Beltran v. Powow Limo, Inc.

• Decision Date: 26 September 2012
• Citation: 2012 N.Y. Slip Op. 06273,98 A.D.3d 1070,951 N.Y.S.2d 231
• Parties: Christopher BELTRAN, respondent, v. POWOW LIMO, INC., et al., appellants, et al., defendant.
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 1070
951 N.Y.S.2d 231
2012 N.Y. Slip Op. 06273

Christopher BELTRAN, respondent,
v.
POWOW LIMO, INC., et al., appellants, et al., defendant.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 26, 2012.

Baker, McEvoy, Morrissey & Moskovitz, P.C., New York, N.Y. (Stacy R. Seldin of counsel), for appellants.

Friedman & Moses, LLP, New York, N.Y. (I. Bryce Moses of counsel), for respondent.

MARK C. DILLON, J.P., RUTH C. BALKIN, ARIEL E. BELEN, and LEONARD B. AUSTIN, JJ.

[98 A.D.3d 1070]In an action to recover damages for personal injuries, the defendants Powow Limo, Inc., and Walter Alberto Svauijana appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated July 28, 2011, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs payable by the plaintiff, and the motion by the defendants Powow Limo, Inc., and Walter Alberto Svauijana for summary judgment dismissing the complaint insofar as asserted against them is granted.

In support of their motion for summary judgment dismissing the complaint insofar as asserted against them, the defendants Powow Limo, Inc., and Walter

[951 N.Y.S.2d 232]

Alberto Svauijana (hereinafter together the moving defendants), met their prima facie burden [98 A.D.3d 1071]of establishing that the 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 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The moving defendants made a prima facie showing, through the affirmed reports of their examining neurologist and radiologist, that the injuries the plaintiff allegedly sustained to the cervical and lumbar regions of his spine did not constitute a serious injury under the permanent consequential limitation of use and/or the significant limitation of use categories of Insurance Law § 5102 (d) and were not causally related to the subject accident ( see Bamundo v. Fiero, 88 A.D.3d 831, 931 N.Y.S.2d 239;Jilani v. Palmer, 83 A.D.3d 786, 920 N.Y.S.2d 424;Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180). The defendants also demonstrated, prima...