Kuperberg v. Montalbano
| Citation | 899 N.Y.S.2d 344,72 A.D.3d 903 |
| Parties | Maureen KUPERBERG, respondent, v. Joan MONTALBANO, appellant. |
| Decision Date | 20 April 2010 |
| Court | New York Supreme Court — Appellate Division |
Eisenberg & Kirsch, Liberty, N.Y. (Michael D. Wolff of counsel), for appellant.
Wingate, Russotti & Shapiro, LLP, New York, N.Y. (David M. Schwarz of counsel), for respondent.
FRED T. SANTUCCI, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Mahon, J.), entered August 14, 2009, which granted the plaintiff's motion for summary judgment on the issue of liability and denied her cross 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, the defendant's cross motion for summary judgment dismissing the complaint is granted, and the plaintiff's motion for summary judgment is denied as academic.
On November 12, 2007, a motor vehicle being operated by the defendant made contact with the plaintiff, a pedestrian, in the parking lot of a shopping center in Bayshore. After receiving treatment at the emergency room of Franklin Hospital later on the day of the occurrence, the plaintiff did not receive any additionaltreatment for her alleged injuries, until January 22, 2008, 71 days later, when she was treated by Timothy Reish, an orthopedist. On or about April 2008, the plaintiff commenced the present action, alleging that, as a result of the contact with the defendant's motor vehicle, she sustained a torn rotator cuff in her right shoulder.
After joinder of issue, the plaintiff moved for summary judgment on the issue of liability, and the defendant cross-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 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; Rivera v. Bushwick Ridgewood Props., Inc., 63 A.D.3d 712, 880 N.Y.S.2d 149). The defendant's evidence, which included, inter alia, an X-ray report prepared in the emergency room on the day of the occurrence and a magnetic resonance imaging (hereinafter MRI) report prepared by the plaintiff's own radiologist with regard to an MRI of the plaintiff's right shoulder...
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