ALEXANDER v. FELAGO

Reset A A Font size: Print

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

Korinn ALEXANDER, etc., et al., Respondents, v. Rozine C. FELAGO, Appellant, et al., Defendants.

Decided: September 30, 2002

FRED T. SANTUCCI, J.P., NANCY E. SMITH, GABRIEL M. KRAUSMAN, HOWARD MILLER and THOMAS A. ADAMS, JJ. Molod, Spitz, DeSantis & Stark, P.C., New York, N.Y. (Marcy Sonneborn and Frederick M. Molod of counsel), for appellant. Anthony J. Scarcella, White Plains, N.Y. (M. Sean Duffy of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant Rozine C. Felago appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Murphy, J.), entered February 28, 2002, as denied that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against her on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the appellant by the plaintiff Vanessa Riddick, and substituting therefor a provision granting that branch of the motion, and (2), upon searching the record, by adding a provision thereto granting that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Ernest Felago by the plaintiff Vanessa Riddick;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the complaint is dismissed insofar as asserted by that plaintiff.

 The appellant established a prima facie case that the plaintiff Vanessa Riddick did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of an automobile accident on December 31, 1997.   The appellant presented evidence that Riddick sustained her claimed present injuries in a prior automobile accident in August 1996, and that she sustained only an exacerbation of preexisting cervical and lumbar strain as a result of the instant accident (see Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Castaldo v. Migliore, 291 A.D.2d 526, 737 N.Y.S.2d 862;  Puccio v. Pazienza, 289 A.D.2d 316, 734 N.Y.S.2d 100;  Watt v. Eastern Investigative Bur., 273 A.D.2d 226, 708 N.Y.S.2d 472).   In opposition to the motion for summary judgment, Riddick submitted an affidavit and medical report from her treating chiropractor.   The chiropractor stated that Riddick suffered from quantified restrictions of motion in her cervical and lumbar spines based upon two examinations conducted after the subject accident.   Riddick's submissions failed to raise a triable issue of fact that the subject automobile accident was a proximate cause of the alleged injuries (see Finkelshteyn v. Harris, 280 A.D.2d 579, 721 N.Y.S.2d 90;  Kaplan v. Cartusciello, 253 A.D.2d 452, 675 N.Y.S.2d 314;  Khodadadian v. Wolff, 242 A.D.2d 681, 664 N.Y.S.2d 950;  Cacaccio v. Martin, 235 A.D.2d 384, 652 N.Y.S.2d 74;  Waaland v. Weiss, 228 A.D.2d 435, 643 N.Y.S.2d 635).   Accordingly, the appellant's motion for summary judgment dismissing the complaint insofar as asserted by Vanessa Riddick should have been granted.

Furthermore, since Vanessa Riddick failed to demonstrate that she sustained a serious injury, we search the record and grant that branch of the defendants' motion which was for summary judgment dismissing so much of the complaint as is asserted by that plaintiff against the defendant Ernest Felago, and dismiss that portion of the complaint insofar as asserted against him, notwithstanding his failure to appeal (see Dinkle v. Lagala, 246 A.D.2d 624, 667 N.Y.S.2d 309).

 However, in support of the motion for summary judgment dismissing the complaint to the extent that it is asserted by Korinn Alexander, the appellant failed to establish her prima facie entitlement to judgment as a matter of law on the ground that Korinn Alexander did not sustain a serious injury within the meaning of Insurance Law § 5102(d).  The affidavit of the appellant's examining orthopedist quantified the range of motion in Alexander's spine without explaining the significance of his findings (see Junco v. Ranzi, 288 A.D.2d 440, 733 N.Y.S.2d 897).   Thus, we need not consider whether Alexander's opposition to the motion was sufficient to raise a triable issue of fact (see Chaplin v. Taylor, 273 A.D.2d 188, 708 N.Y.S.2d 465).

Copied to clipboard