Bocci v. Turkowitz

• Decision Date: 23 November 1998
• Citation: 680 N.Y.S.2d 637,255 A.D.2d 476
• Parties: 1998 N.Y. Slip Op. 10,421 Carmen Elizabeth BOCCI, Respondent, v. Maria TURKOWITZ, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 637

680 N.Y.S.2d 637

1998 N.Y. Slip Op. 10,421

Carmen Elizabeth BOCCI, Respondent, v. Maria TURKOWITZ, et al., Appellants.

Supreme Court, Appellate Division, Second Department.

Nov. 23, 1998.

Schwartz and Andrews (Montfort, Healy, McGuire & Salley, Garden City, N.Y. [Edward R. Rimmels and E. Richard Rimmels, Jr.] of counsel), for appellants.

Schneider, Harris & Harris, Woodmere, N.Y. (Lisa Levinson and Gary Port of counsel), for respondent.

MANGANO, P.J., JOY, FRIEDMANN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (DiNoto, J.), dated November 12, 1997, which denied their motion for summary dismissing the complaint 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, on the law, with costs, the motion is granted, and the complaint is dismissed.

In support of their motion for summary judgment, the defendants submitted evidence in admissible form that the plaintiff's claimed injury of a disc bulge, which may constitute a serious injury within the meaning of Insurance Law § 5102(d) (see, Flanagan v. Hoeg, 212 A.D.2d 756, 624 N.Y.S.2d 853), was not caused by the subject motor vehicle accident. After the defendants' showing, it was incumbent on the plaintiff to raise an issue of fact. The plaintiff's submissions failed to demonstrate that the subject motor vehicle accident was a proximate cause of the claimed disc injury. The defendants were therefore entitled to summary judgment dismissing the complaint (see, Cacaccio v. Martin, 235 A.D.2d 384, 652 N.Y.S.2d 74; Waaland v. Weiss, 228 A.D.2d 435, 643 N.Y.S.2d 635).