HARRISON v. Yan-Yee Yeung, et al., appellants.

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

Kellie M. HARRISON, et al., respondents, v. CITY OF NEW YORK, et al., defendants, Yan-Yee Yeung, et al., appellants.

Decided: December 22, 2003

DAVID S. RITTER, J.P., NANCY E. SMITH, WILLIAM D. FRIEDMANN, HOWARD MILLER, and STEPHEN G. CRANE, JJ. Hayes & Mensching (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for appellants.

In an action to recover damages for personal injuries, etc., the defendants Yan-Yee Yeung and Fung Yeung appeal from so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated May 21, 2003, as granted their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff Kellie M. Harrison did not sustain a serious injury within the meaning of Insurance Law § 5102(d) only to the extent of determining that her injuries did not prevent her from performing substantially all of the material acts which constitute her usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury, and denied that branch of their motion which was for summary judgment on the ground that the plaintiff did not sustain a serious injury of a permanent nature.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted in its entirety, the complaint is dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed.

The appellants established a prima facie case that the injuries sustained by the plaintiff Kellie M. Harrison were not serious through the affirmed medical report of a physician who examined her and concluded that she had no disability.

The physician's affirmation which the plaintiffs submitted in opposition to the motion for summary judgment diagnosed the injured plaintiff as suffering only from cervical and lumbosacral sprains, which do not rise to the level of serious injuries (see Keena v. Trappen, 294 A.D.2d 405, 742 N.Y.S.2d 344).

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