Hayes v. Vasilios

• Decision Date: 27 June 2012
• Parties: Deborah HAYES, appellant, v. Tatsios VASILIOS, et al., respondents (And a third-party action).
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 1010
947 N.Y.S.2d 550
2012 N.Y. Slip Op. 05143

Deborah HAYES, appellant,
v.
Tatsios VASILIOS, et al., respondents
(And a third-party action).

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

June 27, 2012.

[947 N.Y.S.2d 551]

Harold Solomon, Rockville Centre, N.Y., for appellant.

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

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.

[96 A.D.3d 1010]In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Taylor, J.), dated August 10, 2011, as, upon renewal, in effect, vacated its prior order dated May 19, 2011, which denied the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, and thereupon granted the defendants' motion.

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

We agree with the Supreme Court's determination, upon renewal[96 A.D.3d 1011], that the defendants met their prima facie burden of showing 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), albeit for different reasons. The plaintiff alleged that she suffered, inter alia, injuries to the cervical, thoracic, and lumbar regions of her spine as a result of the accident. Contrary to the plaintiff's contention, and the Supreme Court's finding, the report from the defendants' examining neurologist, Dr. Maria DeJesus, was sufficient to satisfy the defendants' prima facie burden as to the alleged injuries to the regions, even though Dr. DeJesus did not review the plaintiff's medical records, since she performed objective tests showing full range-of-motion in the regions of the plaintiff's

[947 N.Y.S.2d 552]

spine ( see e.g. DeJesus v. Paulino, 61 A.D.3d 605, 607, 878 N.Y.S.2d 29;see also 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).

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff relied on the...