| Joseph v Hampton |
| 2008 NY Slip Op 01506 [48 AD3d 638] |
| February 19, 2008 |
| Appellate Division, Second Department |
| Pierre Joseph et al., Appellants, v Simone Hampton,Respondent. |
—[*1] Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Gilbert J. Hardy of counsel),for respondent.
In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from anorder of the Supreme Court, Kings County (Kramer, J.), dated October 31, 2006, which, in effect,granted the defendant's motion for summary judgment, in effect, dismissing the first and secondcauses of action on the ground that neither of the plaintiffs sustained a serious injury within themeaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the motion for summaryjudgment, in effect, dismissing the first and second causes of action is denied.
Contrary to the Supreme Court's determination, the defendant failed to establish her primafacie entitlement to judgment as a matter of law with respect to the first cause of action, since shefailed to demonstrate that the plaintiff Pierre Joseph 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]). The defendant's motion papers failed to adequately address Joseph's claim, clearly setforth in his bill 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. The [*2]accidentoccurred on May 8, 2002. On August 23, 2005 Joseph testified at his deposition that, as a resultof the accident, he was unable to, and never did, return to work after the accident. In October2005, which was nearly 3½ years after the accident, the defendant's examining orthopedicsurgeon and examining neurologist conducted separate examinations of Joseph. Neitherphysician related his medical findings to this category of serious injury for the period of timeimmediately following the accident (seeDeVille v Barry, 41 AD3d 763, 763-764 [2007]; Torres v Performance Auto. Group, Inc., 36 AD3d 894, 895[2007]; Sayers v Hot, 23 AD3d453, 454 [2005]). Furthermore, while Joseph also alleged in his bill of particulars that hesustained, among other injuries, a medial tear of the posterior horn of the medial meniscus of hisright knee, neither physician indicated that he performed any objective tests with respect to thisalleged injury, or even whether he examined Joseph's right knee (see Gerson v C.L.S. Transp., Inc., 37AD3d 530, 531 [2007]; Villavicencio v Mieles, 7 AD3d 517 [2004]; Morales v NewYork City Tr. Auth., 287 AD2d 604, 604-605 [2001]).
In addition, contrary to the Supreme Court's determination, the defendant also failed toestablish her prima facie entitlement to judgment as a matter of law with respect to the secondcause of action, since she failed to demonstrate that the plaintiff Jacqueline Moise did not sustaina serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident. Among the medical submissions relied on by the defendant was her examiningorthopedic surgeon's affirmed medical report, which identified a significant limitation of range ofmotion in Moise's lumbosacral spine (see Joissaint v Starrett-1 Inc., 46 AD3d 622 [2007]; Avrashkova v Paul, 44 AD3d 976,977 [2007]; Friedman v Albert, 44AD3d 897, 898 [2007]).
Since the defendant failed to meet her initial burden with respect to either of the plaintiff'scauses of action to recover damages for personal injuries, it is unnecessary to consider whetherthe plaintiffs' papers, submitted in opposition, were sufficient to raise a triable issue of fact(see Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Prudenti, P.J., Skelos, Miller,Covello and McCarthy, JJ., concur.