MERONE v. FIVE TOWNS REVIEW CORP (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Leonard D. Steinman, J.), entered December 9, 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.  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.  In an order entered December 9, 2020, the Supreme Court granted the motion.  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 lumbar region of the plaintiff's spine and her right shoulder were degenerative in nature and not caused by the accident (see Amirova v. JND Trans, Inc., 206 A.D.3d 601, 602, 167 N.Y.S.3d 410;  Gash v. Miller, 177 A.D.3d 950, 111 N.Y.S.3d 200;  Gouvea v. Lesende, 127 A.D.3d 811, 6 N.Y.S.3d 607;  Fontana v. Aamaar & Maani Karan Tr. Corp., 124 A.D.3d 579, 580, 1 N.Y.S.3d 324).

In opposition, the plaintiff failed to raise a triable issue of fact.  The plaintiff's experts failed to address the findings of the defendants' radiologist that the alleged injuries to the lumbar region of the plaintiff's spine and her right shoulder were degenerative in nature (see Amirova v. JND Trans, Inc., 206 A.D.3d at 602, 167 N.Y.S.3d 410;  McMahon v. Negron, 186 A.D.3d 593, 126 N.Y.S.3d 672;  Mnatcakanova v. Elliot, 174 A.D.3d 798, 800, 106 N.Y.S.3d 112;  Cavitolo v. Broser, 163 A.D.3d 913, 914, 81 N.Y.S.3d 188;  Franklin v. Gareyua, 136 A.D.3d 464, 465–466, 24 N.Y.S.3d 304, affd 29 N.Y.3d 925, 926, 49 N.Y.S.3d 651, 71 N.E.3d 1218).  To the extent that the bill of particulars alleged that the plaintiff sustained a serious injury under the 90/180–day category of Insurance Law § 5102(d), the plaintiff has abandoned reliance on that category by failing to address it in her brief on appeal (see Yi Di Chen v. Falikman, 186 A.D.3d 1295, 1296, 127 N.Y.S.3d 889).

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

In light of our determination, we need not address the plaintiff's remaining contention.

BRATHWAITE NELSON, J.P., MALTESE, FORD and VOUTSINAS, JJ., concur.