| Perez v Johnson |
| 2010 NY Slip Op 03093 [72 AD3d 777] |
| April 13, 2010 |
| Appellate Division, Second Department |
| Jose Tomas Perez, Appellant, v Lamont E. Johnson et al.,Respondents. |
—[*1] Martyn, Toher & Martyn, Mineola, N.Y. (Christine J. Hill of counsel), forrespondents.
In an action to recover damages for personal injuries and property damage, the plaintiffappeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County(Woodard, J.), entered September 26, 2008, as granted that branch of the defendants' motionwhich was for summary judgment dismissing the complaint insofar as asserted against thedefendant Lamont E. Johnson on the ground that the plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendants' motion which was for summary judgment dismissing the complaintinsofar as asserted against the defendant Lamont E. Johnson on the ground that the plaintiff didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d) is denied.
On March 15, 2006, at the intersection of Greenwich Street and Jerusalem Avenue inHempstead, an automobile owned and driven by the plaintiff collided with an automobile leasedby the defendant Lamont E. Johnson. The accident allegedly resulted in injuries to the plaintiffand damage to his automobile. The plaintiff commenced this action against Johnson and thelessor of the car driven by Johnson. After issue was joined, the defendants moved for summaryjudgment dismissing the complaint, inter alia, on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d). The Supreme Courtgranted the motion. The plaintiff appeals from so much of the Supreme Court's order as grantedthat branch of the defendants' motion which was for summary judgment dismissing thecomplaint insofar as asserted against Johnson. We reverse.
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 motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]).The motion papers failed to adequately address the plaintiff's claim, clearly set forth in his bill ofparticulars, that he sustained a medically determined injury or impairment of a nonpermanentnature which prevented him from performing substantially all of the material acts whichconstituted his usual and customary daily activities for not less than 90 days during the 180 daysimmediately following the subject accident (see Alvarez v Dematas, 65 [*2]AD3d 598, 599 [2009]). In that bill of particulars, the plaintiffalleged that he was incapacitated from his employment as a landscaper for six months followingthe accident. Notably, the affirmed medical report prepared by the defendants' medical expertfailed to relate his findings to this category of serious injury for the period of time immediatelyfollowing the accident (id. at 599-600). Inasmuch as the defendants failed to meet theirprima facie burden, we need not consider the sufficiency of the plaintiff's opposition papers(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985];Mariaca-Olmos v Mizrhy, 226 AD2d 437, 438 [1996]). Fisher, J.P., Dillon, Dickersonand Belen, JJ., concur. [Prior Case History: 2008 NY Slip Op 32662(U).]