VALERA v. Zobeida Valera, third-party defendant-respondent. (2011)

In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Nelson, J.), dated March 11, 2010, as granted the motion of the defendant third-party plaintiff, and that branch of the cross motion of the third-party defendant, which were for summary judgment dismissing the complaint on the ground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and denied, as academic, their motion for summary judgment on the issue of liability against the defendant third-party plaintiff.

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

Contrary to the plaintiffs' assertion, the defendant third-party plaintiff and the third-party defendant met their prima facie burdens of showing on their respective motion and cross motion that the plaintiffs 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).   In opposition, the plaintiffs failed to raise a triable issue of fact.

 The plaintiffs failed to raise a triable issue of fact as to whether either one of them sustained a serious injury under the permanent loss, the permanent consequential limitation of use, or the significant limitation of use categories of Insurance Law § 5102(d), since they failed to set forth any objective medical findings from a recent examination (see Rovelo v. Volcy, 83 A.D.3d 1034, 921 N.Y.S.2d 322;  Jean v. Labin–Natochenny, 77 A.D.3d 623, 909 N.Y.S.2d 103;  Clarke v. Delacruz, 73 A.D.3d 965, 900 N.Y.S.2d 669;  Kin Chong Ku v. Baldwin–Bell, 61 A.D.3d 938, 880 N.Y.S.2d 76;  Diaz v. Lopresti, 57 A.D.3d 832, 832–833, 870 N.Y.S.2d 408;  Soriano v. Darrell, 55 A.D.3d 900, 900–901, 865 N.Y.S.2d 574;  Mejia v. DeRose, 35 A.D.3d 407, 825 N.Y.S.2d 722;  Diaz v. Wiggins, 271 A.D.2d 639, 640, 707 N.Y.S.2d 870;  Kauderer v. Penta, 261 A.D.2d 365, 366, 689 N.Y.S.2d 190;  Marin v. Kakivelis, 251 A.D.2d 462, 463, 674 N.Y.S.2d 709).

 The plaintiffs further failed to raise a triable issue of fact as to whether their respective injuries prevented them from performing substantially all of their usual and customary daily activities during at least 90 of the first 180 days following the subject accident (see McLoud v. Reyes, 82 A.D.3d 848, 919 N.Y.S.2d 32;  Roman v. Fast Lane Car Serv., Inc., 46 A.D.3d 535, 846 N.Y.S.2d 613;  Sainte–Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133). The plaintiff Gabriel Valera testified at his deposition that he missed, at most, one to two days of work as a result of the accident, and the plaintiff Ani Valera testified at her deposition that she missed no time from work as a result of the accident.

The plaintiffs' remaining contention has been rendered academic in light of our determination.