Opinion
2017–08047 Index No. 605351/15
04-03-2019
Lauren F. CAMPANILE, Appellant, v. Robert F. MILLER, Respondent.
Gruenberg Kelly Della, Ronkonkoma, N.Y. (Zachary M. Beriloff, Locust Valley, of counsel), for appellant. Russo & Tambasco, Melville, N.Y. (Yamile Al–Sullami of counsel), for respondent.
Gruenberg Kelly Della, Ronkonkoma, N.Y. (Zachary M. Beriloff, Locust Valley, of counsel), for appellant.
Russo & Tambasco, Melville, N.Y. (Yamile Al–Sullami of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, SYLVIA O. HINDS–RADIX, BETSY BARROS, JJ.
DECISION & ORDERIn an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Joseph Farneti, J.), entered June 22, 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 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 accident. The Supreme Court granted the motion. 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 injuries to the cervical and lumbar regions of the plaintiff's spine were 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 ).
In opposition, the plaintiff failed to raise a triable issue of fact, as her experts failed to address the findings of the defendant's radiologist that the magnetic resonance imaging of the cervical and lumbar regions of the plaintiff's spine, taken approximately one month after the accident, revealed that the alleged injuries were degenerative in nature (see Cavitolo v. Broser, 163 A.D.3d 913, 914, 81 N.Y.S.3d 188 ; Franklin v. Gareyua, 136 A.D.3d 464, 465, 467, 24 N.Y.S.3d 304, affd 29 N.Y.3d 925, 49 N.Y.S.3d 651, 71 N.E.3d 1218 ; John v. Linden, 124 A.D.3d 598, 599, 1 N.Y.S.3d 274 ; Alvarez v. NYLL Mgt. Ltd., 120 A.D.3d 1043, 1044, 993 N.Y.S.2d 1, affd 24 N.Y.3d 1191, 1192, 3 N.Y.S.3d 757, 27 N.E.3d 471 ; Irizarry v. Lindor, 110 A.D.3d 846, 848, 973 N.Y.S.2d 296 ).
Accordingly, we agree with the Supreme Court's determination granting 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 accident.
SCHEINKMAN, P.J., RIVERA, HINDS–RADIX and BARROS, JJ., concur.