Jack v. Acapulco Car Serv., Inc.

• Decision Date: 06 April 2010
• Citation: 897 N.Y.S.2d 648,72 A.D.3d 646
• Parties: Chorinne JACK, respondent, v. ACAPULCO CAR SERVICE, INC., et al., defendants, Leader Limousine Corp., appellant.
• Court: New York Supreme Court — Appellate Division

897 N.Y.S.2d 648 72 A.D.3d 646 Chorinne JACK, respondent, v. ACAPULCO CAR SERVICE, INC., et al., defendants, Leader Limousine Corp., appellant. Supreme Court, Appellate Division, Second Department, New York. April 6, 2010.

Jonathan D'Agostino & Associates, P.C., Staten Island, N.Y. (Glen Devora of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant Leader Limousine Corp. appeals, as limited by its brief, from so much an order of the Supreme Court, Kings County (Schack, J.), dated March 23, 2009, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it 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, and the motion of the defendant Leader Limousine Corp. for summary judgment dismissing the complaint insofar as asserted against it on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is granted.

The appellant met its 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). In opposition, the plaintiff failed to raise a triable issue of fact.

While Dr. Steven Apicerno, the plaintiff's treating chiropractor, noted significant limitations in the range of motion of the cervical region of the plaintiff's spine in his affidavit based on a recent examination, neither he nor the plaintiff offered competent medical evidence of the existence of significant limitations in that region of the spine that were contemporaneous with the subject accident ( see Bleszcz v. Hiscock, 69 A.D.3d 890, 894 N.Y.S.2d 481; Taylor v. Flaherty, 65 A.D.3d 1328, 887 N.Y.S.2d 144;Fung v. Uddin, 60 A.D.3d 992, 876 N.Y.S.2d 469; Gould v. Ombrellino, 57 A.D.3d 608, 869 N.Y.S.2d 567; Kuchero v. Tabachnikov, 54 A.D.3d 729, 864 N.Y.S.2d 459; Ferraro v. Ridge Car Serv., 49 A.D.3d 498, 854 N.Y.S.2d 408). Thus, the plaintiff did not raise a triable issue of fact as to whether she sustained a serious injury under the permanent loss of use, the permanent consequential limitation of use, or the significant limitation of use categories of Insurance Law § 5102(d) ( see ...