Dinc v. Shalesi

208 A.D.3d 558

172 N.Y.S.3d 713

Orcun DINC, appellant,

v.Jakup SHALESI, respondent, et al., defendants.

2020–08973

Index No. 516707/18

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

Argued—May 24, 2022

August 10, 2022

Koulikourdis & Associates, Bronx, NY (Peter J. Koulikourdis of counsel), for appellant.

Kevin J. Philbin, New York, NY (Sumona Sikder of counsel), for respondent.

MARK C. DILLON, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Carl J. Landicino, J.), dated September 28, 2020. The order granted the motion of the defendant Jakup Shalesi for summary judgment dismissing the complaint insofar as asserted against him 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.

The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident that occurred on March 20, 2016. The defendant Jakup Shalesi (hereinafter the defendant) moved for summary judgment dismissing the complaint insofar as asserted against him 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. In an order dated September 28, 2020, the Supreme Court granted the defendant's motion, and the plaintiff appeals.

The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Toure v. Avis Rent A Car Sys., Inc., 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 injuries to the cervical and lumbar regions of the plaintiff's spine and the plaintiff's right knee did not constitute serious injuries under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Nicholson v. Kwarteng, 180 A.D.3d 695, 696, 115 N.Y.S.3d 707 ; Radoncic v. Faulk, 170 A.D.3d 1058, 1060, 96 N.Y.S.3d 352 ). The defendant also demonstrated, prima facie, that the plaintiff did not sustain a serious injury under the 90/180–day category (see Nicholson v. Kwarteng, 180 A.D.3d at 695, 115 N.Y.S.3d 707 ; Marin v. Ieni, 108 A.D.3d 656, 657, 969 N.Y.S.2d 165 ).

In opposition, the plaintiff failed to raise a triable issue of fact. The...