MERCURIO v. BACCI

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

Jo-Anne MERCURIO, etc., et al., appellants, v. Richard P. BACCI, respondent.

Decided: February 28, 2005

ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, STEPHEN G. CRANE, REINALDO E. RIVERA, and STEVEN W. FISHER, JJ. Grogan & Souto, P.C., Goshen, N.Y. (Edward P. Souto of counsel), for appellants. Keane & Beane, P.C., White Plains, N.Y. (James W. Borkowski of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated December 23, 2003, as granted the defendant's cross motion for summary judgment dismissing the complaint on the ground that the plaintiff Anna Mercurio did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant established a prima facie case through the submission of the deposition testimony of the plaintiff Anna Mercurio and her medical records which showed that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Hodges v. Jones, 238 A.D.2d 962, 661 N.Y.S.2d 159).   The plaintiffs' submissions failed to raise a triable issue of fact as to the existence of a serious injury.

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