VAZQUEZ v. VAZQUEZ (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Lourdes M. Ventura, J.), dated November 3, 2022.  The order granted the defendants’ separate motions for summary judgment dismissing the amended 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 one bill of costs.

The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained in a motor vehicle accident.  The defendants separately moved for summary judgment dismissing the amended 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 November 3, 2022, the Supreme Court granted the separate motions.  The plaintiff appeals.

Contrary to the plaintiff's contention, the defendants met their prima facie burden of demonstrating that the plaintiff did not sustain a serious injury to her right knee under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (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;  Dinc v. Shalesi, 208 A.D.3d 558, 559, 172 N.Y.S.3d 713;  Morales v. Carlisi, 207 A.D.3d 715, 716, 170 N.Y.S.3d 881).  In opposition, the plaintiff failed to raise a triable issue of fact, as her expert failed to identify the method utilized to measure range of motion and failed to compare his range of motion findings to what is normal (Dinc v. Shalesi, 208 A.D.3d at 559, 172 N.Y.S.3d 713;  Morales v. Carlisi, 207 A.D.3d at 716, 170 N.Y.S.3d 881).

The plaintiff's remaining contentions either need not be reached in light of our determination or are improperly raised for the first time in her reply brief.

BRATHWAITE NELSON, J.P., VOUTSINAS, LANDICINO and MCCORMACK, JJ., concur.