Smith v Roberts

Smith v Roberts 2015 NY Slip Op 06480 Decided on August 11, 2015 Appellate Division, First Department 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.

Decided on August 11, 2015
Mazzarelli, J.P., Friedman, Richter, Manzanet-Daniels, Gische, JJ.
15593 305191/11

[*1] Joseph Smith, Plaintiff-Appellant,

v

Craig Roberts, et al., Defendants-Respondents.

Law Office of Arnold Treco, Jr. PLLC, Bronx (Arnold Treco Jr. of counsel), for appellant.

Law Offices of John Trop, Yonkers (David Holmes of counsel), for Craig Roberts, respondent.

Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Robert D. Grace of counsel), for Mamadou Barry, respondent.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered April 9, 2014, which, in an action for personal injuries sustained in a motor vehicle accident, granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants established their entitlement to judgment as a matter of law by submitting evidence showing that plaintiff did not sustain a serious injury to his spine and right knee (Insurance Law 5102[d]).

In opposition, plaintiff failed to offer evidence of permanent consequential limitations in his knee or spine.

Defendants met their burden on the 90/180-day category via plaintiff's testimony that he missed three days of work following the accident (see Williams v Baldor Specialty Foods, Inc., 70 AD3d 522 [1st Dept 2010]). That plaintiff subsequently missed approximately a year of work following surgery that was conducted several months after the accident is not determinative of a 90/180-day injury (see Nicholas v Cablevision Sys. Corp., 116 AD3d 567, 568 [1st Dept 2014]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: AUGUST 11, 2015

CLERK