Washington v Pichardo

Washington v Pichardo 2016 NY Slip Op 04707 Decided on June 15, 2016 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 June 15, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
ROBERT J. MILLER
SYLVIA O. HINDS-RADIX
VALERIE BRATHWAITE NELSON, JJ.
2015-02921
(Index No. 25418/11)

[*1]Aundrea Washington, appellant, et al., plaintiff,

v

Kenny Pichardo, respondent.

Gratt & Associates, P.C. (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.

Richard T. Lau, Jericho, NY (Gene W. Higgins of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff Aundrea Washington appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated January 8, 2015, which granted the defendant's motion for summary judgment dismissing the complaint insofar as asserted by her 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 affirmed, with costs.

The defendant met his prima facie burden of showing that the appellant 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). He submitted competent medical evidence establishing, prima facie, that the alleged injury to the appellant's right shoulder did not constitute a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v Yshua, 59 AD3d 614). In opposition, the appellant failed to raise a triable issue of fact (see McLoud v Reyes, 82 AD3d 848, 849; Resek v Morreale, 74 AD3d 1043, 1044; Raleigh v Ram, 60 AD3d 747, 747-748).

Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint insofar as asserted by the appellant.

DILLON, J.P., MILLER, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court