| Rouach v Betts |
| 2010 NY Slip Op 02533 [71 AD3d 977] |
| March 23, 2010 |
| Appellate Division, Second Department |
| Gina Diana Rouach et al., Appellants, v Catherine L. Bettset al., Respondents. |
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In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Kings County (Velasquez, J.), dated March 25, 2009, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that theplaintiff Gina Diana Rouach did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
Contrary to the Supreme Court's determination, the defendants failed to meet their primafacie burden of showing that the plaintiff Gina Diana Rouach (hereinafter the injured plaintiff)did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a resultof the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002];Gaddy v Eyler, 79 NY2d 955 [1992]). The defendants' motion papers failed toadequately address the injured plaintiff's claim, clearly alleged in her bill of particulars, that shesustained 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 accident (hereinafter the 90/180 category) (see Encarnacion v Smith, 70AD3d 628 [2010]; Alvarez v Dematas, 65 AD3d 598 [2009]; Smith v Quicci, 62AD3d 858 [2009]; Alexandre v Dweck, 44 AD3d 597 [2007]; Sayers v Hot, 23AD3d 453, 454 [2005]). The injured plaintiff was not examined by the defendants' examiningneurologist and orthopedist until more than one year after the accident, and both failed to relatetheir findings to the 90/180 category of serious injury for the period of time immediatelyfollowing the accident. The defendants' submissions failed to show that the injured plaintiff,during this time, was able to perform substantially all of the material acts which constituted herusual and customary daily activities for not less than 90 days during the 180 days immediatelyfollowing the accident.
Since the defendants failed to meet their prima facie burden, it is unnecessary to considerwhether the papers submitted by the plaintiffs in opposition to the defendants' motion weresufficient to raise a triable issue of fact (see Encarnacion v Smith, 70 AD3d 628 [2010];Alvarez v Dematas, 65 AD3d 598 [2009]; Smith v Quicci, 62 AD3d 858 [2009];Alexandre v Dweck, 44 AD3d 597 [2007]; Sayers v Hot, 23 AD3d 453 [2005]).Mastro, J.P., Santucci, Dickerson, Belen and Austin, JJ., concur.