

Santucci v Sousa (2015 NY Slip Op 06799)





Santucci v Sousa


2015 NY Slip Op 06799


Decided on September 16, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on September 16, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

JOHN M. LEVENTHAL, J.P.
THOMAS A. DICKERSON
SHERI S. ROMAN
SYLVIA O. HINDS-RADIX, JJ.


2013-07467
 (Index No. 12164/10)

[*1]Michael Santucci, respondent, 
vJeffrey Sousa, et al., appellants, et al., defendant.


Morris Duffy Alonso & Faley, New York, N.Y. (Arjay G. Yao of counsel), for appellants.
Creedon & Gill, P.C., Northport, N.Y. (Peter J. Creedon of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Jeffrey Sousa and D & V Concrete, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.), dated May 30, 2013, as denied their motion for summary judgment dismissing the complaint 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) as a result of the subject accident.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendants Jeffrey Sousa and D & V Concrete, Inc., for summary judgment dismissing the complaint insofar as asserted against them is granted.
The appellants 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., 98 NY2d 345, 352; Gaddy v Eyler, 79 NY2d 955, 956-957). The appellants submitted competent medical evidence establishing, prima facie, that the alleged injury to the lumbar region of the plaintiff's spine did not constitute a serious injury under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v Yshua, 59 AD3d 614), and that the alleged injuries to the cervical and thoracic regions of the plaintiff's spine were not caused by the subject accident (see generally Jilani v Palmer, 83 AD3d 786, 787). The appellants further submitted evidence demonstrating, prima facie, that the plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law § 5102(d) as a result of the subject accident (see Karpinos v Cora, 89 AD3d 994, 995).
The plaintiff failed to raise a triable issue of fact in opposition. Therefore, the Supreme Court should have granted the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.
LEVENTHAL, J.P., DICKERSON, ROMAN and HINDS-RADIX, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


