| Das v Garcia |
| 2010 NY Slip Op 51844(U) [29 Misc 3d 130(A)] |
| Decided on October 20, 2010 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the Civil Court of the City of New York, Queens County (Lee A.
Mayersohn, J.), entered September 19, 2008. The order, insofar as appealed from, denied the
branch of defendants' motion which sought summary judgment dismissing the complaint on the
ground that plaintiff did not suffer a medically determined injury which prevented him from
performing his usual and customary daily activities for not less than 90 days during the 180 days
immediately following the motor vehicle accident.
ORDERED that the order, insofar as appealed from, is affirmed without costs.
In this action to recover for personal injuries allegedly sustained in a motor vehicle accident,
defendants moved for summary judgment dismissing the complaint on
the ground that plaintiff had not sustained a serious injury within the meaning of Insurance
Law § 5102 (d). By order entered September 19, 2008, insofar as appealed from by
defendants, the Civil Court denied the branch of defendants' motion which sought summary
judgment with respect to the 90/180-day category of serious injury, finding that defendants'
motion papers failed to make a prima facie showing as to said category.
Plaintiff alleged in his bill of particulars that he had sustained injuries under this category. In support of their motion, defendants attached a transcript of plaintiff's deposition at which plaintiff testified that he had missed "roughly" three months from work immediately following the accident. Plaintiff also informed defendants' examining physicians that he had not worked for that period of time. Defendants' doctors did not examine plaintiff until more than four years [*2]after the accident, and they did not relate their medical findings to the 90/180-day category of serious injury. Consequently, defendants failed to adequately address plaintiff's claim of injuries under the 90/180-day category (see Hossain v Singh, 63 AD3d 790 [2009]; Greenidge v Righton Limo, Inc., 43 AD3d 1109 [2007]). As defendants failed to meet their prima facie burden with respect to this category (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]), the order, insofar as appealed from, is affirmed.
Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: October 20, 2010