Ramkissoon v Ramkissoon (2013 NY Slip Op 50980(U))

Ramkissoon v Ramkissoon

2013 NY Slip Op 50980(U) [39 Misc 3d 151(A)]

Decided on June 6, 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This opinion is uncorrected and will not be published in the printed Official Reports.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

Chandanie Ramkissoon, an Infant under the Age of Fourteen (14) Years, by Her Mother and Natural Guardian, SUBHAGYAWATTI RAMKISSOON, Plaintiff, -and- PRAIMKUMARY SHIWPRASHAD, Respondent, —

against

Sarju Ramkissoon and SUBHAGYAWATTI RAMKISSOON, Defendants, -and- RAMDULAR BABOOLALL, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 7, 2011. The order, insofar as appealed from, denied [*2]defendant Ramdular Baboolall's cross motion for summary judgment dismissing the complaint insofar as asserted against him by plaintiff Praimkumary Shiwprashad.

In this action to recover for personal injuries allegedly sustained in a motor vehicle accident, Ramdular Baboolall (defendant) appeals from so much of an order of the Civil Court entered January 7, 2011 as denied his unopposed cross motion for summary judgment dismissing the complaint insofar as asserted against him by Praimkumary Shiwprashad (plaintiff).

In her verified bill of particulars, plaintiff alleged, among other things, that, as a result of the accident in question, which had occurred on April 2, 2007, she had sustained a serious injury under the 90/180-day category of Insurance Law § 5102 (d). Defendant annexed to his cross motion for summary judgment a transcript of plaintiff's deposition testimony, in which plaintiff stated that she did not recall exactly when she had returned to work following the accident, but that she may have returned three months later, or not until September or November 2007, and then she had worked on a reduced schedule. Plaintiff's testimony was insufficient to satisfy defendant's burden of proof that plaintiff had sustained no injuries or impairments which prevented her from performing substantially all of the material acts that constituted her usual and customary daily activities not less than 90 days during the 180 days immediately following the accident (Insurance Law § 5102 [d]; see Katechis v Batista, 91 AD3d 912 [2012]; Scinto v Hoyte, 57 AD3d 646 [2008]; Torres v Performance Auto. Group, Inc., 36 AD3d 894 [2007]). Furthermore, defendant's examining orthopedist conducted his examination of plaintiff approximately two years after the subject accident occurred and did not relate his medical findings to this category of serious injury for the period of time immediately following the accident (see Marmer v IF USA Express, Inc., 73 AD3d 868 [2010]; Takaroff v A.M. USA, Inc., 63 AD3d 1142 [2009]; Tinsley v Bah, 50 AD3d 1019 [2008]). Consequently, defendant failed to make a prima facie showing that plaintiff had not sustained an injury under the 90/180-day category (see Cohn v Kahn, 89 AD3d 1052 [2011]) 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 [1992]).