Torres v. Posy

92 A.D.3d 676, 937 N.Y.2d 887

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2012
• Status: Published

Opinion

The defendants met their 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]). Although the plaintiff alleged that she sustained certain injuries to her right knee as a result of the subject accident, the defendants submitted competent medical evidence establishing, prima facie, that those alleged injuries did not constitute a serious injury within the meaning of Insurance Law § 5102 (d) (see Staff v Yshua, 59 AD3d 614 [2009]), and, in any event, were not caused by the subject accident (see Jilani v Palmer, 83 AD3d 786, 787 [2011]). In addition, although the plaintiff alleged that she sustained a serious injury under the 90/180-day category of Insurance Law § 5102 (d) as a result of the subject accident, the defendants submitted evidence establishing, prima facie, that she did not sustain such an injury (see McIntosh v O’Brien, 69 AD3d 585, 587 [2010]).

In opposition, the plaintiff, who failed to adequately explain a cessation of her medical treatment (see Pommells v Perez, 4 NY3d 566, 574 [2005]; Vasquez v John Doe #1, 73 AD3d 1033, 1034 [2010]), failed to raise a triable issue of fact (see Pommells v Perez, 4 NY3d at 579). Accordingly, the Supreme Court should have granted the defendants’ motion for summary judgment dismissing the complaint. Dillon, J.E, Balkin, Belen and Austin, JJ., concur.