| Miller v Bah |
| 2009 NY Slip Op 00513 [58 AD3d 815] |
| January 27, 2009 |
| Appellate Division, Second Department |
| Harold Miller, Appellant, v Mamadou Bah,Respondent. |
—[*1] Robert J. Adams, Jr., Garden City, N.Y. (Maryellen David of counsel), forrespondent
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.), datedDecember 13, 2007, as granted the defendant's motion for summary judgment dismissing thecomplaint on the ground that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendant's motion for summary judgment dismissing the complaint is denied.
Contrary to the Supreme Court's determination, the defendant failed to meet his prima facieburden 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 Yung v Eager, 51 AD3d 638[2008]; cf. Gaddy v Eyler, 79 NY2d 955, 958 [1992]). In his verified bill of particulars,the plaintiff claimed that, as a result of the accident, he "was incapacitated from his employmentfrom June 28, 2004 through October 4, 2004 and intermittently thereafter." Nevertheless, thedefendant failed to offer evidence sufficient to establish, prima facie, that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d) by reason of amedically-determined injury or impairment of a nonpermanent nature which prevented him fromperforming substantially all of the material acts which constituted his usual and customary dailyactivities for not less than 90 days during the 180 days immediately following the accident. Thedefendant's neurologist and orthopedic surgeon conducted examinations of the plaintiff onJanuary 2, 2007, nearly 2½ years after the accident. However, neither expert related hisfindings to the claim that the plaintiff was out of work for more than 90 days immediatelyfollowing accident (see Alexandre vDweck, 44 AD3d 597 [2007]; Bozza v O'Neill, 43 AD3d 1094, 1096 [2007]). Inasmuch as thedefendant did not meet his prima facie burden, this Court need not consider whether theplaintiff's opposition papers were sufficient to raise a triable issue of fact (see Alexandre vDweck, 44 AD3d at 597; Bozza v O'Neill, 43 AD3d at 1096). Fisher, J.P., Covello,Balkin and Belen, JJ., concur.