| Levine v Deposits Only, Inc. |
| 2009 NY Slip Op 00355 [58 AD3d 697] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Harriet Levine, Respondent, v Deposits Only, Inc.,Appellants. |
—[*1] Geller & Siegel, LLP (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaacand Jillian Rosen], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Nassau County (Parga, J.), dated March 20, 2008, which denied their motionfor summary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d), and granted the plaintiff'scross motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, the defendants' motion forsummary judgment dismissing the complaint is granted, and the plaintiff's cross motion is deniedas academic.
This action arises from a collision involving a motor vehicle operated by the plaintiff and atruck owned by the defendant Deposits Only, Inc., and operated by the defendant Robert Kellett.
The defendants made a prima facie showing that the plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d) as a result of the subject accident (seeToure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002]; Gaddy v Eyler, 79 NY2d955, 956-957 [1992]; D'Alba vYong-Ae Choi, 33 AD3d 650 [2006]). In opposition, the plaintiff failed to raise a triableissue of fact. The plaintiff's medical submissions [*2]failed toaddress the finding of the defendants' examining radiologist that the condition of the plaintiff'scervical and lumbar spines and right shoulder resulted from preexisting degeneration and wasnot caused by the subject accident (seeLarkin v Goldstar Limo Corp., 46 AD3d 631 [2007]). Accordingly, the Supreme Courtshould have granted the defendants' motion and denied the plaintiff's cross motion as academic.Fisher, J.P., Miller, Carni and Balkin, JJ., concur.