HERNANDEZ v. Simeon Galvez, Defendant-Respondent.

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Supreme Court, Appellate Division, Second Department, New York.

Maria HERNANDEZ, Plaintiff-Respondent, v. Susan E. LINHART, et al., Appellants, Simeon Galvez, Defendant-Respondent.

Decided: January 28, 2002

DAVID S. RITTER, Acting P.J., SANDRA J. FEUERSTEIN, GLORIA GOLDSTEIN, WILLIAM D. FRIEDMANN and STEPHEN G. CRANE, JJ. Robert P. Tusa, Garden City, N.Y. (David Holmes of counsel), for appellants. McCormack & McCormack, Garden City, N.Y. (Marie F. McCormack of counsel), for plaintiff-respondent.

In an action to recover damages for personal injuries, the defendants Susan E. Linhart and Lisa B. Linhart appeal from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), entered January 30, 2001, as denied their cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, the cross motion is granted, and the complaint and all cross claims are dismissed insofar as asserted against the appellants;  and it is further,

ORDERED that upon searching the record, the motion of the defendant Simeon Galvez for summary judgment dismissing the complaint and all cross claims insofar as asserted against him is granted, and the complaint and all cross claims are dismissed insofar as asserted against him;  and it is further,

ORDERED that the appellants are awarded one bill of costs payable by the plaintiff-respondent.

The appellants established a prima facie case that the plaintiff's injuries were not serious through the affirmed reports of an orthopedist and a neurologist, both of whom examined the plaintiff and found no evidence of disability (see, Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).

In opposition, the plaintiff failed to raise a triable issue of fact.   Her medical experts failed to submit quantitative objective findings and relied on unsworn reports of other medical providers (see, Grossman v. Wright, 268 A.D.2d 79, 85, 707 N.Y.S.2d 233).

Therefore, the Supreme Court should have granted the appellants' motion for summary judgment dismissing the complaint and cross claims insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury.   Furthermore, as the plaintiff failed to demonstrate that she sustained a serious injury, we search the record to grant the motion of the defendant Simeon Galvez for summary judgment and dismiss the complaint and all cross claims insofar as asserted against him, notwithstanding his failure to appeal (see, Dinkle v. Lagala, 246 A.D.2d 624, 625, 667 N.Y.S.2d 309).

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