| Yung v Eager |
| 2008 NY Slip Op 04322 [51 AD3d 638] |
| May 6, 2008 |
| Appellate Division, Second Department |
| Ken Fea Yung et al., Appellants, v Barbara M. Eager et al.,Respondents. |
—[*1] O'Connor, McGuinness, Conte, Doyle & Oleson, White Plains, N.Y. (Montgomery L.Effinger of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order ofthe Supreme Court, Westchester County (Giacomo, J.), entered June 7, 2007, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that neitherplaintiff sustained 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.
The defendants failed to meet their prima facie burden of showing that neither the plaintiffKen Fea Yung nor the plaintiff Wai Hing Yung sustained a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent ACar Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]).
The defendants' motion papers did not adequately address the plaintiffs' claims, clearly setforth in their bill of particulars, that they each sustained medically-determined injuries orimpairments of a nonpermanent nature which prevented them from performing substantially allof the material acts which constituted their usual and customary daily activities for not less than90 days during the 180 days immediately following the subject accident. The plaintiffs' bill ofparticulars alleged that as a result of the subject accident, they were each confined to their homefor three to four [*2]months after the accident. The defendants'examining orthopedic surgeon conducted examinations of the plaintiffs more than four monthsafter the subject accident occurred. He did not relate his medical findings to this category ofserious injury for the period of time immediately following the subject accident (see Joseph v Hampton, 48 AD3d638 [2008]; DeVille v Barry,41 AD3d 763, 764 [2007]; Torres vPerformance Auto. Group, Inc., 36 AD3d 894, 895 [2007]; Sayers v Hot, 23 AD3d 453[2005]).
Since the defendants failed to satisfy their prima facie burdens, it is unnecessary for thisCourt to consider whether the plaintiffs' opposition papers were sufficient to raise a triable issueof fact (see Joseph v Hampton, 48 AD3d at 638; Sayers v Hot, 23 AD3d 453 [2005]). Spolzino, J.P., Ritter, Dillon,Balkin and Leventhal, JJ., concur.