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Abbott-Barish v. Ahmad

Supreme Court of New York, Second Department

June 26, 2013

Nina Abbott-Barish, respondent,
v.
Aziz Ahmad, et al., appellants, et al., defendant. Index No. 14492/10

Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn, N.Y. (Robert D. Grace of counsel), for appellants.

Schwartz Goldstone & Campisi, LLP, New York, N.Y. (Tara M. Kennedy of counsel), for respondent.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, PLUMMER E. LOTT, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Aziz Ahmad and Mohammed Zioual appeal from an order of the Supreme Court, Kings County (Bayne, J.), dated June 15, 2012, which 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) as a result of the subject accident.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Aziz Ahmad and Mohammed Zioual for summary judgment dismissing the complaint insofar as asserted against them is granted.

The appellants 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 N.Y.2d 345; Gaddy v Eyler, 79 N.Y.2d 955, 956-957). The appellants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine were not caused by the subject accident (see Jilani v Palmer, 83 A.D.3d 786, 787), and that the alleged injuries to the cervical, lumbar, and thoracic regions of her spine 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 Staff v Yshua, 59 A.D.3d 614). Moreover, the appellants submitted evidence establishing, prima facie, that the plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law § 5102(d) (see Richards v Tyson, 64 A.D.3d 760, 761). The plaintiff failed to raise a triable issue of fact in opposition.

Therefore, the Supreme Court should have granted the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.

RIVERA, J.P., DICKERSON, LEVENTHAL and LOTT, JJ., concur.


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