Opinion
2013-07-10
Dilcia RODRIGUEZ, respondent, v. James ZOLLER, et al., appellants.
Martin, Fallon & Mullé, Huntington, N.Y. (Richard C. Mullé of counsel), for appellants.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated September 5, 2012, which denied their 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 reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.
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 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 defendants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the plaintiff's right shoulder, left shoulder, and right elbow, and to the cervical and lumbar regions of her 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 defendants 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 Richards v. Tyson, 64 A.D.3d 760, 761, 883 N.Y.S.2d 575). The plaintiff failed to raise a triable issue of fact in opposition.
Therefore, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.