Carlisle v. Garcia

186 A.D.3d 1603

129 N.Y.S.3d 830 (Mem)

Jay C. CARLISLE II, Appellant,

v.Roan Micalea GARCIA, Respondent.

2018–14823

Index No. 63787/17

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

Argued—June 15, 2020

September 30, 2020

The Greenberg Law Firm, LLP, Purchase, N.Y. (Rebecca Greenberg of counsel), for appellant.

Jennifer S. Adams, Yonkers, N.Y. (Raychel Camilleri of counsel), for respondent.

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (David F. Everett, J.), dated November 28, 2018. The order granted the defendant's motion for summary judgment dismissing the complaint 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 affirmed, with costs.

On April 6, 2017, the plaintiff, a pedestrian, was struck by a vehicle operated by the defendant. The defendant moved for summary judgment dismissing the complaint 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. The Supreme Court granted the motion, and the plaintiff appeals.

The defendant met his 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 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 ). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injury to the plaintiff's left foot 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 A.D.3d 614, 874 N.Y.S.2d 180 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Fiorillo v. Arriaza, 52 A.D.3d 465, 466, 859 N.Y.S.2d 699 ; see generally Toure v. Avis Rent A Car Sys., 98 N.Y.2d at 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ).

Accordingly, we agree with the Supreme Court's determination granting the defendant's motion for summary judgment dismissing the complaint.

BALKIN, J.P., LEVENTHAL, MALTESE and BRATHWAITE NELSON, JJ., concur.