| Menezes v Khan |
| 2009 NY Slip Op 07991 [67 AD3d 654] |
| November 4, 2009 |
| Appellate Division, Second Department |
| Cleber C. Menezes, Respondent, v Sultan A. Khan et al.,Appellants. |
—[*1] Monaco & Monaco, LLP, Brooklyn, N.Y. (Frank A. Delle Donne of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Queens County (Kitzes, J.), entered March 18, 2009, which denied theirmotion for summary judgment dismissing the complaint on the ground that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendants failed to 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 did not address the plaintiff's claim,clearly set forth in his bill of particulars, that he sustained a medically-determined injury orimpairment of a nonpermanent nature which prevented him from performing substantially all ofthe material acts which constituted his usual and customary daily activities for not less than 90days during the 180 days immediately following the subject accident (see Negassi v Royle, 65 AD3d1311 [2009]; Alvarez vDematas, 65 AD3d 598 [2009]; Rahman v Sarpaz, 62 AD3d 979, 980 [2009]; Smith v Quicci, 62 AD3d 858,859 [2009]). The plaintiff alleged in his bill of particulars that he missed three months of work asa result of the accident, and the defendants' neurologist and orthopedist were both advised of thisallegation. However, neither of these experts, who did not examine the plaintiff until more thanthree years after the accident, related his findings to the 90/180-day category of serious injury.The affirmed medical reports of the defendants' radiologist also failed to establish that theplaintiff did not sustain a serious injury as a result of the accident. Although the radiologistopined that the plaintiff had not suffered any traumatic injury to his cervical and lumbar spines,her reports did not address any of the other injuries alleged in the plaintiff's bill of particulars,including bilateral shoulder and knee injuries (see Takaroff v A.M. USA, Inc., 63 AD3d 1142, 1143 [2009];Rahman v Sarpaz, 62 AD3d at 980; Delayhaye v Caledonia Limo & Car Serv., Inc., 61 AD3d 814, 815[2009]; Carr v KMO Transp., Inc.,58 AD3d 783, 784-785 [2009]; Jensen v Nicmanda Trucking, Inc., 47 AD3d 769, 770 [2008]).[*2]
Since the defendants did not sustain their prima facieburden, it is unnecessary to determine whether the papers submitted by the plaintiff in oppositionwere sufficient to raise a triable issue of fact (see Takaroff v A.M. USA, Inc., 63 AD3dat 1144; Rahman v Sarpaz, 62 AD3d at 980). Fisher, J.P., Florio, Angiolillo, Eng andRoman, JJ., concur.