Rotella v Mace

Rotella v Mace 2011 NY Slip Op 08577 Decided on November 22, 2011 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 November 22, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
ANITA R. FLORIO
RANDALL T. ENG
L. PRISCILLA HALL
JEFFREY A. COHEN, JJ.
2010-09122
(Index No. 8326/08)

[*1]Linda Rotella, et al., appellants,

v

Nicole . Mace, et al., respondents.




Vasti & Vasti, P.C., Pleasant Valley, N.Y. (Thomas F. Vasti III
of counsel), for appellants.
Kaplan, Hanson, McCarthy, Adams, Finder & Fishbein,
Albany, N.Y. (Paul G. Hanson of counsel),
for respondents.


DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Dolan, J.), dated July 27, 2010, as granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Linda Rotella did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendants met their prima facie burden of showing that the plaintiff Linda Rotella (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 plaintiffs alleged, inter alia, that as a result of the subject accident, the cervicothoracic region of the injured plaintiff's spine sustained certain injuries, and the defendants provided competent medical evidence establishing, inter alia, that those alleged injuries did not constitute a serious injury 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 properly granted the defendants' motion for summary judgment dismissing the complaint.
RIVERA, J.P., FLORIO, ENG, HALL and COHEN, JJ., concur.

ENTER: [*2]

Matthew G. Kiernan

Clerk of the Court