Mager v. Cooney

Apr 1, 2008
Versions:50 A.D.3d 648
853 N.Y.S.2d 920

Jillian M. Mager, Respondent, v Sheila Cooney et al., Appellants. [853 NYS2d 920]—In an action to recover damages for personal injuries, the defendant Jessica Laverty appeals, and the defendants Sheila Cooney and Kelley A. Grauer separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated March 14, 2007, as denied the motion of the defendant Jessica Laverty for summary judgment dismissing the complaint insofar as asserted against her on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and denied the separate motion of the defendants Sheila Cooney and Kelley A. Grauer for the same relief.

Ordered that the appeal by the defendant Jessica Laverty from so much of the order as denied the motion of the defendants Sheila Cooney and Kelley A. Grauer to dismiss the complaint insofar as asserted against them is dismissed, as that appellant is not aggrieved by that portion of the order (see CPLR 5511); and it is further,

Ordered that the appeal by the defendants Sheila Cooney and Kelley A. Grauer from so much of the order as denied the motion of the defendant Jessica Laverty for summary judgment dismissing the complaint insofar as asserted against her is dismissed, as those appellants are not aggrieved by that portion of the order (see CPLR 5511); and it is further;

Ordered that the order is reversed insofar as reviewed, on the law, and the motions for summary judgment dismissing the complaint are granted; and it is further,

Ordered that one bill of costs is awarded to the appellants appearing separately and filing separate briefs.

The medical evidence which the defendants submitted in support of their respective motions for summary judgment dismissing the complaint established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; Washington v Cross, 48 AD3d 457 [2008]; Morris v Edmond, 48 AD3d 432 [2008]). In opposition to the motion, the plaintiff failed to raise a triable issue of fact (see CPLR 3212 [b]). Rivera, J.P., Ritter, Carni and Leventhal, JJ., concur. [See 2007 NY Slip Op 30766(U).]