Smith v. Roberts

131 A.D.3d 423, 13 N.Y.S.3d 896

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 11, 2015
• Docket: 15593 305191/11
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered April 9, 2014, which, in an action for personal injuries sustained in a motor vehicle accident, granted defendants’ motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants established their entitlement to judgment as a matter of law by submitting evidence showing that plaintiff did not sustain a serious injury to his spine and right knee (Insurance Law § 5102 [d]).

In opposition, plaintiff failed to offer evidence of permanent consequential limitations in his knee or spine.

Defendants met their burden on the 90/180-day category via plaintiff’s testimony that he missed three days of work following the accident (see Williams v Baldor Specialty Foods, Inc., 70 AD3d 522 [1st Dept 2010]). That plaintiff subsequently missed approximately a year of work following surgery that was conducted several months after the accident is not determinative of a 90/180-day injury (see Nicholas v Cablevision Sys. Corp., 116 AD3d 567, 568 [1st Dept 2014]).

Concur — Mazzarelli, J.P., Friedman, Richter, Manzanet-Daniels and Gische, JJ.