| Bright v Moussa |
| 2010 NY Slip Op 03261 [72 AD3d 859] |
| April 20, 2010 |
| Appellate Division, Second Department |
| Melanie Bright, Appellant, v Noha Moussa et al.,Respondents. |
—[*1] Kay and Gray, Westbury, N.Y. (William Gitter of counsel), for respondents Noha Moussaand Maher Moussa (no brief filed). Votto & Cassata, LLP, Staten Island, N.Y. (Serafina M. Cassata of counsel), for respondentsThomas Parish and Village Limo, Inc.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Richmond County (McMahon, J.), dated April 21, 2009, which granted themotion of the defendants Thomas Parish and Village Limo, Inc., and the separate motion of thedefendants Noha Moussa and Maher Moussa, for summary judgment dismissing the complaintinsofar as asserted against them on the ground that she did not sustain a serious injury within themeaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with one bill of costs, and the defendants'separate motions for summary judgment dismissing the complaint on the ground that the plaintiffdid not sustain a serious injury within the meaning of Insurance Law § 5102 (d) aredenied.
The defendants failed to meet their prima facie burdens 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' respective motion papers failed toadequately address the plaintiff's claim, clearly set forth 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 subject accident (seeAlvarez v Dematas, 65 AD3d 598 [2009]; Smith v Quicci, 62 AD3d 858 [2009]; Alexandre v Dweck, 44 AD3d597 [2007]; Sayers v Hot, 23AD3d 453, 454 [2005]).
While the defendants relied on the plaintiff's magnetic resonance imaging reports [*2]concerning the cervical and lumbar regions of her spine and herright knee, these reports were insufficient to meet their prima facie burdens. These reports dealtsolely with the cervical and lumbar regions of the plaintiff's spine, as well as her right knee,whereas, in her bill of particulars, she alleged additional injuries to other regions of her body,such as her left knee and right shoulder (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]).
Since the defendants failed to meet their respective prima facie burdens, it is unnecessary todetermine whether the papers submitted by the plaintiff in opposition were sufficient to raise atriable issue of fact (see Menezes v Khan, 67 AD3d at 654; Alvarez v Dematas,65 AD3d at 600; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Rivera, J.P.,Florio, Miller, Chambers and Roman, JJ., concur.