CERI FELIX v. REMY (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Lillian Wan, J.), dated June 9, 2021.  The order, insofar as appealed from, denied the plaintiff's cross-motion for summary judgment on the issue of whether he sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident.  The defendant Rene Remy moved for summary judgment dismissing the complaint insofar as asserted against him 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 accident.  The plaintiff opposed and cross-moved for summary judgment on the issue of whether he sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident.  In an order dated June 9, 2021, the Supreme Court, inter alia, denied the plaintiff's cross-motion.  The plaintiff appeals.

The plaintiff failed to meet his prima facie burden of showing that he sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident.  The plaintiff failed to eliminate all triable issues of fact as to whether he sustained a fracture to his left knee as a result of the accident (see Degachi v. Faridi, 215 A.D.3d 733, 187 N.Y.S.3d 85;  Spann v. City of New York, 145 A.D.3d 932, 934, 43 N.Y.S.3d 143).  Since the plaintiff failed to satisfy his prima facie burden, the Supreme Court properly denied his cross-motion without regard to the sufficiency of Remy's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

DILLON, J.P., CHRISTOPHER, WOOTEN and TAYLOR, JJ., concur.