| Alexandre v Dweck |
| 2007 NY Slip Op 07384 [44 AD3d 597] |
| October 2, 2007 |
| Appellate Division, Second Department |
| William Alexandre, Respondent, v Freida Dweck et al.,Appellants, et al., Defendant. |
—[*1] McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. (James J. Collins ofcounsel), for appellant Hann Auto Trust (joining in brief of appellants Freida Dweck andAccutime Watch Corp.). Baron Associates, P.C., Brooklyn, N.Y. (Alan G. Karmazin of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Freida Dweck andAccutime Watch Corp. appeal, and the defendant Hann Auto Trust separately appeals, as limitedby their brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.), datedJanuary 5, 2006, as denied their respective cross motions for summary judgment dismissing thecomplaint insofar as asserted against them on the issue of liability and on the ground that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable bythe appellants appearing separately.
The appellants failed to make a prima facie showing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d). The appellants' motionpapers did not adequately address the plaintiff's claim, clearly set forth in his bill of particulars,that he sustained a medically-determined injury or impairment of a nonpermanent nature whichprevented [*2]him from performing substantially all of thematerial acts which constituted his usual and customary daily activities for not less than 90 daysduring the 180 days immediately following the accident (see Sayers v Hot, 23 AD3d 453, 454 [2005]). The accidentoccurred on January 2, 2002 and the plaintiff was out of work until July 2002. The appellants'physicians conducted their examinations of the plaintiff more than 2½ years after theincident. Neither expert related his findings to this category of serious injury for the period oftime immediately following the accident. Where a defendant does not meet this initial burden,the court need not consider whether the plaintiff's opposition was sufficient to raise a triable issueof fact (see Coscia v 938 Trading Corp., 283 AD2d 538 [2001]).
Furthermore, while the deposition testimony of the defendant Freida Dweck established,prima facie, that the accident did not result from negligence on her part (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]), the conflicting testimony of the plaintiff as towhich driver was proceeding with a green light raised a triable issue of fact on the question ofliability (see CPLR 3212 [b]). Crane, J.P., Lifson, Carni and Balkin, JJ., concur.