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Bryan v. Berger

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


March 31, 2009

ELAINE BRYAN, RESPONDENT,
v.
JENNIFER BERGER, ET AL., DEFENDANTS, NEW YORK CITY TRANSIT AUTHORITY, ET AL., APPELLANTS. (AND ANOTHER ACTION)

In an action to recover damages for personal injuries, the defendants New York City Transit Authority and Donna Cody appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated March 28, 2008, as denied their motion 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.

ROBERT A. SPOLZINO, J.P., DAVID S. RITTER, JOSEPH COVELLO and ARIEL E. BELEN, JJ.

(Index No. 100339/05)

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendants New York City Transit Authority and Donna Cody for summary judgment dismissing the complaint insofar as asserted against them is granted.

The defendants New York City Transit Authority and Donna Cody met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact.

SPOLZINO, J.P., RITTER, COVELLO and BELEN, JJ., concur.

20090331

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