Opinion
2017–05815 Index No. 603434/15
10-28-2020
James CANNER, etc., appellant, v. Roger DIAMOND, respondent.
Parker Waichman, LLP, Port Washington, N.Y. (Jay L.T. Breakstone of counsel), for appellant. Richard T. Lau & Associates, Jericho, N.Y. (Gene W. Wiggins of counsel), for respondent.
Parker Waichman, LLP, Port Washington, N.Y. (Jay L.T. Breakstone of counsel), for appellant.
Richard T. Lau & Associates, Jericho, N.Y. (Gene W. Wiggins of counsel), for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, 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, Nassau County (Daniel Palmieri, J.), dated April 12, 2017. 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 when he was struck by a vehicle while he was riding a bicycle on June 3, 2012. 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 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., 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 injury to the plaintiff's left ankle 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 ). Contrary to the plaintiff's contention, the defendant's expert did not have to address the plaintiff's complaints of pain in his left ankle as subjective pain cannot form the basis of a serious injury (see Scheer v. Koubek, 70 N.Y.2d 678, 679, 518 N.Y.S.2d 788, 512 N.E.2d 309 ; Calabro v. Petersen, 82 A.D.3d 1030, 1031, 918 N.Y.S.2d 900 ).
In his main brief, the plaintiff does not dispute the Supreme Court's determination that he failed to raise a triable issue of fact as to whether he sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Gobin v. Singh, 176 A.D.3d 1034, 1035, 108 N.Y.S.3d 870 ). To the extent that the plaintiff contends for the first time in his reply brief that he raised a triable issue of fact, this contention is not properly before this Court (see Castaldini v. Walsh, 166 A.D.3d 577, 578, 86 N.Y.S.3d 608 ).
Accordingly, we agree with the Supreme Court's determination to grant the defendant's motion for summary judgment dismissing the complaint.
BALKIN, J.P., AUSTIN, LASALLE and IANNACCI, JJ., concur.