SCALA v. BENITEZ (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered September 2, 2020, and (2) a judgment of the same court dated October 6, 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.  The judgment, upon the order, is in favor of the defendants and against the plaintiff dismissing the complaint.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).  The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

The plaintiff commenced this action to recover damages for personal injuries that she alleged she 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 subject accident.  In an order entered September 2, 2020, the Supreme Court granted the motion.  Thereafter, a judgment was entered upon the order, in favor of the defendants and against the plaintiff dismissing the complaint.  The plaintiff appeals.

Contrary to the plaintiff's contention, 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 subject 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 and the cervical region of her spine did not constitute serious injuries 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).  In addition, the defendants 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 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 1122, 112 N.Y.S.3d 557).

The parties’ remaining contentions need not be reached in light of our determination.

DUFFY, J.P., MALTESE, DOWLING and WARHIT, JJ., concur.