Bonilla v. Locicero

• Decision Date: 20 September 2011
• Citation: 87 A.D.3d 1047,929 N.Y.S.2d 754,2011 N.Y. Slip Op. 06545
• Parties: Jessica BONILLA, respondent,v.Benjamin LOCICERO, Jr., et al., appellants.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 1047

929 N.Y.S.2d 754

2011 N.Y. Slip Op. 06545

Jessica BONILLA, respondent,

v.Benjamin LOCICERO, Jr., et al., appellants.

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

Sept. 20, 2011.

OPINION TEXT STARTS HERERichard T. Lau, Jericho, N.Y. (Linda Meisler of counsel), for appellants.Siben & Siben, LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated December 2, 2010, which denied their motion for summary judgment 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, and the defendants' motion for summary judgment dismissing the complaint is granted.

The defendants met their prima facie burden 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 plaintiff alleged that, as a result of the subject accident, she sustained certain injuries to the cervical and thoracolumbar regions of her spine, and her left hip. However, the defendants submitted competent medical evidence establishing, prima facie, that none of those alleged injuries constituted a serious injury within the meaning of Insurance Law § 5102(d) ( see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180; Rodriguez v. Huerfano, 46 A.D.3d 794, 795, 849 N.Y.S.2d 275). Furthermore, while the plaintiff also alleged that she sustained a serious injury under the 90/180–day category of Insurance Law § 5102(d), the defendants submitted evidence establishing, prima facie, that during the 180–day period immediately following the subject accident, the plaintiff did not have an injury or impairment which, for more than 90 days, prevented her from performing substantially all of the acts that constituted her usual and customary daily activities ( cf. Kin Chong Ku v. Baldwin–Bell, 61 A.D.3d 938, 939, 880 N.Y.S.2d 76).

In opposition, the plaintiff failed to provide a reasonable explanation for a cessation of her medical treatment ( see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278) and failed to raise a...