[*1]
Duran v Leonard
2003 NY Slip Op 51648(U)
Decided on December 19, 2003
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the Official Reports.


Decided on December 19, 2003
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT:PESCE, P.J., ARONIN and RIOS, JJ.
NO. 2003-780 Q C

JUAN DURAN, Respondent, -and NITZA CARRION and RICKY VILLA, Plaintiffs,

against

CHERISE L. LEONARD, Appellant, - and- "JOHN DOE", such name being fictitious and is intended to represent the unknown operator of the automobile, Defendant.


Appeal by defendant Cherise L. Leonard from so much of an order of the Civil Court, Queens County (J. Golia, J.), dated March 5, 2003, as denied her motion for summary judgment dismissing the complaint as to plaintiff Juan Duran.


Order insofar as appealed from unanimously reversed without costs, defendant Leonard's motion for summary judgment granted and complaint as to plaintiff Duran dismissed.

The affirmed medical report submitted by the moving defendant made out a prima facie case that plaintiff Juan Duran did not sustain a serious injury pursuant to Insurance Law § 5102 (d). The report also noted that plaintiff had been in a subsequent accident in which he injured the same part of his body but the doctor still found no evidence of a triable issue of fact that he sustained a serious injury (Gaddy v Eyler, 79 NY2d 955 [1992]).

The opposition submitted by plaintiff Duran was insufficient to raise a triable issue of [*2]fact. Inasmuch as he failed to establish more than a mild disability, the defendant's motion for summary judgment should have been granted (Ireland v Clarkstown Cent. School Dist., 210 AD2d 637 [1994]).
Decision Date: December 19, 2003