Y.S.2d 575 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Mnatcakanova v. Elliot, 174 A.D.3d 798, 800, 106 N.Y.S.3d 112 ; Zavala v. Zizzo, 172 A.D.3d 793, 794, 99 N.Y.S.3d 354 ; Cavitolo v. Broser, 163 A.D.3d 913, 914, 81 N.Y.S.3d 188 ; Estrella v. GEICO Ins. Co., 102 A.D.3d 730, 731–732, 959 N.Y.S.2d 210 ). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.
LASALLE, P.J., MILLER, GENOVESI and WAN, JJ., concur.