Opinion
2013-04-24
Christine MARTINKUS, appellant, v. Jennifer L. DAHMEN, respondent.
Scott Lockwood, North Babylon, N.Y., for appellant. Russo Apoznanski & Tambasco, Westbury, N.Y. (Susan J. Mitola of counsel), for respondent.
Scott Lockwood, North Babylon, N.Y., for appellant. Russo Apoznanski & Tambasco, Westbury, N.Y. (Susan J. Mitola of counsel), for respondent.
PETER B. SKELOS, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, and SYLVIA HINDS–RADIX, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Farneti, J.), entered April 20, 2012, which 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 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 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 defendant submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine did not constitute serious injuries under either 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).
The plaintiff failed to raise a triable issue of fact in opposition. The plaintiff's argument that the defendant failed to establish that she did not sustain a serious injury under the 90/180–day category of Insurance Law § 5102(d) is without merit, as the plaintiff failed to allege such an injury in her bill of particulars ( see MacDonald v. Meierhoffer, 13 A.D.3d 689, 786 N.Y.S.2d 228;Kenney v. Amodei, 119 A.D.2d 1006, 500 N.Y.S.2d 994). In any event, the evidence submitted by the defendant established, prima facie, that the plaintiff did not sustain such an injury, and the plaintiff failed to raise a triable issue of fact in opposition ( see generally Karpinos v. Cora, 89 A.D.3d 994, 995, 933 N.Y.S.2d 383).
Thus, the Supreme Court properly 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).