| Diliberto v Barberich |
| 2012 NY Slip Op 02626 [94 AD3d 803] |
| April 10, 2012 |
| Appellate Division, Second Department |
| Christine Diliberto, Appellant, v Corene Barberich,Respondent. |
—[*1] David J. Sobel, P.C., Smithtown, N.Y., for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Farneti, J.), dated October 17, 2011, which denied her crossmotion for summary judgment, in effect, on the issue of liability, and dismissing the fifthaffirmative defense alleging the lack of a serious injury within the meaning of Insurance Law§ 5102 (d).
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the plaintiff's cross motion which was for summary judgment, in effect, on the issue ofliability, and substituting therefor a provision granting that branch of the cross motion; as somodified, the order is affirmed, without costs or disbursements.
The plaintiff established her prima facie entitlement to judgment as a matter of law on theissue of liability (see Franklin v 2 GuysFrom Long Pond, Inc., 50 AD3d 846, 847 [2008]; Gregson v Terry, 35 AD3d 358, 361 [2006]; Russo v SabellaBus Co., 275 AD2d 660 [2000]). In opposition, the defendant failed to raise a triable issue offact as to her liability (Russo v Sabella Bus Co., 275 AD2d at 660-661). Accordingly, theSupreme Court should have granted that branch of the plaintiff's cross motion which was forsummary judgment, in effect, on the issue of liability.
The plaintiff, however, failed to establish her prima facie entitlement to judgment as a matterof law dismissing the fifth affirmative defense, which alleged that she did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident.While the plaintiff submitted competent medical evidence establishing, prima facie, that she hada fractured rib, which constitutes a serious injury within the meaning of Insurance Law §5102 (d) (see Bebry v Farkas-Galindez, 276 AD2d 656 [2000]), she failed to establish,prima facie, that the injury was causally related to the subject accident (see Kapeleris v Riordan, 89 AD3d903, 904 [2011]; Elshaarawy vU-Haul Co. of Miss., 72 AD3d 878, 881 [2010]; Dabbs v Kelly, 245 AD2d 482,482-483 [1997]). Accordingly, since the plaintiff failed to meet her prima facie burden, theSupreme Court properly denied that branch of the plaintiff's cross motion which was forsummary judgment dismissing the fifth affirmative defense, without considering the sufficiencyof the defendant's opposition papers (seeAltamura v OneBeacon Ins. Group, 68 AD3d 792 [2009]; see generally Winegrad vNew York Univ. Med. [*2]Ctr., 64 NY2d 851, 853 [1985]).Skelos, J.P., Dickerson, Hall, Roman and Cohen, JJ., concur.