| Kolodziej v Savarese |
| 2011 NY Slip Op 07397 [88 AD3d 851] |
| October 18, 2011 |
| Appellate Division, Second Department |
| Maria Kolodziej, Respondent, v Joseph V. Savarese,Appellant. |
—[*1] Robert E. Dash, Melville, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant appeals from so much ofan order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated March 4, 2011, as deniedhis motion for summary judgment dismissing the complaint on the ground that the plaintiff didnot 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, and thedefendant's motion for summary judgment dismissing the complaint is granted.
The defendant met his prima facie burden of demonstrating his entitlement to judgment as amatter of law by providing competent medical evidence establishing, prima facie, that theplaintiff did not sustain injuries under the permanent consequential limitation of use and/orsignificant limitation of use categories of Insurance Law § 5102 (d) (see Toure v AvisRent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957[1992]; Staff v Yshua, 59 AD3d614 [2009]; Rodriguez vHuerfano, 46 AD3d 794, 795 [2007]). In opposition, the plaintiff failed to raise a triableissue of fact. The report the plaintiff submitted from her treating physician who examined herfive days after the accident was unaffirmed, and, therefore, did not constitute competent medicalevidence setting forth findings made contemporaneously with the accident (see Grasso vAngerami, 79 NY2d 813, 814-815 [1991]; Capriglione v Rivera, 83 AD3d 639, 640 [2011]).
In addition, the defendant provided evidence establishing, prima facie, that the plaintiff didnot sustain a serious injury under the 90/180-day category of Insurance Law § 5102 (d). Inopposition, the plaintiff failed to raise a triable issue of fact (see Lewars v Transit Facility Mgt. Corp., 84 AD3d 1176 [2011]; Catalano v Kopmann, 73 AD3d963, 965 [2010]).
Accordingly, the Supreme Court should have granted the defendant's motion for summaryjudgment dismissing the complaint.
In light of the limited scope of the notice of appeal, the defendant's contentions regarding theplaintiff's cross motion for summary judgment on the issue of liability are not properly beforethis Court (see Royal v Brooklyn Union Gas Co., 122 AD2d 132, 133 [1986]). Skelos,J.P., Angiolillo, Lott and Roman, JJ., concur.