Opinion
2014-01-8
Jeena LIRIANO, respondent, v. John RUPERTO, appellant.
Martin, Fallon & Mullé, Huntington, N.Y. (Richard C. Mullé of counsel), for appellant. Steven D. Dollinger, Huntington, N.Y. (Susan R. Nudelman of counsel), for respondent.
Martin, Fallon & Mullé, Huntington, N.Y. (Richard C. Mullé of counsel), for appellant. Steven D. Dollinger, Huntington, N.Y. (Susan R. Nudelman of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Bruno, J.), dated June 10, 2013, which denied his 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 reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.
On July 19, 2009, the plaintiff allegedly was injured when her motor vehicle was hit in the rear by a motor vehicle owned and operated by the defendant while the plaintiff was stopped for a red light at an intersection. 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 denied the motion.
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 lumbar, cervical, and thoracic regions of the plaintiff's spine, and to her left knee, 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). The defendant also submitted evidence showing that the plaintiff did not sustain a serious injury under the 90/180–day category of Insurance Law § 5102(d) ( see Cox v. Sisti, 110 A.D.3d 668, 971 N.Y.S.2d 876; Karpinos v. Cora, 89 A.D.3d 994, 995, 933 N.Y.S.2d 383). In opposition, the plaintiff failed to raise a triable issue of fact ( see Thomason v. Thomason, 40 A.D.3d 627, 628, 836 N.Y.S.2d 196; Borgella v. D & L Taxi Corp., 38 A.D.3d 701, 701, 834 N.Y.S.2d 199; Nemchyonok v. Peng Liu Ying, 2 A.D.3d 421, 421, 767 N.Y.S.2d 811).
Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.
In light of our determination, we need not reach the defendant's remaining contention. SKELOS, J.P., DICKERSON, LOTT and AUSTIN, JJ., concur.