| Rahman v Sarpaz |
| 2009 NY Slip Op 04220 [62 AD3d 979] |
| May 26, 2009 |
| Appellate Division, Second Department |
| Mohammed Rahman, Appellant, v Kharram Sarpaz et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovitz, P.C., New York, N.Y. (Stacy R. Seldin ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Jacobson, J.), dated March 12, 2008, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that he 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 is denied.
The defendants did not meet their prima facie burden of showing that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of thesubject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). The defendants' motion papers did not adequatelyaddress the plaintiff's claim, clearly set forth in his bill of particulars, that he sustained 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 subjectaccident (see Carr v KMO Transp.,Inc., 58 AD3d 783 [2009]; Jensen v Nicmanda Trucking, Inc., 47 AD3d 769 [2008]; Alexandre v Dweck, 44 AD3d597 [2007]; Sayers v Hot, 23AD3d 453, 454 [2005]). The subject accident occurred on November 8, 2003, and theplaintiff was not examined by the defendants' experts, Dr. Guoping Zhou and Dr. Michael P.Rafiy, until September 28, 2007, approximately three years and 10 months after the subjectaccident. The plaintiff testified at his deposition that he missed 9½ months of work as aresult of the subject accident, which was noted in the reports of Dr. Zhou and Dr. Rafiy. Dr.Zhou and Dr. Rafiy did not address this category of serious injury in their respective reports (see Carr v KMO Transp., Inc., 58AD3d 783 [2009]; Sayers vHot, 23 AD3d 453 [2005]).
While the defendants relied on the affirmed medical report of Dr. David L. Milbauer, theirradiologist, Dr. Milbauer failed to establish that the plaintiff did not sustain a serious injuryunder the 90/180-day category. Dr. Milbauer merely provided his opinion based on his review ofthe plaintiff's [*2]lumbar and cervical spine magnetic resonanceimaging films dated March 8, 2004. The plaintiff in this case claimed more than spinal injuries inhis bill of particulars; he also claimed left knee injuries as a result of the subject accident. Dr.Milbauer's reports do not address the plaintiff's left knee or the 90/180-day category of seriousinjury (see Carr v KMO Transp.,Inc., 58 AD3d 783 [2009]; Jensen v Nicmanda Trucking Inc., 47 AD3d 769 [2008]).
Since the defendants failed to meet their prima facie burden, it is unnecessary to considerwhether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Carr v KMO Transp., Inc., 58AD3d 783 [2009]; Sayers vHot, 23 AD3d 453 [2005]). Mastro, J.P., Fisher, Miller, Dickerson and Chambers, JJ.,concur.