| Marmer v IF USA Express, Inc. |
| 2010 NY Slip Op 04151 [73 AD3d 868] |
| May 11, 2010 |
| Appellate Division, Second Department |
| Melanie M. Marmer, Respondent, v IF USA Express, Inc.,et al., Appellants. |
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In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Schack, J.), datedDecember 4, 2009, as denied that branch of their motion which was for summary judgmentdismissing so much of the complaint as was predicated on allegations that the plaintiff sustaineda medically-determined injury or impairment of a nonpermanent nature which prevented herfrom performing substantially all of the material acts which constituted her usual and customarydaily activities for a period of not less than 90 days during the 180-day period immediatelyfollowing the subject motor vehicle accident.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendants did not meet their prima facie burden of showing that the plaintiff did notsustain a serious injury as a result of the subject accident. Specifically, the defendants failed toshow that the plaintiff did not sustain a medically-determined injury or impairment of anonpermanent nature which prevented her from performing substantially all of the material actswhich constituted her usual and customary daily activities for a period of not less than 90 daysduring the 180-day period immediately following the subject motor vehicle accident, asarticulated in Insurance Law § 5102 (d) (hereinafter the 90/180-day category) (seeToure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955,956-957 [1992]). In the plaintiff's bill of particulars, she clearly set forth that, as a result of thesubject motor vehicle accident, she sustained, inter alia, a serious injury under the 90/180-daycategory of Insurance Law § 5102 (d). The affirmed reports of the defendants' examiningphysicians did not specifically relate any of their findings to this 90/180-day category of seriousinjury (see Negassi v Royle, 65AD3d 1311 [2009]; Ismail vTejeda, 65 AD3d 518 [2009]; Neuburger v Sidoruk, 60 AD3d 650 [2009]; Miller v Bah, 58 AD3d 815[2009]; Scinto v Hoyte, 57 AD3d646 [2008]). Further, the unsigned deposition transcript of the plaintiff, which thedefendants submitted in support of their motion, did not constitute admissible evidence in lightof the defendants' failure to demonstrate that the transcript was forwarded to the plaintiff for herreview pursuant to CPLR 3116 (a) (seeMartinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901 [2008]; McDonald v Mauss, 38 AD3d 727[2007]; Pina v Flik Intl. Corp., 25AD3d 772 [2006]; Santos v IntownAssoc., 17 AD3d 564 [2005]). Since the defendants [*2]failed to meet their prima facie burden, we need not considerwhether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Negassi v Royle, 65 AD3d1311 [2009]; Ismail v Tejeda,65 AD3d 518 [2009]; Neuburger vSidoruk, 60 AD3d 650 [2009]; Miller v Bah, 58 AD3d 815 [2009]). Mastro, J.P., Santucci,Dickerson, Belen and Austin, JJ., concur.