| Tinsley v Bah |
| 2008 NY Slip Op 03633 [50 AD3d 1019] |
| April 22, 2008 |
| Appellate Division, Second Department |
| Frank C. Tinsley, Respondent, v Mamadou S. Bah et al.,Appellants. |
—[*1] Cheven, Keely & Hatzis, New York, N.Y. (Mayu Miyashita of counsel), for appellant AdamChilicki. Kerner & Kerner, New York, N.Y. (Kenneth T. Kerner of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Mamadou S. Bahappeals, and the defendant Adam Chilicki separately appeals, from an order of the SupremeCourt, Kings County (Saitta, J.), dated October 4, 2007, which denied their respective motionsfor summary judgment dismissing the complaint insofar as asserted against each of them on theground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d).
Ordered that the order is affirmed, with one bill of costs.
The defendants Mamadou S. Bah and Adam Chilicki, although separately moving forsummary judgment, relied on the same submissions in their attempts to meet their initial primafacie burdens. Their respective motion papers did not adequately address the plaintiff's claim,clearly set forth in his bill of particulars, that he sustained a medically-determined injury orimpairment of a nonpermanent nature which prevented him from performing substantially all ofthe material acts constituting his usual and customary daily activities for not less than 90 daysduring the 180 days immediately following the subject accident. The subject accident occurredon June 4, 2005. The plaintiff alleged in his bill of particulars that he was confined to his bed andhome for a period of 4½ [*2]months post-accident. Thedefendants' examining neurologist conducted his examination of the plaintiff approximately1½ years after the subject accident occurred. He did not relate his medical findings to thiscategory of serious injury for the period of time immediately following the subject accident (see Joseph v Hampton, 48 AD3d638 [2008]; DeVille v Barry,41 AD3d 763 [2007]; Torres vPerformance Auto. Group, Inc., 36 AD3d 894 [2007]; Sayers v Hot, 23 AD3d 453[2005]). The excerpts of the plaintiff's deposition testimony relied upon by the defendantsessentially established only that the plaintiff was retired at the time of the subject accident. Thesesubmissions clearly did not establish the lack of any such category of serious injury.
Since the defendants failed to satisfy their prima facie burdens, it is unnecessary to considerwhether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Joseph v Hampton, 48 AD3d638 [2008]; Sayers v Hot, 23AD3d 453 [2005]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Fisher, J.P.,Florio, Angiolillo, Dickerson and Belen, JJ., concur.