Wright v. Peralta

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated December 5, 2003, which denied his motion pursuant to CPLR 3212 to dismiss the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). 490 Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed. The defendant made a prima facie showing of entitlement to judgment as a matter of law by presenting objective evidence that the plaintiff did not sustain a serious injury as a result of the subject accident. The proof included, inter alia, an affirmed report by the defendant’s orthopedist that, as compared to the relevant normal ranges of motion, as set forth in the report, the plaintiff suffered no limitation (see Insurance Law § 5102 [d]; Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-353 [2002]; Villalta v Schechter, 273 AD2d 299, 300 [2000]; cf. Junco v Ranzi, 288 AD2d 440 [2001]). In opposition, the plaintiff failed to present any medical evidence to raise a triable issue of fact as to whether she sustained a serious injury (see Paul v Trerotola, 11 AD3d 441 [2004]; Kauderer v Penta, 261 AD2d 365, 366 [1999]). Accordingly, the court should have granted the defendant’s motion for summary judgment dismissing the complaint. Florio, J.P., Crane, Krausman, Rivera and Fisher, JJ., concur.