Fernandez-Velez v O'Hara

Fernandez-Velez v O'Hara 2012 NY Slip Op 03134 Decided on April 24, 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 April 24, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
THOMAS A. DICKERSON
L. PRISCILLA HALL
SHERI S. ROMAN
JEFFREY A. COHEN, JJ.
2011-10683
(Index No. 44022/09)

[*1]Juan Fernandez-Velez, et al., respondents,

v

Kristen Joy O'Hara, et al., appellants.




Martin, Fallon & Mullé, Huntington, N.Y. (Richard C. Mullé of
counsel), for appellants.
Steven Louros, New York, N.Y., for respondents.


DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Farneti, J.), dated October 4, 2011, as denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff Juan Fernandez-Velez 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 the defendants' motion for summary judgment dismissing the complaint is granted.

The defendants met their prima facie of burden of showing that the plaintiff Juan Fernandez-Velez (hereinafter the injured 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 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants submitted evidence establishing, prima facie, that the alleged injuries to the cervical and thoracolumbar regions of the injured plaintiff's spine did not constitute serious injuries within the meaning of Insurance Law § 5102(d) (see Rodriguez v Huerfano, 46 AD3d 794, 795).

In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.
SKELOS, J.P., DICKERSON, HALL, ROMAN and COHEN, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court