Supreme Court, Appellate Division, Second Department, New York.
Jeff SYLVAIN, et al., appellants, v. Gerhard MAURER, respondent.
Decided: October 24, 2018
MARK C. DILLON, J.P., SANDRA L. SGROI, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellants. Kelly, Rode & Kelly, LLP, Mineola, N.Y. (Eric P. Tosca of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Daniel Palmieri, J.), entered August 16, 2016. The order, insofar as appealed from, granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
This action arises from a motor vehicle accident that occurred on July 28, 2013. The plaintiffs, Jeff Sylvain and Kahneta Williams–Grant (hereinafter Williams), commenced this action to recover damages for personal injuries they each allegedly sustained in the accident. The defendant moved for summary judgment dismissing the complaint on the ground that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. The Supreme Court, among other things, granted the defendant's motion, and the plaintiffs appeal.
On appeal, the plaintiffs do not raise any arguments relating to the Supreme Court's determination that the defendant met his prima facie burden of showing that each 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, 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; see also DiLernia v. Khan, 62 A.D.3d 644, 645, 878 N.Y.S.2d 405).
In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs failed to submit competent medical evidence showing that Sylvain sustained a serious injury to the cervical and lumbar regions of his spine under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) (cf. Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424). In addition, the plaintiffs' experts failed to address the findings of the defendant's radiologist that the alleged injuries to the cervical and lumbar regions of the spine of both plaintiffs were degenerative in nature (see John v. Linden, 124 A.D.3d 598, 599, 1 N.Y.S.3d 274; Irizarry v. Lindor, 110 A.D.3d 846, 848, 973 N.Y.S.2d 296). Further, the plaintiffs failed to raise a triable issue of fact as to whether Williams sustained a serious injury to her left knee within the meaning of Insurance Law § 5102(d) (see Il Chung Lim v. Chrabaszcz, 95 A.D.3d 950, 951, 944 N.Y.S.2d 236; McLoud v. Reyes, 82 A.D.3d 848, 849, 919 N.Y.S.2d 32). Finally, the plaintiffs failed to raise a triable issue of fact as to whether the alleged injury to Sylvain's right knee constituted a serious injury under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) (see Estrella v. Geico Ins. Co., 102 A.D.3d 730, 731, 959 N.Y.S.2d 210; Griffiths v. Munoz, 98 A.D.3d 997, 998, 950 N.Y.S.2d 787; Lively v. Fernandez, 85 A.D.3d 981, 982, 925 N.Y.S.2d 650).
Accordingly, we agree with the Supreme Court's determination to grant the defendant's motion for summary judgment dismissing the complaint.
DILLON, J.P., SGROI, HINDS–RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.
Was this helpful?
Response sent, thank you
Welcome to FindLaw's Cases & Codes
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.