| Felix v Wildred |
| 2008 NY Slip Op 07085 [54 AD3d 891] |
| September 23, 2008 |
| Appellate Division, Second Department |
| Jean Felix et al., Respondents, v Germain Wildred,Appellant. |
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In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Queens County (Rosengarten, J.), dated February 8, 2008, whichdenied his motion for summary judgment dismissing the complaint on the ground that theplaintiff Jean Felix 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 granted.
Contrary to the Supreme Court's determination, the defendant met his prima facie burden byshowing that the plaintiff Jean Felix (hereinafter the injured plaintiff) did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident(see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79NY2d 955, 956-957 [1992]), which occurred on January 14, 2006. The affirmed medical reportof the defendant's examining neurologist clearly showed that the injured plaintiff, whenexamined, had normal memory for recent and past events, was able to calculate, and showed nodeficits in cognitive function.
In opposition, the plaintiffs failed to raise a triable issue of fact. Although the injuredplaintiff's treating neurologist reported that an examination on September 20, 2006 revealed thatthe injured plaintiff sustained a memory loss, the neurologist failed to reconcile this finding withhis findings of normal concentration, attention, and memory going back eight months precedingthat [*2]examination, made in connection with three postaccidentexaminations of the injured plaintiff on January 23, 2006, February 24, 2006, and March 24,2006, respectively (see Magarin vKropf, 24 AD3d 733 [2005]; Powell v Hurdle, 214 AD2d 720 [1995]). Since theinjured plaintiff did not allege in his bill of particulars that he injured his spine, any claimsconcerning his spine were not considered by this Court, and should not have been considered bythe Supreme Court (see Ifrach v Neiman, 306 AD2d 380 [2003]). Fisher, J.P., Lifson,Covello, Balkin and Belen, JJ., concur.