Opinion
2012-06-13
Santiago MORAN, appellant, v. Pavol KOLLAR, respondent.
Sobo & Sobo, LLP, Middletown, N.Y. (Suzan D. Paras of counsel), for appellant. Craig P. Curcio, Middletown, N.Y. (Bryan R. Kaplan of counsel), for respondent.
Sobo & Sobo, LLP, Middletown, N.Y. (Suzan D. Paras of counsel), for appellant. Craig P. Curcio, Middletown, N.Y. (Bryan R. Kaplan of counsel), for respondent.
REINALDO E. RIVERA, J.P., RANDALL T. ENG, CHERYL E. CHAMBERS, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Slobod, J.), dated March 22, 2011, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that he 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 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 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 plaintiff's left eye and the cervical region of his spine did not constitute serious injuries within the meaning of Insurance Law § 5102(d) ( see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180;Rodriguez v. Huerfano, 46 A.D.3d 794, 795, 849 N.Y.S.2d 275;Koppelmann v. Lepler, 135 A.D.2d 507, 508, 522 N.Y.S.2d 12). The defendant also submitted evidence establishing, prima facie, that the plaintiff did not sustain a serious injury under the 90/180 day category of Insurance Law § 5102(d) ( see Rivera v. Bushwick Ridgewood Props., Inc., 63 A.D.3d 712, 713–714, 880 N.Y.S.2d 149).
In opposition, the plaintiff failed to raise a triable issue of fact. The defendant was not required to address the plaintiff's shoulder injuries, since no claim for shoulder injuries appeared in the complaint or bill of particulars, and the plaintiff made no motion to amend the bill of particulars so as to include those injuries ( see Kreimerman v. Stunis, 74 A.D.3d 753, 754, 902 N.Y.S.2d 180;Felix v. Wildred, 54 A.D.3d 891, 892, 863 N.Y.S.2d 832;Ifrach v. Neiman, 306 A.D.2d 380, 760 N.Y.S.2d 866). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.