Judges： Chambers, Hinds, Radix, Sgroi, Skelos
Filed Date： 4/24/2013
Status： Precedential
Modified Date： 11/1/2024
Ordered that the order is affirmed, with costs.
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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiffs spine did not constitute serious injuries under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102 (d) (see Staff v Yshua, 59 AD3d 614 [2009]).
The plaintiff failed to raise a triable issue of fact in opposition. The plaintiffs argument that the defendant failed to establish that she did not sustain a serious injury under the 90/ 180-day category of Insurance Law § 5102 (d) is without merit, as the plaintiff failed to allege such an injury in her bill of particulars (see MacDonald v Meierhoffer, 13 AD3d 689 [2004]; Kenney v Amodei, 119 AD2d 1006 [1986]). In any event, the evidence submitted by the defendant established, prima facie, that the plaintiff did not sustain such an injury, and the plaintiff failed to raise a triable issue of fact in opposition (see generally Karpinos v Cora, 89 AD3d 994, 995 [2011]).
Thus, the Supreme Court properly 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).