Dinkle v. Lagala

In a negligence action to recover damages for personal injuries, etc., the defendants Vincent Lagala and Giovanna Fontana appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Mastro, J.), dated April 30, 1997, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them 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, the appellants’ motion is granted, and the complaint is dismissed insofar as asserted against the appellants; and it is further, Ordered that, upon searching the record, the motion of the defendant New York City Transit Authority for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted, and the complaint and all cross claims are dismissed insofar as asserted against it. We agree with the appellants that the plaintiff failed to establish a prima facie case that she sustained a serious injury 625 within the meaning of Insurance Law § 5102 (d) (see, Beckett v Conte, 176 AD2d 774; O’Neill v Rogers, 163 AD2d 466; Philpotts v Petrovic, 160 AD2d 856; Covington v Cinnirella, 146 AD2d 565). Therefore, the court should have granted the appellants’ motion for summary judgment dismissing the complaint insofar as asserted against them on that basis. Furthermore, inasmuch as the plaintiff has failed to demonstrate that she sustained a serious injury, we search the record to grant the motion for summary judgment of the defendant New York City Transit Authority and dismiss the complaint and any cross claims insofar as asserted against it, notwithstanding its failure to appeal (see, Dunham v Hilco Constr. Co., 89 NY2d 425; Soto v City of New York, 244 AD2d 544; Zimmerman v Pokart, 242 AD2d 202; Sagevick v Sanchez, 228 AD2d 488). Miller, J. P., Ritter, Sullivan, Santucci and McGinity, JJ., concur.