| Capriglione v Rivera |
| 2011 NY Slip Op 02827 [83 AD3d 639] |
| April 5, 2011 |
| Appellate Division, Second Department |
| Anna Capriglione, Appellant, v Lorell Rivera,Respondent. |
—[*1]
In an action to recover damages for personal injuries, the plaintiff appeals (1), as limited byher notice of appeal and brief, from so much of an order of the Supreme Court, Queens County(Golia, J.), dated April 9, 2010, as granted the defendant's cross motion for summary judgmentdismissing the complaint on the ground that the plaintiff did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d), and (2) a judgment of the same court enteredJune 4, 2010, which, upon the order, is in favor of the defendant and against her dismissing thecomplaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
Contrary to the plaintiff's contentions, the Supreme Court correctly determined that thedefendant met his prima facie burden of 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 [2002]; Gaddy v Eyler, 79 NY2d 955,956-957 [1992]). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintifffailed to submit any affirmations or affidavits of her treating physicians, or medical records inadmissible form, of any medical findings contemporaneous with the subject accident (seeToure v Avis Rent A Car Sys., 98 NY2d at 350-351; Rush v Kwan Chiu, 79 AD3d 1004, 1005 [2010]; Posa v Guerrero, 77 AD3d 898,899 [2010]).[*2]
Since the plaintiff failed to raise a triable issue of fact inopposition, the Supreme Court properly granted the defendant's cross motion for summaryjudgment dismissing the complaint. Skelos, J.P., Covello, Eng, Chambers and Sgroi, JJ., concur.