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A.H. v Munson, 2020 NY Slip Op 07172 [189 AD3d 794]

December 2, 2020

Appellate Division, Second Department

[*1]

A.H. et al., Appellants,

v

Mary E. Munson, Respondent.

Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn and Christen Giannaros], of counsel), for appellants.

Karen Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Joel A. Sweetbaum], of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Sharon M.J. Gianelli, J.), entered July 20, 2018. The order granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the infant 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 infant plaintiff, by his mother and natural guardian, and his mother suing derivatively, commenced this action to recover damages for personal injuries that the infant plaintiff allegedly sustained when he was struck by a vehicle operated by the defendant. The defendant moved for summary judgment dismissing the complaint on the ground that the infant plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident. The Supreme Court granted the motion, and the plaintiffs appeal.

The defendant met her prima facie burden of showing that the infant plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the accident ( see Toure v Avis Rent A Car Sys. , 98 NY2d 345 [2002]; Gaddy v Eyler , 79 NY2d 955, 956-957 [1992]). The defendant demonstrated, prima facie, that the infant plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law § 5102 (d) ( see Romero v Austin , 162 AD3d 920 , 921 [2018]; John v Linden , 124 AD3d 598 , 599 [2015]; Marin v Ieni , 108 AD3d 656 , 657 [2013]; Richards v Tyson , 64 AD3d 760 , 761 [2009]). In opposition, the plaintiffs failed to raise a triable issue of fact.

Accordingly, we agree with the Supreme Court’s determination to grant the defendant’s motion for summary judgment dismissing the complaint. Rivera, J.P., Leventhal, LaSalle and Brathwaite Nelson, JJ., concur..