| Rasporskaya v New York City Tr. Auth. |
| 2010 NY Slip Op 03892 [73 AD3d 727] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Stella Rasporskaya, Appellant, v New York City TransitAuthority et al., Respondents. |
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In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Richmond County (Minardo, J.), enteredJune 29, 2009, as denied that branch of her motion which was for summary judgment on theissue of serious injury.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff demonstrated her entitlement to judgment as a matter of law by establishing,prima facie, that she sustained a serious injury under the 90/180 day category set forth underInsurance Law § 5102 (d) (cf. Shifren v Scheiner, 269 AD2d 381 [2000]).However, in opposition, the defendants raised a triable issue of fact as to whether the plaintiff,who alleged that she sustained, inter alia, an injury to her right shoulder as a result of the subjectaccident, had a medically-determined injury that prevented her from performing substantially allof the material acts constituting her usual and customary daily activities during at least 90 out ofthe first 180 days following the subject accident (cf. Knox v Lennihan, 65 AD3d 615, 616 [2009]). The defendantsalso raised a triable issue of fact as to whether, if the plaintiff did have such an injury, it wassustained in an accident that occurred approximately three months prior to the subject accident,and in which the plaintiff sustained injuries, inter alia, to her right shoulder (cf. Moses v Gelco Corp., 63 AD3d548, 548-549 [2009]). Accordingly, the Supreme Court properly denied that branch of theplaintiff's motion which was for summary judgment on the issue of serious injury. Fisher, J.P.,Covello, Balkin, Leventhal and Lott, JJ., concur.