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MacInness v. Chao Wang

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Mar 27, 2019
170 A.D.3d 1155 (N.Y. App. Div. 2019)

Opinion

2017–02802 (Index No. 703740/14)

03-27-2019

James MACINNESS, et al., Appellants, v. CHAO WANG, et al., Defendants, Wai Man Wilda Cheung, et al., Respondents.

Philip J. Dinhofer, LLC (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac, Jillian Rosen, and Brianna Walsh], of counsel), for appellants. Cheven, Keely & Hatzis (Thomas Torto, New York, NY, of counsel), for respondents.


Philip J. Dinhofer, LLC (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac, Jillian Rosen, and Brianna Walsh], of counsel), for appellants.

Cheven, Keely & Hatzis (Thomas Torto, New York, NY, of counsel), for respondents.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The plaintiffs, James MacInness and Lisa MacInness, commenced this action, inter alia, to recover damages for personal injuries that the plaintiff James MacInness (hereinafter the plaintiff) contends he sustained in a motor vehicle accident on March 18, 2009. The defendants Wai Man Wilda Cheung and Tse Chi Chung (hereinafter together the defendants) moved for summary judgment dismissing the complaint insofar as asserted against them 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, and the plaintiffs appeal.

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 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 injury to the lumbar region of the plaintiff's spine was not caused by the accident (see Gouvea v. Lesende , 127 A.D.3d 811, 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 addition, the defendants established, prima facie, that the plaintiff did not sustain a serious injury under the 90/180–day category of Insurance Law § 5102(d) (see Prisco v. Rinaldi , 166 A.D.3d 1026, 86 N.Y.S.3d 748 ; DaCosta v. Gibbs , 139 A.D.3d 487, 488, 33 N.Y.S.3d 160 ). In opposition, the plaintiffs failed to raise a triable issue of fact (see John v. Linden , 124 A.D.3d 598, 599, 1 N.Y.S.3d 274 ; Irizarry v. Lindor , 110 A.D.3d 846, 848, 973 N.Y.S.2d 296 ).

Accordingly, we agree with the Supreme Court's determination to grant the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.

DILLON, J.P., AUSTIN, MILLER and DUFFY, JJ., concur.


Summaries of

MacInness v. Chao Wang

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Mar 27, 2019
170 A.D.3d 1155 (N.Y. App. Div. 2019)
Case details for

MacInness v. Chao Wang

Case Details

Full title:James MacInness, et al., appellants, v. Chao Wang, et al., defendants, Wai…

Court:SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Mar 27, 2019

Citations

170 A.D.3d 1155 (N.Y. App. Div. 2019)
170 A.D.3d 1155
2019 N.Y. Slip Op. 2331