Preciado v. Garfield , 18 N.Y.S.3d 562 ( 2015 )

Preciado v Garfield (2015 NY Slip Op 07960)

Preciado v Garfield

2015 NY Slip Op 07960

Decided on November 4, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 4, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
THOMAS A. DICKERSON
JOSEPH J. MALTESE
HECTOR D. LASALLE, JJ.

2014-10115
2014-11368
(Index No. 2258/13)

[*1]Jesus Preciado, Jr., et al., appellants,

v

Adam Garfield, et al., respondents.

Melley Platania, PLLC, Rhinebeck, N.Y. (Steven M. Melley of counsel), for appellants.

Keane & Bernheimer, PLLC, Hawthorne, N.Y. (Jason M. Bernheimer of counsel), for respondents.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from (1) an order of the Supreme Court, Dutchess County (Pagones, J.), dated September 2, 2014, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Jesus Preciado, Jr., did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, and (2) a judgment of the same court entered September 15, 2014, which, upon the order, is in favor of the defendants and against them, dismissing the complaint.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

The defendants met their prima facie burden of showing that the plaintiff Jesus Preciado, Jr. (hereinafter the injured 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 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants submitted competent medical evidence establishing, prima facie, that the alleged injury to the injured plaintiff's right knee did not constitute a serious injury under the permanent consequential limitation of use or the significant limitation of use categories of Insurance Law § 5102(d) (see Staff v Yshua, 59 AD3d 614).

In opposition, the plaintiffs failed to raise a triable issue of fact (see Il Chung Lim v Chrabaszcz, 95 AD3d 950, 951; McLoud v Reyes, 82 AD3d 848, 849). Accordingly, the Supreme [*2]Court properly granted the defendants' motion for summary judgment dismissing the complaint.

RIVERA, J.P., DICKERSON, MALTESE and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court