AUSTIN v. NUNEZ (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated September 8, 2021.  The order granted the separate motions of the defendants 1 Stop Village Auto Care Corp. and Hamid Shahbaz and the defendants Pedro Nunez and Alyssa Santiago for summary judgment dismissing the complaint insofar as asserted against each of them 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 affirmed, with costs to the defendants Pedro Nunez and Alyssa Santiago.

The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident.  The defendants 1 Stop Village Auto Care Corp. and Hamid Shahbaz and the defendants Pedro Nunez and Alyssa Santiago separately moved for summary judgment dismissing the complaint insofar as asserted against each of them 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.  In an order dated September 8, 2021, the Supreme Court granted the separate motions.  The plaintiff appeals.

The defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Toure v. Avis Rent A Car Sys., Inc., 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 left shoulder, left hand/fingers, right hip, right pelvis, and right leg did not constitute serious injuries under either the permanent loss of use, permanent consequential limitation of use, or significant limitation of use categories of Insurance Law § 5102(d) (see Dinc v. Shalesi, 208 A.D.3d 558, 559, 172 N.Y.S.3d 713;  Nicholson v. Kwarteng, 180 A.D.3d 695, 696, 115 N.Y.S.3d 707;  Radoncic v. Faulk, 170 A.D.3d 1058, 1060, 96 N.Y.S.3d 352).  The defendants also demonstrated, prima facie, that the plaintiff did not sustain a serious injury under the 90/180–day category of Insurance Law § 5102(d) (see Dinc v. Shalesi, 208 A.D.3d at 559, 172 N.Y.S.3d 713;  Nicholson v. Kwarteng, 180 A.D.3d at 695, 115 N.Y.S.3d 707).

In opposition, the plaintiff failed to raise a triable issue of fact.  The affirmed report of the plaintiff's expert was insufficient to raise a triable issue of fact, as he failed to identify the method utilized to measure the plaintiff's range of motion (see Dinc v. Shalesi, 208 A.D.3d at 559, 172 N.Y.S.3d 713;  Nicholson v. Kwarteng, 180 A.D.3d at 696, 115 N.Y.S.3d 707).

The parties’ remaining contentions need not be addressed in light of our determination.

Accordingly, the Supreme Court properly granted the defendants’ separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.

BRATHWAITE NELSON, J.P., GENOVESI, WARHIT and VOUTSINAS, JJ., concur.