

Olivencia v Depompeis (2015 NY Slip Op 05455)





Olivencia v Depompeis


2015 NY Slip Op 05455


Decided on June 24, 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 June 24, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

PETER B. SKELOS, J.P.
THOMAS A. DICKERSON
L. PRISCILLA HALL
JOSEPH J. MALTESE, JJ.


2014-09128
 (Index No. 569/12)

[*1]Jose Olivencia, respondent,
v Steven N. Depompeis, et al., appellants.


Law Offices of Richard M. Sands, P.C., Brooklyn, N.Y., for appellants.
David J. DeToffol, New York, N.Y., for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Adler, J.), dated July 22, 2014, as denied those branches of their cross motion which were for summary judgment dismissing the causes of action alleging that the plaintiff sustained serious injuries under the permanent consequential limitation of use and significant limitation of use categories 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 those branches of the defendants' cross motion which were for summary judgment dismissing the causes of action alleging that the plaintiff sustained serious injuries under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) are granted.
The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine were not caused by the accident (see generally Jilani v Palmer, 83 AD3d 786, 787).
The plaintiff failed to raise a triable issue of fact in opposition. Therefore, the Supreme Court should have granted those branches of the defendants' cross motion which were for summary judgment dismissing the causes of action alleging that the plaintiff sustained serious injuries under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d).
SKELOS, J.P., DICKERSON, HALL and MALTESE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


