| Daddio v Shapiro |
| 2007 NY Slip Op 07650 [44 AD3d 699] |
| October 9, 2007 |
| Appellate Division, Second Department |
| William Daddio et al., Appellants, v Susan I. Shapiro,Respondent. |
—[*1] Robin Harris King Fodera & Richman (Mauro Goldberg & Lilling LLP, Great Neck, N.Y.[Deborah F. Peters and Richard J. Montes] of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Richmond County (Maltese, J.), dated March 28, 2006, which granted thedefendant's motion for summary judgment dismissing the complaint on the ground that theplaintiff William Daddio did not 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.
The Supreme Court erred in concluding that the defendant established her prima facieentitlement to judgment as a matter of law. The defendant's submissions in support of her motionfor summary judgment failed to establish that the plaintiff William Daddio (hereinafter theinjured plaintiff) did not sustain a serious injury within the meaning of Insurance Law §5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendant's papersfailed to address the plaintiffs' allegation, clearly set forth in their bill of particulars, that theinjured plaintiff sustained a medically-determined injury or impairment of a nonpermanent naturewhich prevented him from performing substantially all of the material acts which constituted hisusual and customary daily activities for not less than 90 days [*2]during the 180 days immediately following the accident. Theaccident occurred on October 12, 2000. The injured plaintiff testified that as a result of theaccident he missed 4½ to 5 months of work immediately following the accident. Thedefendant relied on, inter alia, the affirmed medical report of an orthopedic surgeon whoexamined the injured plaintiff on September 3, 2004. The orthopedic surgeon, who conducted hisexamination of the injured plaintiff almost four years after the accident occurred, did not relateany of his findings to this category of serious injury for the period of time immediately followingthe accident. As such, the defendant failed to meet her prima facie burden (see Kouros v Mendez, 41 AD3d786 [2007]; DeVille v Barry,41 AD3d 763 [2007]; Torres vPerformance Auto. Group, Inc., 36 AD3d 894 [2007]; see also Sayers v Hot, 23 AD3d453, 454 [2005]).
Since the defendant failed to meet her prima facie burden, it is unnecessary to address thequestion of whether the papers submitted by the plaintiffs in opposition were sufficient to raise atriable issue of fact (see Kouros vMendez, 41 AD3d 786 [2007]; DeVille v Barry, 41 AD3d 763 [2007]; Torres v Performance Auto. Group, Inc.,36 AD3d 894 [2007]; see alsoSayers v Hot, 23 AD3d 453, 454 [2005]; Coscia v 938 Trading Corp., 283AD2d 538 [2001]). Schmidt, J.P., Spolzino, Skelos, Lifson and McCarthy, JJ., concur.