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Muzashvili v. Vicente

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


February 3, 2009

GONCHA MUZASHVILI, APPELLANT,
v.
SOLIS F. VICENTE, ET AL., RESPONDENTS.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Balter, J.), dated August 20, 2007, which granted that branch of the motion of the defendant Alla Kats-Kagan which was for summary judgment dismissing the complaint insofar as asserted against her on the grounds of no liability and that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and granted the separate motion of the defendants Solis F. Vicente and Oliva Garcia which was 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).

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.

STEVEN W. FISHER, J.P., HOWARD MILLER, EDWARD D. CARNI & RUTH C. BALKIN, JJ.

(Index No. 6378/04)

DECISION & ORDER

ORDERED that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The defendants 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; Gaddy v Eyler, 79 NY2d 955). In opposition, the plaintiff failed to raise a triable issue of fact (see McRae v Alauddin, 51 AD3d 987). Accordingly, the Supreme Court properly granted that branch of the motion of the defendant Kats-Kagan which was for summary judgment dismissing the complaint insofar as asserted against her, and the separate motion of the defendants Vicente and Garcia, which was 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).

In light of our determination, we need not address the plaintiff's contention that the defendant Kats-Kagan should not have been awarded summary judgment on the additional ground that she was not liable, as a matter of law, for the happening of the subject accident.

FISHER, J.P., MILLER, CARNI and BALKIN, JJ., concur.

20090203

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