| Santiago v Bhuiyan |
| 2010 NY Slip Op 01890 [71 AD3d 485] |
| March 11, 2010 |
| Appellate Division, First Department |
| Alejandro Santiago et al., Respondent, v Omar Bhuiyan etal., Appellants, and Edwin M. Lopez et al., Respondents. |
—[*1] PeÑa & Kahn, PLLC, Bronx (Diane Welch Bando of counsel), for Alejandro Santiagoand Gretchen Rosario, respondents. Jeffrey K. Kestenbaum, Brooklyn, for Yvette Lopez, respondent. Richard T. Lau & Associates, Jericho (Gene W. Wiggins of counsel), for Edwin M. Lopezand Pentecostal Church Freed by Jesus Christ, respondents.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered August 19, 2009, which,to the extent appealed from as limited by the briefs, denied defendants-appellants' motions forsummary judgment dismissing the complaints of plaintiffs Rosario and Lopez, unanimouslyreversed, on the law, without costs, the motions granted, said complaints dismissed as againstdefendants-appellants, and, upon a search of the record, as against the remaining defendants' aswell. The Clerk is directed to enter judgment in favor of all defendants dismissing saidcomplaints.
Defendants-appellants met their initial burden of presenting objective medical evidence thatthe injured plaintiffs had not suffered a permanent consequential limitation of a body organ or asignificant limitation of use of a body function or system through the affirmed reports of theirmedical experts (see Insurance Law § 5102 [d]; Christian v Waite, 61 AD3d 581[2009]; Blackmon v Dinstuhl, 27AD3d 241 [2006]). The burden having shifted, summary judgment was warranted becauseplaintiffs' experts failed to sufficiently raise triable issues of fact.
Plaintiffs also failed to raise triable issues of fact as to whether they were incapacitated fromperforming substantially all of their usual and customary activities for at least 90 of the first 180days after the accident, having failed to offer the requisite competent medical proof tosubstantiate their claims (see Antonio vGear Trans Corp., 65 AD3d 869 [2009]; Glover v Capres Contr. Corp., 61 AD3d 549 [2009]; Lattan v Gretz Tr. Inc., 55 AD3d449 [2008]).
Upon a search of the record pursuant to CPLR 3212 (b), we find that the nonappealing [*2]defendants' summary judgment motions should also be granted (see Nickolson v Albishara, 61 AD3d542 [2009]; Lopez v Simpson,39 AD3d 420 [2007]). Concur—Mazzarelli, J.P., Saxe, Moskowitz, Acosta andRenwick, JJ.