| Delayhaye v Caledonia Limo & Car Serv., Inc. |
| 2009 NY Slip Op 03127 [61 AD3d 814] |
| April 21, 2009 |
| Appellate Division, Second Department |
| Michele Delayhaye, Plaintiff, and Colville Elson,Appellant, v Caledonia Limo & Car Service, Inc., et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin ofcounsel), for respondents Caledonia Limo & Car Service, Inc., and Lincoln O. Phillips. Stockschlaeder, McDonald & Sules, P.C., New York, N.Y. (Richard T. Sules of counsel), forrespondents Nakia Trent Griffin and Yaneen S. Griffin.
In a consolidated action to recover damages for personal injuries, the plaintiff Colville Elsonappeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County(Knipel, J.), dated October 26, 2007, as granted the respective motions of the defendantsCaledonia Limo & Car Service, Inc., and Lincoln O. Phillips, and the defendants Nakia TrentGriffin and Yaneen S. Griffin, for summary judgment dismissing the complaint insofar asasserted by him against them on the ground that he did not sustain a serious injury within themeaning of Insurance Law § 5102 (d).
Ordered that the order is reversed insofar as appealed from, with one bill of costs, and thedefendants' motions for summary judgment dismissing the complaint insofar as asserted againstthem by the plaintiff Colville Elson are denied.
The Supreme Court erred in granting the defendants' motions for summary judgmentdismissing the complaint insofar as asserted against them by the plaintiff Colville Elson(hereinafter the appellant). In support of their motion, the defendants Caledonia Limo & CarService, Inc., and Lincoln O. Phillips (hereinafter together Caledonia) relied on, inter alia, thereport of the appellant's treating physician, Dr. Glenton A. Smith, dated October 2, 2004. In thatreport, Dr. Smith noted the [*2]existence of significantlimitations in the ranges of motion of the appellant's lumbar and cervical spines (see Guerrero v Bernstein, 57 AD3d845 [2008]). The defendants Nakia Trent Griffin and Yaneen S. Griffin relied on theaffirmed medical reports of their examining orthopedic surgeon and neurologist, in which theynoted significant limitations in the range of motion of the appellant's lumbar spine (see Giacomaro v Wilson, 58 AD3d802 [2009]; Hurtte v BudgetRoadside Care, 54 AD3d 362 [2008]; Jenkins v Miled Hacking Corp., 43 AD3d 393 [2007]; Bentivegna v Stein, 42 AD3d 555[2007]; Zamaniyan v Vrabeck, 41AD3d 472 [2007]).
Furthermore, the defendants' motion papers never addressed the appellant's claim, clearly setforth in his bill of particulars, that he sustained a medically-determined injury or impairment of anonpermanent nature which prevented him from performing substantially all of the material actswhich constituted his usual and customary daily activities for not less than 90 days during the180 days immediately following the accident (see Colacino v Andrews, 50 AD3d 615 [2008]; Greenidge v Righton Limo, Inc., 43AD3d 1109 [2007]; Sayers vHot, 23 AD3d 453 [2005]). Here, the subject accident occurred on April 6, 2004, andthe appellant alleged that he was out of work for three months as a result thereof. The experts forthe defendants who examined the appellant did so more than 2½ years after the accident.None of those experts related their findings to this category of serious injury for the period oftime immediately following the subject accident.
While Caledonia also relied on the affirmed medical report of Dr. Audrey Eisenstadt, theirradiologist, it failed to establish that the appellant did not sustain a serious injury. In her report,Dr. Eisenstadt merely provided her opinion concerning her review of the appellant's lumbarspine magnetic resonance imaging films dated April 13, 2004. The appellant claimed more thanlumbar injuries in his bill of particulars, and Dr. Eisenstadt's report does not address those otherclaims, such as cervical spine injuries (see Carr v KMO Transp., Inc., 58 AD3d 783 [2009]; Jensen v Nicmanda Trucking, Inc., 47AD3d 769 [2008]).
Since the defendants did not meet their respective prima facie burdens, it is unnecessary todecide whether the papers submitted by the appellant in opposition were sufficient to raise atriable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Spolzino,J.P., Santucci, Angiolillo and Leventhal, JJ., concur.