Opinion
2015-05243, Index No. 13037/13.
05-18-2016
Festus OLAGUNJU, respondent, v. ANNA & DIANE CAB CORP., appellant, et al., defendant.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn, N.Y. (Robert D. Grace of counsel), for appellant. Subin Associates, LLP, New York, N.Y. (Robert J. Eisen and Brian Isaac of counsel), for respondent.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn, N.Y. (Robert D. Grace of counsel), for appellant.
Subin Associates, LLP, New York, N.Y. (Robert J. Eisen and Brian Isaac of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, and VALERIE BRATHWAITE NELSON, JJ.
Opinion In an action to recover damages for personal injuries, the defendant Anna & Diane Cab Corp. appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated March 27, 2015, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it 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 reversed, on the law, with costs, and the motion of the defendant Anna & Diane Cab Corp. for summary judgment dismissing the complaint insofar as asserted against it is granted.
The defendant Anna & Diane Cab Corp. (hereinafter the moving defendant) met its 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 moving defendant submitted competent medical evidence establishing, prima facie, that none of the alleged injuries to the cervical and lumbar regions of the plaintiff's spine, as well as the plaintiff's shoulders, knees, wrists, and left elbow, constituted a serious injury 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 ). In addition, the defendant demonstrated, prima facie, that during the 180–day period immediately following the subject accident, the plaintiff did not have an injury or impairment which, for more than 90 days, prevented him from performing substantially all of the acts that constituted his usual and customary daily activities (see John v. Linden, 124 A.D.3d 598, 599, 1 N.Y.S.3d 274 ; Marin v. Ieni, 108 A.D.3d 656, 657, 969 N.Y.S.2d 165 ).
In opposition, the plaintiff failed to raise a triable issue of fact, as the report submitted in opposition was not in admissible form (see CPLR 2106 ; Rivers v. Birnbaum, 102 A.D.3d 26, 45, 953 N.Y.S.2d 232 ; Burgos v. Vargas, 33 A.D.3d 579, 580, 822 N.Y.S.2d 297 ).
Accordingly, the Supreme Court should have granted the moving defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.