| Alvarez v Dematas |
| 2009 NY Slip Op 06227 [65 AD3d 598] |
| August 18, 2009 |
| Appellate Division, Second Department |
| Janet Alvarez, Appellant, v Joy C. Dematas,Respondent. |
—[*1] Buratti, Kaplan, McCarthy & McCarthy, Yonkers, N.Y. (Cristin E. Calvi of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Westchester County (Nicolai, J.), entered August 12, 2008, which grantedthe defendant's motion for summary judgment dismissing the complaint on the ground that shedid not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and, ineffect, denied, as academic, her cross motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, the defendant's motion forsummary judgment dismissing the complaint is denied, and the matter is remitted to the SupremeCourt, Westchester County, to determine the plaintiff's cross motion on the merits.
The defendant failed to meet her 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 defendant's motion papers failed to adequatelyaddress the plaintiff's claim, clearly set forth in her bill of particulars, that she sustained amedically determined injury or impairment of a nonpermanent nature which prevented her fromperforming substantially all of the material acts which constituted her usual and customary dailyactivities for not less than 90 days during the 180 days immediately following the subjectaccident (see Smith v Quicci, 62AD3d 858 [2009]; Alexandre vDweck, 44 AD3d 597 [2007]; Sayers v Hot, 23 AD3d 453, 454 [2005]). The subject accidentoccurred on March 25, 2006. In her bill of particulars, the plaintiff alleged that she was confinedto her home as a result of the accident for one year thereafter. The medical reports of Dr. S.W.Bleifer and Dr. Robert Costello, submitted in support of the defendant's motion, established thatapproximately seven months after the accident, the plaintiff had not returned to work. Alsosubmitted on the motion was the medical report of Dr. Martin Barschi, the defendant's examiningorthopedic surgeon, who examined the plaintiff one year and five months after the accident, andwho noted that the plaintiff was unable to return to work after the accident. In addition, in thereports, the doctors also failed to relate their findings to this category of serious injury for theperiod of time immediately following the accident. Moreover, in his report, Dr. Barschi clearlyset forth significant limitations in the range [*2]of motion of theplaintiff's cervical spine (see Landmanv Sarcona, 63 AD3d 690 [2009]; Bagot v Singh, 59 AD3d 368 [2009]; Hurtte v Budget Roadside Care, 54AD3d 362 [2008]; Jenkins v MiledHacking Corp., 43 AD3d 393 [2007]; Bentivegna v Stein, 42 AD3d 555, 556 [2007]; Zamaniyan v Vrabeck, 41 AD3d472, 472-473 [2007]). Accordingly, the Supreme Court should have denied the defendant'smotion for summary judgment regardless of the sufficiency of the plaintiff's opposing papers (Landman v Sarcona, 63 AD3d690 [2009]; see Smith vQuicci, 62 AD3d 858 [2009]).
In light of our determination that the defendant's motion for summary judgment should havebeen denied, we remit the matter to the Supreme Court, Westchester County, to determine theplaintiff's cross motion on the merits (see Busljeta v Plandome Leasing, Inc., 57 AD3d 469, 470 [2008]).
The defendant's remaining contention is without merit. Rivera, J.P., Dillon, Covello, Eng andHall, JJ., concur.