| Strilcic v Paroly |
| 2010 NY Slip Op 06083 [75 AD3d 542] |
| July 13, 2010 |
| Appellate Division, Second Department |
| Melissa A. Strilcic, Appellant, v Thomas M. Paroly,Respondent. |
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In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Diamond, J.), entered August 14, 2009, which granted thedefendant's motion for summary judgment dismissing the complaint on the ground that she didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
Contrary to the Supreme Court's determination, the defendant failed to meet his prima facieburden of showing that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent ACar Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Thedefendant's motion papers failed to adequately address the plaintiff's claim, clearly set forth inher bill of particulars, that she sustained 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 not less than 90 days during the180 days immediately following the subject accident (hereinafter the 90/180-day category) (see Encarnacion v Smith, 70 AD3d628 [2010]; Alvarez vDematas, 65 AD3d 598 [2009]; Smith v Quicci, 62 AD3d 858 [2009]; Alexandre v Dweck, 44 AD3d597 [2007]; Sayers v Hot, 23AD3d 453, 454 [2005]). The subject accident occurred on August 8, 2007. In her secondsupplemental bill of particulars, the plaintiff alleged that, since the subject accident occurred, shehas been unable to return to work. The medical report of Dr. Leon Sultan, the defendant'sexamining orthopedic surgeon, who examined the plaintiff one year and three months after thesubject accident, noted that the plaintiff did not return to her two part-time jobs after the subjectaccident. In addition, the plaintiff was examined by Dr. Freddie M. Marton, the defendant'sexamining neurologist, on October 23, 2008. Both Dr. Sultan and Dr. Marton failed to relatetheir findings to the 90/180-day category of serious injury for the period of time immediatelyfollowing the subject accident.
Since the defendant failed to meet his prima facie burden, it is unnecessary to [*2]consider whether the papers submitted by the plaintiff in oppositionwere sufficient to raise a triable issue of fact (see Encarnacion v Smith, 70 AD3d at 628;Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Dillon, J.P., Santucci, Balkin, Belenand Sgroi, JJ., concur.