Opinion
2012-04-10
Christine DILIBERTO, appellant, v. Corene BARBERICH, respondent.
Ginsburg & Misk, Queens Village, N.Y. (Gerard N. Misk of counsel), for appellant. David J. Sobel, P.C., Smithtown, N.Y., for respondent.
Ginsburg & Misk, Queens Village, N.Y. (Gerard N. Misk of counsel), for appellant. David J. Sobel, P.C., Smithtown, N.Y., for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Farneti, J.), dated October 17, 2011, which denied her cross motion for summary judgment, in effect, on the issue of liability , and dismissing the fifth affirmative defense alleging the lack of a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the plaintiff's cross motion which was for summary judgment, in effect, on the issue of liability, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability ( see Franklin v. 2 Guys From Long Pond, Inc., 50 A.D.3d 846, 847, 858 N.Y.S.2d 186; Gregson v. Terry, 35 A.D.3d 358, 361, 827 N.Y.S.2d 181; Russo v. Sabella Bus Co., 275 A.D.2d 660, 713 N.Y.S.2d 315). In opposition, the defendant failed to raise a triable issue of fact as to her liability ( Russo v. Sabella Bus Co., 275 A.D.2d at 660–661, 713 N.Y.S.2d 315). Accordingly, the Supreme Court should have granted that branch of the plaintiff's cross motion which was for summary judgment, in effect, on the issue of liability.
The plaintiff, however, failed to establish her prima facie entitlement to judgment as a matter of law dismissing the fifth affirmative defense, which alleged that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. While the plaintiff submitted competent medical evidence establishing, prima facie, that she had a fractured rib, which constitutes a serious injury within the meaning of Insurance Law § 5102(d) ( see Bebry v. Farkas–Galindez, 276 A.D.2d 656, 714 N.Y.S.2d 734), she failed to establish, prima facie, that the injury was causally related to the subject accident ( see Kapeleris v. Riordan, 89 A.D.3d 903, 904, 933 N.Y.S.2d 92; Elshaarawy v. U–Haul Co. of Miss., 72 A.D.3d 878, 881, 900 N.Y.S.2d 321; Dabbs v. Kelly, 245 A.D.2d 482, 482–483, 666 N.Y.S.2d 40). Accordingly, since the plaintiff failed to meet her prima facie burden, the Supreme Court properly denied that branch of the plaintiff's cross motion which was for summary judgment dismissing the fifth affirmative defense, without considering the sufficiency of the defendant's opposition papers ( see Altamura v. Onebeacon Ins. Group, 68 A.D.3d 792, 889 N.Y.S.2d 472; see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).