Appeal from an order of the Civil Court of the City of New York, Queens County (Timothy J. Dufficy, J.), entered October 26, 2005. The order granted a motion by defendant Hawkeye Construction, LLC and cross motions by defendants Theresa A. Farah and Bradley S. Draper for summary judgment and, in effect, denied plaintiff's cross motion for summary judgment.

Order modified by providing that the motion by defendant Hawkeye Construction, LLC for summary judgment is denied, and the cross motions by defendants Theresa A. Farah and Bradley S. Draper for summary judgment are denied as to the 90/180 day category of Insurance Law § 5102 (d); as so modified, affirmed without costs.

In this action to recover damages for personal injuries, defendant Hawkeye Construction, LLC (Hawkeye) moved, and the other defendants cross-moved, for summary judgment dismissing the complaint on the ground that plaintiff failed to satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d). Plaintiff opposed defendants' motions, arguing, inter alia, that she had sustained a serious injury under the 90/180 day category of the statute, and cross-moved for summary judgment determining as a matter of law that she had sustained such an injury. Plaintiff also contended that Hawkeye was a "noncovered person" pursuant to Insurance Law § 5102 (j) and § 5104 (a) and (b), and, as such, she did not have to satisfy the threshold requirement of suffering a serious injury as to Hawkeye. Hawkeye's flagman was controlling traffic while its dump truck and backhoe were loading dirt at a construction site, and, allegedly as a result of the flagman's directions, the vehicle owned by defendant Farah, in which plaintiff was a passenger, collided with defendant Draper's vehicle. [*2]The Civil Court awarded summary judgment to all the defendants on the ground that plaintiff did not sustain a serious injury and, in effect, denied plaintiff's cross motion.

Upon the motion by Hawkeye for summary judgment on the ground that plaintiff did not suffer a serious injury within the meaning of the No-Fault Law, it was Hawkeye's burden to establish that the No-Fault Law governs plaintiff's cause of action against it. In the absence of such a showing, the "serious injury" threshold of the No-Fault Law would not apply to plaintiff's cause of action against Hawkeye. To meet this burden, Hawkeye was required to establish that plaintiff's injuries arose out of Hawkeye's negligence in the "use or operation of a motor vehicle" (Insurance Law § 5104 [a]). This, in turn, entailed a showing that one of Hawkeye's vehicles was a "proximate cause" of the injury (Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 215 [1993]; see Walpole v Lockhart, 6 AD3d 1087 [2004]). Since Hawkeye failed to show that either its backhoe or its dump truck was a proximate cause of the accident, "liability for the losses sustained [is] more properly addressed outside the area of no-fault motor vehicle insurance" (Walton, 88 NY2d at 214).

We further find that the other defendants failed to make a prima facie showing that plaintiff did not sustain a serious injury as to the 90/180 day category of Insurance Law § 5102 (d). The medical reports of Hawkeye's physicians, who found that plaintiff's injuries were degenerative in nature, were based upon examinations of plaintiff conducted more than four years after plaintiff was allegedly injured. Said medical reports were not based on any statement in the plaintiff's doctor's reports which referred to MRIs taken within a month after the accident. This proof was insufficient to establish that plaintiff did not satisfy the 90/180 day category of the statute (see Perez v Ali, 23 AD3d 363 [2005]; see also Lopez v Geraldino, 35 AD3d 398 [2006]). Accordingly, their cross motions for summary judgment insofar as they were based on plaintiff's failure to satisfy the 90/180 day category of the statute should have been denied. With respect to plaintiff's cross motion, we note that it was properly denied as plaintiff failed to establish her entitlement as a matter of law to a determination that she suffered a serious injury under the 90/180 day category of the statute. Plaintiff's doctor examined her nine days after the accident. The record is devoid of any proof that plaintiff's doctor found, during the 90/180 day period, a medically determined injury or impairment of a non-permanent nature which prevented the plaintiff from performing substantially all of the material acts which constituted her usual and customary daily activities. The record merely contains a report by plaintiff's doctor of the only other examination of plaintiff which occurred beyond the 90/180 day period. Thus, while plaintiff alleges that she in fact refrained from working and curtailed all physical activities during the statutory period, such statement, standing alone, is insufficient to satisfy the requirement that it was due to a medically determined injury.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: February 27, 2007