Martinkus v Dahmen
2013 NY Slip Op 02724 [105 AD3d 1014]
April 24, 2013
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 29, 2013


Christine Martinkus, Appellant,
v
Jennifer L. Dahmen, Respondent.

[*1] Scott Lockwood, North Babylon, N.Y., for appellant.

Russo Apoznanski & Tambasco, Westbury, N.Y. (Susan J. Mitola of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Farneti, J.), entered April 20, 2012, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident.

Ordered that the order is affirmed, with costs.

The defendant met her prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine did not constitute serious injuries under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102 (d) (see Staff v Yshua, 59 AD3d 614 [2009]).

The plaintiff failed to raise a triable issue of fact in opposition. The plaintiff's argument that the defendant failed to establish that she did not sustain a serious injury under the 90/180-day category of Insurance Law § 5102 (d) is without merit, as the plaintiff failed to allege such an injury in her bill of particulars (see MacDonald v Meierhoffer, 13 AD3d 689 [2004]; Kenney v Amodei, 119 AD2d 1006 [1986]). In any event, the evidence submitted by the defendant established, prima facie, that the plaintiff did not sustain such an injury, and the plaintiff failed to raise a triable issue of fact in opposition (see generally Karpinos v Cora, 89 AD3d 994, 995 [2011]).

Thus, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Skelos, J.P., Chambers, Sgroi and Hinds-Radix, JJ., concur.