| Carr v KMO Transp., Inc. |
| 2009 NY Slip Op 00492 [58 AD3d 783] |
| January 27, 2009 |
| Appellate Division, Second Department |
| Veleta Carr, Appellant, and Lloyd Trevor Carr, Appellant andCounterclaim Defendant-Respondent, v KMO Transportation, Inc., Defendant andCounterclaim Plaintiff-Respondent, and Jean O. Antoine,Respondent. |
—[*1] Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] ofcounsel), for counterclaim defendant-respondent. Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Holly E. Peck of counsel),for defendant/counterclaim plaintiff-respondent KMO Transportation, Inc.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much an order of the Supreme Court, Queens County (Kitzes, J.), enteredFebruary 25, 2008, as granted the separate motions of the defendants KMO Transportation, Inc.,and Jean O. Antoine for summary judgment dismissing the complaint insofar as asserted againstthem on the ground that the plaintiff Veleta Carr did not sustain a serious injury within themeaning of Insurance Law § 5102 (d), and granted that branch of the motion of LloydTrevor Carr, the defendant on the counterclaim, for summary judgment dismissing the complainton the same ground.
Ordered that the order is reversed insofar as appealed from, on the law, with costs to theplaintiffs payable by the respondents, and the separate motions of the defendants KMOTransportation, Inc., and Jean O. Antoine, and that branch of the motion of the counterclaimdefendant, Lloyd Trevor Carr, which were for summary judgment dismissing the complaint onthe ground that the plaintiff Veleta Carr did not sustain a serious injury within the meaning ofInsurance [*2]Law § 5102 (d) are denied.
The defendants KMO Transportation, Inc., and Jean O. Antoine, as well as theplaintiff/counterclaim defendant Lloyd Trevor Carr (hereinafter collectively the movants), allsought to dismiss the complaint on the ground that the plaintiff Veleta Carr (hereinafter theinjured plaintiff) did not sustain a serious injury within the meaning of Insurance Law §5102 (d) as a result of the subject accident. In support of their separate motions, the movantsrelied on the same submissions. The Supreme Court erred in concluding that those submissionswere sufficient to meet their prima facie burdens of showing that the injured plaintiff did notsustain a serious injury within the meaning of the no-fault statute as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler,79 NY2d 955, 956-957). The motion papers of the respective movants did not adequatelyaddress the injured plaintiff's claim, clearly set forth in her bill of particulars, that she sustained amedically-determined injury or impairment of a nonpermanent nature which prevented her fromperforming substantially all of the material acts which constituted her usual and customary dailyactivities for not less than 90 days during the 180 days immediately following the subjectaccident (see Jensen v NicmandaTrucking, Inc., 47 AD3d 769 [2008]; Alexandre v Dweck, 44 AD3d 597 [2007]; Sayers v Hot, 23 AD3d 453, 454[2005]). The injured plaintiff stated in her bill of particulars that, as a result of the subjectaccident, she was out of work for approximately five months. The subject accident occurred onJune 27, 2005, and the injured plaintiff was not examined by Dr. Edward Weiland or Dr. Yan Q.Sun, experts hired by the defendant TMO Transportation, Inc. (hereinafter TMO), until April 5,2007, approximately one year and nine months after the subject accident. Despite theseallegations of serious injury, the experts did not address this category of serious injury in theirrespective reports (see Jensen vNicmanda Trucking, Inc., 47 AD3d 769 [2008]; Alexandre v Dweck, 44 AD3d 597 [2007]; Sayers v Hot, 23 AD3d 453[2005]).
Although the movants relied on the affirmed medical reports of Dr. Marc Brown, TMO'sradiologist, his conclusions, based upon his review of her magnetic resonance imaging studies,that the injuries noted in the injured plaintiff's cervical and lumbar spine were not the result ofthe subject accident but were the result of preexisting degeneration, were not sufficient toestablish the movants respective prima facie burdens. Dr. Brown's conclusions were insufficientbecause the injured plaintiff alleged not only cervical and lumbar spine injuries in her bill ofparticulars, but also alleged injury to her right shoulder. While Dr. Weiland and Dr. Sun noted intheir respective reports that, on the date of their examinations, the injured plaintiff had full rangeof motion in her right shoulder, those findings were made one year and nine monthspost-accident. There was no opinion offered by any of the experts relied upon by the movants asto whether the injured plaintiff's alleged right shoulder injury prevented her from working forapproximately five months during the first 180 days immediately following the subject accident.Thus, the movants failed to establish their respective prima facie burdens.
Since the movants failed to meet their respective prima facie burdens, it is unnecessary toconsider whether the injured plaintiff's opposition papers were sufficient to raise a triable issueof fact (see Jensen v NicmandaTrucking, Inc., 47 AD3d 769 [2008]; Alexandre v Dweck, 44 AD3d 597 [2007]; Sayers v Hot, 23 AD3d 453[2005]). Mastro, J.P., Fisher, Florio, Carni and Eng, JJ., concur. [See 2008 NY Slip Op30454(U).]