Opinion
2019–01736 Index No. 603776/17
12-16-2020
Lucille K. DEVITO, appellant, v. Danielle Ann ANATRA, respondent.
Brian J. Levy & Associates, PLLC (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant. Penino & Moynihan, LLP, White Plains, N.Y. (Henry L. Liao of counsel), for respondent.
Brian J. Levy & Associates, PLLC (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.
Penino & Moynihan, LLP, White Plains, N.Y. (Henry L. Liao of counsel), for respondent.
SHERI S. ROMAN, J.P., COLLEEN D. DUFFY, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Robert A. Bruno, J.), dated December 6, 2018. 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 that occurred on August 29, 2016. Thereafter, 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 defendant's motion, and the plaintiff appeals.
The defendant met her 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 degenerative in nature and not caused by the accident (see Gash v. Miller , 177 A.D.3d 950, 111 N.Y.S.3d 200 ; 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, 580, 1 N.Y.S.3d 324 ).
In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's expert failed to address the findings of the defendant's radiologist that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine were degenerative in nature (see Mnatcakanova v. Elliot , 174 A.D.3d 798, 800, 106 N.Y.S.3d 112 ; Zavala v. Zizzo , 172 A.D.3d 793, 99 N.Y.S.3d 354 ; Cavitolo v. Broser , 163 A.D.3d 913, 914, 81 N.Y.S.3d 188 ).
Accordingly, we agree with the Supreme Court's determination granting the defendant's motion for summary judgment dismissing the complaint.
ROMAN, J.P., DUFFY, BARROS and CONNOLLY, JJ., concur.