Pacchiano v. DiLauro

177 A.D.2d 625, 576 N.Y.S.2d 795, 1991 N.Y. App. Div. LEXIS 14923

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 1991
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (G. Aronin, J.), dated January 24, 1990, which denied her motion for summary judgment dismissing the complaint based on the plaintiff’s failure to demonstrate that she sustained a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

On May 26, 1987, at the intersection of 23rd Avenue and 86th Street in Brooklyn, the plaintiff’s car came into contact with a car driven by the defendant. On appeal, the defendant contends that the plaintiff failed to establish a prima facie case of "serious injury” pursuant to Insurance Law § 5102 (d). We agree.

The plaintiff does not seriously argue that she suffered a permanent consequential limitation of a use of a body organ or member or significant limitation of use of a body function or system (see, Perez v Einhorn, 123 AD2d 752). Moreover, the plaintiff failed to support her allegation that her injuries prevented her from performing "substantially all” of the material acts constituting her customary daily activities during at least 90 out of the first 180 days following the accident (Licari v Elliott, 57 NY2d 230, 236; see, Covington v Cinnirella, 146 AD2d 565; Gootz v Kelly, 140 AD2d 874, 875-876; see, Moreno v Roberts, 161 AD2d 1099). Accordingly, the defendant’s motion for summary judgment dismissing the complaint is granted. Mangano, P. J., Harwood, Eiber and O’Brien, JJ., concur.