Opinion
2012-12-19
Kerry A. DAVIS–HASSAN, respondent, v. Mufeed O. SIAD, appellant.
Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum], of counsel), for appellant. Frank J. Dito, Jr., Staten Island, N.Y., for respondent.
Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum], of counsel), for appellant. Frank J. Dito, Jr., Staten Island, N.Y., for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Richmond County (Fusco, J.), dated April 23, 2012, which denied that branch of his motion which was 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 his 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 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). 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 within the meaning of Insurance Law § 5102(d) ( see Fudol v. Sullivan, 38 A.D.3d 593, 594, 831 N.Y.S.2d 504), and that the plaintiff did not sustain a serious injury under the 90/180–day category of Insurance Law § 5102(d) ( see Richards v. Tyson, 64 A.D.3d 760, 761, 883 N.Y.S.2d 575).
In opposition, however, the plaintiff submitted evidence raising a triable issue of fact as to whether she sustained serious injuries to the cervical and lumbar regions of her spine ( see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424). Thus, the Supreme Court properly denied that branch of the defendant's motion which was for summary judgment dismissing the complaint.
We have not considered the defendant's remaining contention, regarding a gap in treatment, since it was improperly raised for the first time in his reply papers, and not considered by the Supreme Court ( see Tadesse v. Degnich, 81 A.D.3d 570, 570, 917 N.Y.S.2d 569;see also Petito v. City of New York, 95 A.D.3d 1095, 1095, 944 N.Y.S.2d 300).