Opinion
2016–12543 (Index No. 10669/14)
11-21-2018
Kimberly M. PEREZ, et al., respondents, v. Jacqueline M. DIXON, appellant.
Picciano & Scahill, P.C., Westbury, N.Y. (Andrea E. Ferrucci of counsel), for appellant.
Picciano & Scahill, P.C., Westbury, N.Y. (Andrea E. Ferrucci of counsel), for appellant.
REINALDO E. RIVERA, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Thomas Feinman, J.), dated October 26, 2016. The order denied the defendant's motion for summary judgment dismissing the complaint on the ground that the injured 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 defendant's motion for summary judgment dismissing the complaint is granted.
The plaintiffs commenced this action, inter alia, to recover damages for personal injuries allegedly sustained by the plaintiff Kimberly M. Perez (hereinafter the injured plaintiff) in a motor vehicle accident on January 14, 2014. The defendant moved for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. The Supreme Court denied the motion, and the defendant appeals.
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 injured 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 ), and that the alleged injury to the cervical region of the injured plaintiff's spine was not caused by the subject accident (see Gouvea v. Lesende, 127 A.D.3d 811, 6 N.Y.S.3d 607 ; Fontana v. Aamaar & Maani Karan Tr. Corp., 124 A.D.3d 579, 1 N.Y.S.3d 324 ; Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424 ). In addition, the defendant submitted competent medical evidence establishing, prima facie, that the injured plaintiff did not sustain a psychological injury as a result of the accident (see Dziuma v. Jet Taxi, Inc., 148 A.D.3d 573, 573–574, 50 N.Y.S.3d 341 ; Diaz v. Barimah, 144 A.D.3d 497, 40 N.Y.S.3d 762 ; Krivit v. Pitula, 79 A.D.3d 1432, 1432–1433, 912 N.Y.S.2d 789 ; cf. Haque v. City of New York, 97 A.D.3d 636, 636–637, 947 N.Y.S.2d 894 ). In opposition, the plaintiffs failed to raise a triable issue of fact (see Perl v. Meher, 18 N.Y.3d 208, 217–218, 936 N.Y.S.2d 655, 960 N.E.2d 424 ; Grasso v. Angerami, 79 N.Y.2d 813, 814–815, 580 N.Y.S.2d 178, 588 N.E.2d 76 ; John v. Linden, 124 A.D.3d 598, 599, 1 N.Y.S.3d 274 ).
Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.
RIVERA, J.P., MILLER, DUFFY and LASALLE, JJ., concur.