| Shaw v Jalloh |
| 2008 NY Slip Op 09776 [57 AD3d 647] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mLatrecia Shaw, Appellant, v Umar Jalloh et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel), forrespondent Umar Jalloh. Buratti, Kaplan, McCarthy & McCarthy, East Elmhurst, N.Y. (James P. McCarthy of counsel),for respondent Floria Graham.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of theSupreme Court, Queens County (Grays, J.), entered August 30, 2007, which granted the defendants'separate motions for summary judgment dismissing the complaint insofar as asserted against each ofthem on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d).
Ordered that the order is reversed, on the law, with one bill of costs, and the defendants' separatemotions for summary judgment dismissing the complaint insofar as asserted against each of them aredenied.
The Supreme Court erred in granting the defendants' separate motions for summary judgmentdismissing the complaint insofar as asserted against each of them since they each failed to satisfy theirprima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A CarSys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In supportof their motions, the defendants relied on the same submissions. The defendants' motion papers neveradequately [*2]addressed the plaintiff's claim, clearly set forth in her billof particulars, that she sustained a medically determined injury or impairment of a nonpermanent naturewhich prevented her from performing substantially all of the material acts which constituted her usualand customary daily activities for not less than 90 days during the 180 days immediately following theaccident (see Alexandre v Dweck, 44AD3d 597 [2007]; DeVille v Barry,41 AD3d 763 [2007]; Sayers vHot, 23 AD3d 453 [2005]). The subject accident happened on November 16, 2005, and theplaintiff alleged that she missed four months of work as a result thereof. The defendants' physiciansconducted their examinations of the plaintiff one year after the subject accident. Neither expert relatedhis findings to this category of serious injury for the period of time immediately following the accident,and both noted in their respective reports that the plaintiff was out of work for more than four months asa result of the subject accident.
Since the defendants each failed to satisfy their prima facie burden, it is unnecessary to considerwhether the papers submitted by the plaintiff were sufficient to raise a triable issue of fact (see Alexandre v Dweck, 44 AD3d 597[2007]; DeVille v Barry, 41 AD3d763 [2007]; Sayers v Hot, 23AD3d 453 [2005]). Fisher, J.P., Lifson, Covello, Balkin and Belen, JJ., concur.