| Monkhouse v Maven Limo, Inc. |
| 2007 NY Slip Op 07412 [44 AD3d 630] |
| October 2, 2007 |
| Appellate Division, Second Department |
| Joetha A. Monkhouse, Respondent, v Maven Limo, Inc., etal., Appellants, et al., Defendants. |
—[*1] Goidel & Siegel, LLP, New York, N.Y. (Daniel H. Levy of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Maven Limo, Inc., andCedano M. Ortiz appeal, as limited by their brief, from so much of an order of the SupremeCourt, Kings County (Held, J.), dated December 11, 2006, as denied their motion for summaryjudgment dismissing the complaint insofar as asserted against them 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 costs.
The defendants Maven Limo, Inc., and Cedano M. Ortiz (hereinafter collectively MavenLimo) failed to establish, prima facie, that the plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure vAvis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957[1992]). Maven Limo failed to even address, much less satisfy their burden with respect to, theplaintiff's allegation that she suffered permanent facial scarring and disfigurement as a result ofthe subject accident (see O'Neal vBronopolsky, 41 AD3d 452 [2007]; Hughes v Cai, 31 AD3d 385 [2006]; Loadholt v New York City Tr. Auth.,12 AD3d 352 [2004]). Moreover, Maven Limo's motion papers failed to adequately addressthe plaintiff's claim, clearly set forth in her bill of particulars, that she sustained amedically-determined injury or impairment of a nonpermanent nature which prevented her fromperforming substantially all of the material acts which constituted her usual and customary dailyactivities for not less than 90 days [*2]during the 180 daysimmediately following the accident. The subject accident occurred on January 16, 2003. Theplaintiff's bill of particulars alleged that as a result of the subject accident, she was confined toher home and bed for three months post-accident. Maven Limo's examining neurologistconducted his examination of the plaintiff more than 3½ years post-accident, and noted inhis report that the plaintiff lost eight months of work as a result of the subject accident. He neverrelated his medical findings to this category of serious injury for the period of time immediatelyfollowing the subject accident (seeDeVille v Barry, 41 AD3d 763 [2007]; Kouros v Mendez, 41 AD3d 786 [2007]; Torres v Performance Auto. Group,Inc., 36 AD3d 894 [2007]; seealso Sayers v Hot, 23 AD3d 453, 454 [2005]).
Since Maven Limo failed to satisfy their prima facie burden, it is unnecessary to considerwhether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see DeVille v Barry, 41 AD3d 763[2007]; Sayers v Hot, 23 AD3d453 [2005]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Schmidt, J.P.,Spolzino, Skelos, Lifson and McCarthy, JJ., concur.