| Encarnacion v Smith |
| 2010 NY Slip Op 00803 [70 AD3d 628] |
| February 2, 2010 |
| Appellate Division, Second Department |
| Jessica Encarnacion, Respondent, v Kristine M. Smith etal., Defendants, and GC Alarm, Inc., et al., Appellants. |
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In an action to recover damages for personal injuries, the defendants GC Alarm, Inc., andJonathan E. Reilly appeal from an order of the Supreme Court, Kings County (Bayne, J.), datedFebruary 13, 2008, which denied their motion for summary judgment dismissing the complaintinsofar as asserted against them on the ground that the plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
While we affirm the order appealed from, we do so on a ground other than that relied uponby the Supreme Court. The appellants failed to meet their prima facie burden of showing that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d)as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345[2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The appellants' motion papersfailed adequately to address the plaintiff's claim, clearly set forth in her bill of particulars, thatshe sustained a medically-determined injury or impairment of a nonpermanent nature whichprevented her from performing substantially all of the material acts which constituted her usualand customary daily activities for not less than 90 days during the 180 days immediatelyfollowing the subject accident (hereinafter the 90/180-day category) (see Alvarez v Dematas, 65 AD3d598 [2009]; Smith v Quicci, 62AD3d 858 [2009]; Alexandre vDweck, 44 AD3d 597 [2007]; Sayers v Hot, 23 AD3d 453, 454 [2005]). The subject accidentoccurred on June 14, 2004. In her bill of particulars, the plaintiff alleged that, since the subjectaccident, she has been confined to her bed and home, and has been incapacitated and unable towork. The medical report of Dr. Edward Toriello, the appellants' examining orthopedic surgeon,who examined the plaintiff two years and four months after the subject accident, noted that theplaintiff did not return to work due to the injuries sustained in the subject accident. In addition,the plaintiff was examined by Dr. Daniel J. Feuer, the appellants' examining neurologist, onSeptember 19, 2006. Both Dr. Toriello and Dr. Feuer failed to relate their findings to the90/180-day category of serious injury for the period of time immediately following the subjectaccident.[*2]
While the appellants also relied on the affirmed medicalreports of their radiologist, Dr. Alan B. Greenfield, these reports were insufficient to meet theirprima facie burden. Greenfield's reports dealt solely with the cervical and lumbar regions of theplaintiff's spine, whereas, in her bill of particulars, she alleged injuries to parts of her body inaddition to those regions of her spine (see Menezes v Khan, 67 AD3d 654 [2009]; Takaroff v A.M. USA, Inc., 63 AD3d1142, 1143 [2009]; Delayhaye vCaledonia Limo & Car Serv., Inc., 61 AD3d 814, 815 [2009]; Carr v KMO Transp., Inc., 58 AD3d783, 784-785 [2009]; Jensen vNicmanda Trucking, Inc., 47 AD3d 769, 770 [2008]).
The appellants' remaining contentions either are without merit or refer to material that, as theSupreme Court correctly determined, was improperly submitted for the first time with theappellants' reply papers (see CPLR 2214; Klimis v Lopez, 290 AD2d 538[2002]).
Accordingly, the Supreme Court properly denied the appellants' motion for summaryjudgment regardless of the sufficiency of the plaintiff's opposing papers (see Alvarez v Dematas, 65 AD3d598 [2009]). Dillon, J.P., Miller, Balkin, Leventhal and Austin, JJ., concur.