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Alfonso v. Kenney

Supreme Court of New York, Second Department

June 26, 2013

Monica Alfonso, respondent, et al., plaintiff,
v.
Karen Kenney, appellant. Index No. 30380/10

Richard T. Lau, Jericho, N.Y. (Kathleen E. Fioretti of counsel), for appellant.

Sarisohn, Sarisohn, Carner, LeBow & DeVita (Lisa M.Comeau, Garden City, N.Y., of counsel), for respondent.

MARK C. DILLON, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, JEFFREY A. COHEN, JJ.

In an action to recover damages for personal injuries, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated October 19, 2012, as denied that branch of her motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Monica Alfonso on the ground that she 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 insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Monica Alfonso is granted.

The defendant met her prima facie burden of showing that the plaintiff Monica Alfonso 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 defendant submitted competent medical evidence establishing, prima facie, that the alleged injury to Alfonso's left knee was not caused by the subject accident (see Jilani v Palmer, 83 A.D.3d 786, 787), and that the alleged injuries to Alfonso's left knee and to the cervical and lumbar 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), as well as evidence establishing, prima facie, that Alfonso 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). Alfonso failed to raise a triable issue of fact in opposition.

Therefore, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint insofar as asserted by Alfonso.

DILLON, J.P., HALL, ROMAN and COHEN, JJ., concur.


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