Rodriguez v Zabala

Rodriguez v Zabala 2012 NY Slip Op 08714 Decided on December 19, 2012 Appellate Division, Second 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 December 19, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
THOMAS A. DICKERSON
JOHN M. LEVENTHAL
PLUMMER E. LOTT, JJ.
2011-09957
2011-09960
(Index No. 22855/09)

[*1]Marisol Rodriguez, et al., appellants,

v

Josue Zabala, respondent.




James M. Visser, Bronx, N.Y., for appellants.
Adams, Hanson, Rego, Carlin, Hughes, Kaplan & Fishbein,
Lake Success, N.Y. (Jacqueline Doody
of counsel), for respondent.


DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Queens County (Taylor, J.), dated October 5, 2011, as granted that branch of the defendant's motion which was for summary judgment dismissing the causes of action to recover damages for personal injuries on the ground that the plaintiff Marisol Rodriguez did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, and denied their cross motion, inter alia, for summary judgment on the issue of serious injury, and (2) from an order of the same court, also dated October 5, 2011.

ORDERED that the appeal from the second order dated October 5, 2011, is dismissed as abandoned; and it is further,

ORDERED that the first order dated October 5, 2011, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The defendant met his prima facie burden of showing that the plaintiff Marisol Rodriguez 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, 956-957). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff Marisol Rodriguez's spine did not constitute serious injuries within the meaning of Insurance Law § 5102(d) (see Moran v Kollar, 96 AD3d 811; Ramkalawon v Correa, 95 AD3d 982; Rodriguez v Huerfano, 46 AD3d 794, 795).

In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the causes of action to recover damages for personal injuries. [*2]

The appeal from the second order dated October 5, 2011, must be dismissed as abandoned (see Sirma v Beach, 59 AD3d 611, 614), as the plaintiffs do not seek reversal of that order in their brief.

The plaintiffs' remaining contentions are without merit.
RIVERA, J.P., DICKERSON, LEVENTHAL and LOTT, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court