Opinion
2019–09814 Index No. 524720/17
04-06-2022
Pincus D. HOROWITZ, appellant, v. Herminio SANTIAGO, respondent, et al., defendant.
William Pager, Brooklyn, NY, for appellant. Jennifer S. Adams, Lake Success, NY (Rodney Mohammed of counsel), for respondent.
William Pager, Brooklyn, NY, for appellant.
Jennifer S. Adams, Lake Success, NY (Rodney Mohammed of counsel), for respondent.
ROBERT J. MILLER, J.P., JOSEPH J. MALTESE, JOSEPH A. ZAYAS, WILLIAM G. FORD, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Edgar G. Walker, J.), dated August 2, 2019. The order granted the motion of the defendant Herminio Santiago for summary judgment dismissing the complaint insofar as asserted against him 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.
On July 18, 2017, the plaintiff, a pedestrian, was struck by a vehicle owned by the defendant Herminio Santiago (hereinafter the defendant). The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in the accident. Thereafter, the defendant moved for summary judgment dismissing the complaint insofar as asserted against him 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 dated August 2, 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, prima facie, that the alleged injury to the cervical region of the plaintiff's spine was not caused by the 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 ; see generally Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424 ). The defendant also 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.
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint insofar as asserted against him.
MILLER, J.P., MALTESE, ZAYAS and FORD, JJ., concur.