Opinion
2014-07847 Index No. 25628/10.
02-24-2016
Bekim SUKALIC, appellant, v. Izak OZONE, et al., respondents.
Kopelevich & Feldsherova, P.C., Brooklyn, N.Y. (Leo Shalit and Mikhail Kopelevich of counsel), for appellant. Harris, King, Fodera & Correia, New York, N.Y. (Chikodi E. Emerenini of counsel), for respondents.
Kopelevich & Feldsherova, P.C., Brooklyn, N.Y. (Leo Shalit and Mikhail Kopelevich of counsel), for appellant.
Harris, King, Fodera & Correia, New York, N.Y. (Chikodi E. Emerenini of counsel), for respondents.
Opinion
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Saitta, J.), dated June 12, 2014, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he 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 defendants met their 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 defendants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the plaintiff's left shoulder did not constitute serious injuries under 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).
In opposition, the plaintiff failed to raise a triable issue of fact. The affirmation of the plaintiff's examining physician, William J. Kulak, failed to raise a triable issue of fact as to whether the plaintiff sustained a serious injury under the permanent consequential limitation of use category of Insurance Law § 5102(d) since Kulak failed to set forth any objective medical findings from a recent examination (see Griffiths v. Munoz, 98 A.D.3d 997, 998, 950 N.Y.S.2d 787; Lively v. Fernandez, 85 A.D.3d 981, 982, 925 N.Y.S.2d 650). Moreover, the plaintiff failed to raise a triable issue of fact under the significant limitation of use category of Insurance Law § 5102(d), as he did not submit any competent medical evidence containing either a qualitative or a quantitative assessment of his condition made contemporaneously with the subject accident (see Perl v. Meher, 18 N.Y.3d 208, 217–218, 936 N.Y.S.2d 655, 960 N.E.2d 424; Griffiths v. Munoz, 98 A.D.3d at 999, 950 N.Y.S.2d 787; cf. Estrella v. GEICO Ins. Co., 102 A.D.3d 730, 731–732, 959 N.Y.S.2d 210).
Furthermore, the Supreme Court properly declined to consider the affirmed report of Dr. Pauline Raites, which was improperly submitted by the plaintiff for the first time in a surreply (see Mu Ying Zhu v. Zhi Rong Lin, 1 A.D.3d 416, 417, 766 N.Y.S.2d 897).
Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.