| Ismail v Tejeda |
| 2009 NY Slip Op 06118 [65 AD3d 518] |
| August 4, 2009 |
| Appellate Division, Second Department |
| Kazi Mohammed Ismail, Appellant, v Manuel Tejeda etal., Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, 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 (Schack, J.), dated August 8, 2008, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that theplaintiff did not 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.
The defendants did not meet their prima facie burden of establishing 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, 352 [2002];Gaddy v Eyler, 79 NY2d 955 [1992]). The plaintiff clearly alleged in his bill ofparticulars that he had sustained, inter alia, a medically-determined injury or impairment of anonpermanent nature which prevented him from performing substantially all of the material actsconstituting his usual and customary activities for not less than 90 days during the 180 daysimmediately following the accident. However, the affirmed report of the defendants' examiningphysician did not specifically relate any of his findings to the 90/180-day category of seriousinjury for the relevant time period following the accident, and the defendants did not submit anyother evidence to refute the plaintiff's claim (see Neuburger v [*2]Sidoruk, 60 AD3d650 [2009]; Miller v Bah, 58AD3d 815 [2009]; Scinto vHoyte, 57 AD3d 646 [2008]). Since the defendants failed to meet their prima facieburden with respect to the 90/180-day category of a serious injury, it is unnecessary to examinethe sufficiency of the plaintiff's opposition papers in this regard (see Neuburger vSidoruk, 60 AD3d at 652; Miller v Bah, 58 AD3d at 816; Scinto v Hoyte, 57AD3d at 647).
In light of the foregoing, the defendants' remaining contention has been rendered academic(see Insurance Law § 5102 [d]). Skelos, J.P., Florio, Balkin, Belen and Austin, JJ.,concur.