| Elias v Mahlah |
| 2009 NY Slip Op 00043 [58 AD3d 434] |
| January 8, 2009 |
| Appellate Division, First Department |
| Lucia C. Elias et al., Respondents, v Moses B. Mahlah,Appellant. |
—[*1] Michael Fuller Sirignano, Cross River, for respondents.
Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered March 20, 2008, whichdenied defendant's motion for summary judgment dismissing the complaint for failure to meetthe "serious injury" threshold of Insurance Law § 5102 (d), unanimously modified, on thelaw, the motion granted with respect to plaintiff Lucia Elias's direct claim, and granted withrespect to plaintiff Abel Elias's claim only to the extent it alleged injuries preventing him fromperforming substantially all of the material acts that constituted his usual and customaryactivities for not less than 90 days during the first 180 days following the accident, and otherwiseaffirmed, without costs.
The motion court correctly determined that the evidence submitted by defendant failed tomeet his initial burden of establishing prima facie that Abel Elias did not sustain a serious injury(Korpalski v Lau, 17 AD3d536 [2005]). Defendant's own examining orthopedist reported finding evidence of AbelElias's fracture, which he causally related to the accident. A fracture, by definition, constitutes a"serious physical injury" under the statute and hence, defendant's motion was properly denied.
A different result is warranted, however, with respect to the claims under the 90/180category of serious physical injury. In order to establish prima facie entitlement to summaryjudgment under this category of the statute, defendant must provide medical evidence of theabsence of injury precluding 90 days of normal activity during the first 180 days following theaccident (see Sayers v Hot, 23AD3d 453 [2005]). However, we have previously held that a defendant can establish primafacie entitlement to summary judgment on this category without medical evidence by citing otherevidence, such as the plaintiff's own deposition testimony or records demonstrating that he or shewas not prevented from performing all of the substantial activities constituting customary dailyactivities for the prescribed period (seeCopeland v Kasalica, 6 AD3d 253 [2004]). While defendant did not submit plaintiffs'deposition testimony in his original moving papers, relying instead on their bills of particulars,plaintiffs did submit their depositions in their opposition papers and defendant made reference tothat testimony in his reply papers. Therefore, the issue was sufficiently before the court.
Here, Lucia Elias claimed injuries consisting of contusions to her sternum, right rib cage[*2]and right hip, and that she was confined to bed for one weekand to her home for two weeks after the accident. Abel Elias testified that he was confined tohome for a few days. There is no competent medical evidence before the court demonstratingthat either plaintiff was unable to perform substantially all of their normal activities for at least90 of the first 180 days as a result of the accident (Ponce v Magliulo, 10 AD3d 644 [2004]).
Therefore, defendant's motion with respect to this aspect of the claims should have beengranted. Since this was Lucia Elias's only ground for a serious injury claim, her entire claim withregard to loss of consortium, should have been dismissed. Abel Elias's claim is viable only withregard to his fracture. Concur—Mazzarelli, J.P., Friedman, Gonzalez, Buckley andSweeny, JJ.