| Jensen v Nicmanda Trucking, Inc. |
| 2008 NY Slip Op 00458 [47 AD3d 769] |
| January 22, 2008 |
| Appellate Division, Second Department |
| Richard Jensen, Appellant, v Nicmanda Trucking, Inc., etal., Respondents. |
—[*1] Blane Magee, Rockville Centre, N.Y., for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Agate, J.), dated December 28, 2006, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that he did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
Contrary to the Supreme Court's determination, the defendants failed to make a prima facieshowing that the 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., 98NY2d 345, 350-351 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Thedefendants' motion papers did not adequately address the plaintiff's claim, clearly set forth in hisbill of particulars, that he sustained a medically-determined injury or impairment of anonpermanent nature which prevented him from performing substantially all of the material actswhich constituted his usual and customary daily activities for not less than 90 days during the180 days immediately following the accident (see Alexandre v Dweck, 44 AD3d 597 [2007]; Torres v Performance Auto. Group, Inc.,36 AD3d 894 [2007]; Sayers vHot, 23 AD3d 453, 454 [2005]). The plaintiff stated in his bill of particulars that, as aresult of the subject [*2]accident, he was out of work forapproximately five months. The subject accident occurred on January 5, 2005, and the plaintiffwas not examined by the defendant's examining orthopedic surgeon until June 19, 2006,approximately 1½ years after the accident. Despite these allegations of serious injury, thedefendant's expert did not address this category of serious injury in his report (see Alexandre v Dweck, 44 AD3d597 [2007]; Sayers v Hot, 23 AD3d at 454).
Although the defendants' examining radiologist observed disc bulges in the lumbar andcervical spine of the plaintiff, based upon his review of the plaintiff's magnetic resonanceimaging studies, he deemed that condition to be the result of pre-existing degenerative discdisease. His conclusion in this regard, however, was not sufficient to establish the defendants'prima facie case, since the plaintiff alleged more than just cervical and lumbar spine injuries inhis bill of particulars, but also alleged bilateral shoulder derangement. While the defendants'examining orthopedic surgeon noted in his report that, on the date of his examination, theplaintiff had full range of motion in both shoulders, those findings were made 1½ yearsafter the subject accident occurred. There was no opinion proffered by the defendants' experts onwhether the plaintiff's alleged shoulder injuries prevented him from going to work for fivemonths during the first 180 days immediately following the accident. Thus, the defendants failedto establish their prima facie case. When a defendant does not meet this initial burden, the courtneed not consider whether the plaintiff's opposition was sufficient to raise a triable issue of fact(see Alexandre v Dweck, 44 AD3d at 597; Coscia v 938 Trading Corp., 283AD2d 538 [2001]). Rivera, J.P., Florio, Carni and Balkin, JJ., concur.