Godden v. Carmen

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order and judgment (one paper) of the Supreme Court, Suffolk County (Baisley, J.), entered March 16, 1988, as granted the defendant Carmen’s motion for summary judg [813] ment dismissing the complaint on the ground that the plaintiff failed to establish a serious injury in accordance with Insurance Law § 5102 (d), and dismissed the complaint. Ordered that the order and judgment is affirmed insofar as appealed from, with costs. The issue of whether the plaintiff has made a prima facie showing of having sustained a serious injury is one for the court in the first instance (Licari v Elliott, 57 NY2d 230, 237). We agree with the Supreme Court that the plaintiff has not satisfied the requirements of Insurance Law § 5102 (d) and § 5104 (a) since her alleged injury, "acute cervical strain”, did not significantly limit the use of a body function or system nor cause permanent consequential limitation of use of a body organ or member. Accordingly, the court properly granted the respondent’s motion for summary judgment dismissing the complaint (see, Jones v Sharpe, 63 NY2d 645; Martini v Asmann, 146 AD2d 571). Thompson, J. P., Brown, Balletta, Miller and O’Brien, JJ., concur.