Keegan v. Tzemis

125 A.D.3d 607, 999 N.Y.S.2d 750

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 2015
• Docket: 2014-03877
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Asher, J.), entered February 13, 2014, which granted the motion of the defendants Sophia E. Tzemis and Evagoras Retsas, and the separate motion of the defendant Craig Linder, for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiff Sylvia Keegan did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident.

Ordered that the order is affirmed, with one bill of costs payable to the defendants Sophia E. Tzemis and Evagoras Retsas.

The defendants, moving separately but relying on the same evidence and arguments, met their prima facie burdens of showing that the plaintiff Sylvia Keegan 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 defendants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical region of Sylvia Keegan’s spine and to her right shoulder 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 generally Toure v Avis Rent A Car Sys., 98 NY2d at 350-351).

The plaintiffs failed to raise a triable issue of fact in opposition. Therefore, the Supreme Court properly granted the defendants’ separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.

Skelos, J.R, Sgroi, Maltese and Duffy, JJ., concur.