MALIK v. TURCIOS (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Jack L. Libert, J.), dated April 30, 2020.  The order granted the defendants’ motion for summary judgment dismissing the complaint 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.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained in a motor vehicle accident that occurred on July 24, 2017.  The defendants moved for summary judgment dismissing the complaint 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.  The Supreme Court granted the motion, and the plaintiff appeals.

The defendants met their 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 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 shoulder did not constitute a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180).  Furthermore, the defendants’ medical evidence also established, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine were not caused by the accident (see Wettstein v. Tucker, 178 A.D.3d 1121, 1122, 112 N.Y.S.3d 557;  Santiago v. Riccelli Enters., Inc., 173 A.D.3d 1237, 1238, 101 N.Y.S.3d 608;  see also Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424).  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 Wettstein v. Tucker, 178 A.D.3d at 1121, 112 N.Y.S.3d 557;  John v. Linden, 124 A.D.3d 598, 599, 1 N.Y.S.3d 274;  Marin v. Ieni, 108 A.D.3d 656, 657, 969 N.Y.S.2d 165).  In opposition, the plaintiff failed to raise a triable issue of fact (see Wettstein v. Tucker, 178 A.D.3d at 1121, 112 N.Y.S.3d 557).

The plaintiff's remaining contentions are without merit.

Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint.

CONNOLLY, J.P., WOOTEN, ZAYAS and WAN, JJ., concur.