| Negassi v Royle |
| 2009 NY Slip Op 06816 [65 AD3d 1311] |
| September 29, 2009 |
| Appellate Division, Second Department |
| Daniel Negassi, Appellant, v Harry H. Royle et al.,Respondents. |
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In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Queens County (Grays, J.), dated April16, 2008, as granted that branch of the defendants' motion which was for summary judgmentdismissing the complaint 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, on the law, with costs, thatbranch of the defendants' motion which was for summary judgment dismissing the complaint onthe ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) is denied, and the complaint is reinstated.
The plaintiff alleges that while riding a bicycle on April 28, 2005, in the Village ofHempstead, he was struck by a motor vehicle owned by the defendant Hofstra University andoperated by the defendant Harry H. Royle, and sustained injuries as a result thereof. After theplaintiff commenced this action, the defendants moved for summary judgment dismissing thecomplaint on the ground, inter alia, that the plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d).
The defendants moved for summary judgment dismissing the complaint on the ground, interalia, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d). However, the defendants did not address the plaintiff's claim, clearly set forthin 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 subject accident (see Rahman v Sarpaz, 62 AD3d979 [2009]; Smith v Quicci, 62 AD3d 858 [2009]; Carr v KMO Transp., Inc., 58AD3d 783 [2009]; Shaw v Jalloh, 57 AD3d 647 [2008]; Alexandre v Dweck, 44AD3d 597 [2007]). In his bill of particulars dated approximately 14 months after the subjectaccident, the plaintiff stated that as a result of and since the subject accident, he was partiallyconfined to his home and unable to work. In his deposition, the plaintiff testified that as a resultof the subject accident, he had been unable to work. The defendants' orthopedic surgeon, Dr.Andrew Weiss, conducted his independent examination of the plaintiff on January 11, 2007,more than 1½ years after the accident, yet failed to address this category of serious injuryfor the period [*2]of time immediately following the accident.Accordingly, the defendants did not meet their prima facie burden of showing that as a result ofthe subject accident, the plaintiff did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002];Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; Rahman v Sarpaz, 62 AD3d 979[2009]; Smith v Quicci, 62 AD3d 858 [2009]; Carr v KMO Transp., Inc., 58AD3d 783 [2009]).
Since the defendants failed to meet their prima facie burden, we need not consider whetherthe plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Carr vKMO Transp., Inc., 58 AD3d 783 [2009]; Coscia v 938 Trading Corp., 283 AD2d538 [2001]). Skelos, J.P., Santucci, Belen and Chambers, JJ., concur.