Barbara H. Mullally, appellant, v. Michael E. Saclaridis, respondent. (2010)

Submitted-May 5, 2010

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Adams, J.), entered May 4, 2009, which, upon an order of the same court dated April 7, 2009, granting the defendant's cross motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and denying, as academic, her motion for summary judgment on the issue of liability, is in favor of the defendant and against her dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

The defendant met his 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;  Gaddy v. Eyler, 79 N.Y.2d 955, 956-957).   In opposition, the plaintiff, who limited her claims of injury to only her right shoulder, failed to raise a triable issue of fact (see Gaddy v. Eyler, 79 N.Y.2d 955).

Since the Supreme Court properly granted the defendant's motion for summary judgment, it also properly denied, as academic, the plaintiff's motion for summary judgment on the issue of liability.

SKELOS, J.P., MILLER, ENG, HALL and AUSTIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court