Friscia v Mak Auto, Inc.

2009 NY Slip Op 01081 [59 AD3d 492]

February 10, 2009

Appellate Division, Second Department

As corrected through Wednesday, April 1, 2009

Marlene Friscia, Respondent, v Mak Auto, Inc., et al.,Defendants, and Mary J. Scarola, Appellant.

—[*1]Votto & Cassata, LLP, Staten Island, N.Y. (Christopher J. Albee of counsel), forappellant.

Joseph M. Palmiotto, New York, N.Y., for respondent.

In an action to recover damages for personal injuries, the defendant Mary J. Scarola appealsfrom an order of the Supreme Court, Richmond County (McMahon, J.), dated October 15, 2007,which denied her motion for summary judgment dismissing the complaint insofar as assertedagainst her on the ground that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, and the motion of the defendantMary J. Scarola for summary judgment dismissing the complaint insofar as asserted against heris granted.

The defendant Mary J. Scarola met her prima facie burden of showing that the plaintiff didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result ofthe subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddyv Eyler, 79 NY2d 955 [1992]). In opposition, the plaintiff failed to raise a triable issue offact. While the plaintiff's treating physician indicated that when he examined the plaintiff shortlyafter the accident he found a limited range of motion in her cervical and lumbar spine, he failedto provide any quantified findings to support his assertions (see Fiorillo v Arriaza, 52 AD3d 465 [2008]; Duke v Saurelis, 41 AD3d 770[2007]). In addition, the plaintiff failed to submit any competent evidence that she had sustaineda vertebral fracture as a result of the accident (cf. Poma v Ortiz, 2 AD3d 616 [2003]; Smolyar v Krongauz, 2 AD3d 518[2003]). Finally, in the absence of any competent medical evidence, the plaintiff's self-servingdeposition testimony [*2]was insufficient to demonstrate theexistence of a serious injury (see Dukev Saurelis, 41 AD3d 770 [2007]). Spolzino, J.P., Santucci, Miller, Dickerson and Eng,JJ., concur.