Opinion
2017–01456 Index No. 13138/13
05-23-2018
HEESOOK CHOI, appellant, v. Joseph MENDEZ, respondent.
Andrew Park, P.C., New York, N.Y. (Steve J. Park of counsel), for appellant. DeSena & Sweeney, LLP, Bohemia, N.Y. (Shawn P. O'Shaughnessy of counsel), for respondent.
Andrew Park, P.C., New York, N.Y. (Steve J. Park of counsel), for appellant.
DeSena & Sweeney, LLP, Bohemia, N.Y. (Shawn P. O'Shaughnessy of counsel), for respondent.
MARK C. DILLON, J.P., SANDRA L. SGROI, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Paul J. Baisley, Jr., J.), dated December 14, 2016. The order granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained in a motor vehicle accident. 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 subject accident. 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 subject accident (see Toure v. Avis Rent A Car Sys. , 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, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine and the plaintiff's left shoulder 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 A.D.3d 614, 874 N.Y.S.2d 180 ), and that, in any event, these alleged injuries were not caused by the subject accident (see 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 ; Jilani v. Palmer , 83 A.D.3d 786, 787, 920 N.Y.S.2d 424 ). In addition, the defendant established, prima facie, that the plaintiff did not sustain a serious injury under the 90/180–day category of Insurance Law § 5102(d) by submitting a transcript of the plaintiff's deposition testimony, which demonstrated that she missed about six weeks of work for the first 180 days following the accident (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.
Accordingly, we agree with the Supreme Court's determination granting the defendant's motion for summary judgment dismissing the complaint.
DILLON, J.P., SGROI, HINDS–RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.