Mandell v. Leskiewicz

170 A.D.2d 653, 567 N.Y.S.2d 361, 1991 N.Y. App. Div. LEXIS 3128

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 1991
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiff Michael Mandell appeals (1) from an order of the Supreme Court, Suffolk County (Gerard, J.), dated February 14, 1989, which, inter alia, granted the defendants’ cross motion for summary judgment dismissing the complaint insofar as asserted by him upon the ground that he had failed to establish a serious injury in accordance with Insurance Law § 5102 (d), and (2), as limited by his brief, from so much of an order of the same court, entered July 5, 1989, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the order dated February 14, 1989, is dismissed, as that order was superseded by the order entered July 5, 1989, made upon reargument; and it is further,

Ordered that the order entered July 5, 1989, is affirmed insofar as appealed from, and it is further,

Ordered that the defendants are awarded one bill of costs.

The issue of whether the appellant has made a prima facie showing of having sustained a serious injury is one for the court in the first instance (see, Licari v Elliott, 57 NY2d 230, ; Ciaccio v J & R Home Improvements, 149 AD2d 558). We agree with the Supreme Court that he has not satisfied the requirements of Insurance Law § 5102 (d) and § 5104 (a) since his injuries did not significantly limit the use of a bodily function or system or cause permanent consequential limitation of use of a bodily organ or member. Accordingly, the court properly granted the defendants’ motion for summary judgment dismissing the complaint (see, Jones v Sharpe, 63 NY2d 645; Martini v Asmann, 146 AD2d 571).

In light of this determination, we decline to address the appellant’s other contention. Bracken, J. P., Hooper, Lawrence, Balletta and O’Brien, JJ., concur.