Kerastos v James Luxury Corp. (2013 NY Slip Op 50190(U))

Kerastos v James Luxury Corp.

2013 NY Slip Op 50190(U) [38 Misc 3d 138(A)]

Decided on February 8, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Christine Kerastos, Respondent, -and- KONSTANTINE GRIGORIA, Plaintiff, —

against

James Luxury Corp. and LEON TUBA LAURO BENIGNO, Appellants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered January 13, 2011. The order denied defendants' motion for summary judgment dismissing so much of the complaint as was asserted by plaintiff Christine Kerastos.

In this action to recover for personal injuries allegedly sustained in a motor vehicle accident, defendants appeal from an order of the Civil Court which denied their
motion for summary judgment dismissing so much of the complaint as was asserted by Christine Kerastos (plaintiff).

The evidence that defendants submitted in support of their motion failed to eliminate all issues of fact as to whether plaintiff had sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the motor vehicle accident in question. Defendants' [*2]orthopedist largely failed to set forth whether objective tests had been performed to support his conclusion that plaintiff had no orthopedic disability as a result of the subject accident (see Kennedy v Brown, 23 AD3d 625 [2005]). Defendants' motion papers also failed to adequately address plaintiff's claim, clearly alleged in her bill of particulars, that she had sustained a medically determined injury or impairment of a nonpermanent nature which had prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident in question (see Quintanilla v Campion, 94 AD3d 1076 [2012]; Rouach v Betts, 71 AD3d 977 [2010]). Since defendants did not establish their prima facie entitlement to summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), it is not necessary to consider the timeliness or the sufficiency of plaintiff's opposition papers (see Poverud v Kwartler, 90 AD3d 729 [2011]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]).