

Cruz v Ava Serv. Corp. (2016 NY Slip Op 08837)





Cruz v Ava Serv. Corp.


2016 NY Slip Op 08837


Decided on December 28, 2016


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 December 28, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

JOHN M. LEVENTHAL, J.P.
JEFFREY A. COHEN
ROBERT J. MILLER
FRANCESCA E. CONNOLLY, JJ.


2014-07339
 (Index No. 29124/11)

[*1]Dawn Cruz, et al., appellants, 
vAva Service Corp., et al., respondents, et al., defendant (and third-party actions).


Mesterman Law, PLLC, New York, NY (Dan Mesterman and Lawrence Lame of counsel), for appellants.
Baker, McEvoy, Morrissey & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, NY, of counsel), for respondents.

DECISION & ORDER
In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Taylor, J.), dated May 6, 2014, as granted that branch of the motion of the defendants Ava Service Corp. and Ramon M. Flores which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Dawn Cruz on the ground that she 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 affirmed insofar as appealed from, with costs.
The defendants Ava Service Corp. and Ramon M. Flores (hereinafter together the moving defendants) met their prima facie burden of showing that the plaintiff Dawn Cruz 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; Gaddy v Eyler, 79 NY2d 955, 956-957). The moving defendants submitted competent medical evidence establishing, prima facie, that the alleged injury to the plaintiff Dawn Cruz's left knee did not constitute a serious injury under either 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, in any event, the alleged injury was not caused by the subject accident (see generally Jilani v Palmer, 83 AD3d 786, 787). In opposition, the plaintiffs failed to raise a triable issue of fact.
The plaintiffs' contentions on appeal with respect to Dawn Cruz's lumbar spine and left shoulder were not raised before the Supreme Court and, thus, are not properly before this Court.
Accordingly, the Supreme Court properly granted that branch of the moving defendants' motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Dawn Cruz.
LEVENTHAL, J.P., COHEN, MILLER and CONNOLLY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


