Capriglione v. Rivera

Appellate Division of the Supreme Court of New York

Capriglione v. Rivera

83 A.D.3d 639, 919 N.Y.S.2d 882

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 5, 2011

StatusPublished

Cited by2 cases

This text of 83 A.D.3d 639 (Capriglione v. Rivera) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Capriglione v. Rivera, 83 A.D.3d 639, 919 N.Y.S.2d 882 (N.Y. Ct. App. 2011).

Pincite

Opinion

In an action to recover damages for personal injuries, the [640]*640plaintiff appeals (1), as limited by her notice of appeal and brief, from so much of an order of the Supreme Court, Queens County (Golia, J.), dated April 9, 2010, as granted the defendant’s 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), and (2) a judgment of the same court entered June 4, 2010, which, upon the order, is in favor of the defendant and against her 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 defendant.

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 [1976]). 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]).

Contrary to the plaintiff’s contentions, the Supreme Court correctly determined that the defendant met his 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]). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff failed to submit any affirmations or affidavits of her treating physicians, or medical records in admissible form, of any medical findings contemporaneous with the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d at 350-351; Rush v Kwan Chiu, 79 AD3d 1004, 1005 [2010]; Posa v Guerrero, 77 AD3d 898, 899 [2010]).

Since the plaintiff failed to raise a triable issue of fact in opposition, the Supreme Court properly granted the defendant’s cross motion for summary judgment dismissing the complaint. Skelos, J.P., Covello, Eng, Chambers and Sgroi, JJ., concur.

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In an action to recover damages for personal injuries, the [640]*640plaintiff appeals (1), as limited by her notice of appeal and brief, from so much of an order of the Supreme Court, Queens County (Golia, J.), dated April 9, 2010, as granted the defendant’s 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), and (2) a judgment of the same court entered June 4, 2010, which, upon the order, is in favor of the defendant and against her 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 defendant.

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 [1976]). 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]).

Contrary to the plaintiff’s contentions, the Supreme Court correctly determined that the defendant met his 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]). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff failed to submit any affirmations or affidavits of her treating physicians, or medical records in admissible form, of any medical findings contemporaneous with the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d at 350-351; Rush v Kwan Chiu, 79 AD3d 1004, 1005 [2010]; Posa v Guerrero, 77 AD3d 898, 899 [2010]).

Since the plaintiff failed to raise a triable issue of fact in opposition, the Supreme Court properly granted the defendant’s cross motion for summary judgment dismissing the complaint. Skelos, J.P., Covello, Eng, Chambers and Sgroi, JJ., concur.

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Bluebook (online)

83 A.D.3d 639, 919 N.Y.S.2d 882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/capriglione-v-rivera-nyappdiv-2011.

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