Dae Kyoo Kim
v.
Lemon Transp. Corp.

Supreme Court, Appellate Division, Second Department, New York.Dec 20, 2017
67 N.Y.S.3d 266 (N.Y. App. Div. 2017)
67 N.Y.S.3d 266156 A.D.3d 757

2016–06208 Index No. 700646/14

12-20-2017

DAE KYOO KIM, Plaintiff, Do Hyun Cho, Appellant, v. LEMON TRANSPORTATION CORP., et al., Respondents (and a Third–Party Action).

Andrew Park, P.C., New York, N.Y. (Jason Ginsberg of counsel), for appellant. Milene Mansouri, P.C. (Marjorie E. Bornes, Brooklyn, NY, of counsel), for respondents.


Andrew Park, P.C., New York, N.Y. (Jason Ginsberg of counsel), for appellant.

Milene Mansouri, P.C. (Marjorie E. Bornes, Brooklyn, NY, of counsel), for respondents.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the plaintiff Do Hyun Cho appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Dufficy, J.), dated May 9, 2016, as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted by him on the ground that he 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 insofar as appealed from, with costs.

The defendants met their prima facie burden of showing that the plaintiff Do Hyun Cho (hereinafter the appellant) 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 defendants submitted competent medical evidence establishing, prima facie, that the alleged injury to the lumbar region of the appellant's spine did not constitute a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180 ). In addition, the defendants established, prima facie, that the appellant did not sustain a serious injury under the 90/180–day category of Insurance Law § 5102(d) by submitting a transcript of the appellant's deposition testimony, which demonstrated that he missed only two weeks of work following the accident (see John v. Linden, 124 A.D.3d 598, 599, 1 N.Y.S.3d 274 ; Marin v. Ieni, 108 A.D.3d 656, 657, 969 N.Y.S.2d 165 ; Richards v. Tyson, 64 A.D.3d 760, 761, 883 N.Y.S.2d 575 ).

In opposition, the appellant failed to raise a triable issue of fact (see Il Chung Lim v. Chrabaszcz, 95 A.D.3d 950, 951, 944 N.Y.S.2d 236 ; McLoud v. Reyes, 82 A.D.3d 848, 849, 919 N.Y.S.2d 32 ).

Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted by the appellant.

RIVERA, J.P., AUSTIN, ROMAN, HINDS–RADIX and CONNOLLY, JJ., concur.