Feyler v. Ketelsen

In an action to recover damages for personal injuries, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, J.), dated January 26, 2009, as denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is granted. 739 The defendant established, prima facie, through the affirmed reports of his medical experts, the plaintiff’s medical and hospital records, and the plaintiffs deposition testimony, 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]; House v MTA Bus Co., 71 AD3d 732 [2010]). In opposition, the plaintiff failed to submit any objective medical evidence sufficient to raise a triable issue of fact as to whether she sustained a serious injury to her head or brain within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see House v MTA Bus Co., 71 AD3d 732 [2010]; Noh v Duffe, 70 AD3d 1017 [2010]). Fisher, J.P., Covello, Balkin, Leventhal and Lott, JJ., concur.