| Scinto v Hoyte |
| 2008 NY Slip Op 09775 [57 AD3d 646] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mMarilyn Scinto, Appellant, v Albert Hoyte et al.,Respondents. |
—[*1] Scott D. Middleton, Bohemia, N.Y., for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of theSupreme Court, Nassau County (Spinola, J.), entered September 25, 2007, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that she 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 for summaryjudgment dismissing the complaint is denied.
The defendants did not meet their prima facie burden of establishing that the plaintiff did not sustaina serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002]; Gaddy v Eyler,79 NY2d 955, 956-957 [1992]). The plaintiff alleged in her bill of particulars that she had amedically-determined injury or impairment of a nonpermanent nature which prevented her fromperforming substantially all of the material acts constituting her usual and customary activities for not lessthan 90 days during the 180 days immediately following the accident (hereinafter the 90/180 category).The affirmed report of the defendants' examining orthopedist did not specifically relate any of hisfindings to this category of serious injury for the relevant period of time following the accident (see Daddio v Shapiro, 44 AD3d 699,700 [2007]). The plaintiff's deposition testimony, which was also annexed to the defendants' summaryjudgment motion, was insufficient to establish the defendants' burden of proof that the plaintiff had noinjury in the 90/180 category (see Greenidgev Righton Limo, Inc., 43 AD3d 1109, 1110 [2007]; Torres v Performance Auto. Group, Inc., 36 AD3d 894, [*2]895 [2007]; Sayers v Hot, 23 AD3d 453, 454 [2005]).
Since the defendants failed to meet their prima facie burden, it is unnecessary to consider thequestion of whether the papers submitted by the plaintiff were sufficient to raise a triable issue of fact(see McKenzie v Redl, 47 AD3d775, 777 [2008]; Sayers v Hot, 23 AD3d at 454). Skelos, J.P., Ritter, Dillon, Carni andLeventhal, JJ., concur.