| Smith v Quicci |
| 2009 NY Slip Op 04047 [62 AD3d 858] |
| May 19, 2009 |
| Appellate Division, Second Department |
| Anissa Smith, Appellant, v Richard Quicci et al.,Respondents. |
—[*1] James P. Harris, Goshen, N.Y., for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Dutchess County (Pagones, J.), dated June 19, 2008, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that she didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
Contrary to the Supreme Court's determination, the defendants failed to meet their primafacie 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 ACar Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Thedefendants' motion papers failed to adequately address the plaintiff's claim, clearly set forth inher bill of particulars, that she sustained a medically-determined injury or impairment of anonpermanent nature which prevented her from performing substantially all of the material actswhich constituted her usual and customary daily activities for not less than 90 days during the180 days immediately following the subject accident (see Alexandre v Dweck, 44 AD3d 597 [2007]; Sayers v Hot, 23 AD3d 453, 454[2005]). The subject accident occurred October 26, 2005, and the plaintiff did not return to workuntil August 2006. The defendants' neurologist conducted his independent examination of theplaintiff almost two years after [*2]the accident. He failed torelate his findings to this category of serious injury for the period of time immediately followingthe accident. Furthermore, when he examined the plaintiff he merely opined that the plaintiff hadfull range of motion in the cervical spine, yet failed to set forth the objective medical testing heperformed to arrive at that conclusion (see Giammalva v Winters, 59 AD3d 595 [2009]; Stern v Oceanside School Dist., 55AD3d 596 [2008]; Cedillo vRivera, 39 AD3d 453 [2007]; McLaughlin v Rizzo, 38 AD3d 856 [2007]).
Since the defendants failed to meet their prima facie burden, it is unnecessary to considerwhether the papers submitted by the plaintiff in opposition to the defendants' motion weresufficient to raise a triable issue of fact (see Giammalva v Winters, 59 AD3d 595 [2009]; Alexandre v Dweck, 44 AD3d597 [2007]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Spolzino, J.P.,Santucci, Angiolillo, Leventhal and Lott, JJ., concur.