Brite v. Miller

• Decision Date: 08 March 2011
• Citation: 918 N.Y.S.2d 349,82 A.D.3d 811
• Parties: Elizabeth T. BRITE, appellant, v. Kimberly Ann MILLER, respondent.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 349 82 A.D.3d 811 Elizabeth T. BRITE, appellant, v. Kimberly Ann MILLER, respondent. Supreme Court, Appellate Division, Second Department, New York. March 8, 2011.

Helen F. Dalton & Associates, P.C., Forest Hills, N.Y. (Natia Shalolashvili of counsel), for appellant.

Mendolia & Stenz (Montfort, Healy, McGuire & Salley, Garden City, N.Y. [Donald S. Neumann, Jr.], of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Rosengarten, J.), dated March 1, 2010, which granted the defendant's 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 affirmed, with costs.

The defendant moved 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). The defendant met her prima facie burden of demonstrating her entitlement to judgment as a matter of law by showing, through the affirmed reports of her medical experts, that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle 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 admissible evidence which the plaintiff presented in opposition to the defendant's motion did not raise a triable issue of fact ( see CPLR 3212 [b]; Grasso v. Angerami, 79 N.Y.2d 813, 814-815, 580 N.Y.S.2d 178, 588 N.E.2d 76; Vilomar v. Castillo, 73 A.D.3d 758, 759, 901 N.Y.S.2d 651; Pagano v. Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692). The plaintiff presented no competent, objective medical evidence of any limitations of motion associated with any of the plaintiff's pleaded injuries contemporaneous with the accident ( see Srebnick v. Quinn, 75 A.D.3d 637, 904 N.Y.S.2d 675). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

MASTRO, J.P., ANGIOLILLO, BALKIN, LOTT and MILLER, JJ., concur.