| Greenidge v Righton Limo, Inc. |
| 2007 NY Slip Op 06952 [43 AD3d 1109] |
| September 25, 2007 |
| Appellate Division, Second Department |
| Shener Greenidge, Appellant, v Righton Limo, Inc.,Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel),for respondent.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Patterson, J.), dated July 6, 2006, which granted thedefendant's motion for summary judgment dismissing the complaint on the ground that she didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
Contrary to the Supreme Court's determination, the defendant failed to meet its prima facieburden of showing that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent ACar Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Thedefendant failed to adequately address the plaintiff's claim, clearly set forth in her bill ofparticulars, that, as a result of the subject accident, she was unable to perform substantially all ofthe material acts which constituted her usual and customary daily activities for a period of 90days during the 180 days immediately following the subject accident (see Kouros v Mendez, 41 AD3d786 [2007]; DeVille v Barry,41 AD3d 763 [2007]; Torres vPerformance Auto. Group, Inc., 36 AD3d 894 [2007]). The accident here occurred onFebruary 7, 2004. The plaintiff testified that as a result of the subject accident she was out ofwork for 3½ months, [*2]which the defendant's examiningneurologist noted in his report. The defendant's examining neurologist did not examine theplaintiff until almost two years after the accident, and did not relate his medical findings to thiscategory of serious injury for the period of time immediately following the accident.
Since the defendant failed to establish its prima facie burden, it is unnecessary to considerwhether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issueof fact (see Kouros v Mendez, 41AD3d 786 [2007]; DeVille v Barry,41 AD3d 763 [2007]; Torres vPerformance Auto. Group, Inc., 36 AD3d 894 [2007]; Coscia v 938 TradingCorp., 283 AD2d 538 [2001]). Santucci, J.P., Goldstein, Dillon and Angiolillo, JJ., concur.