| Udochi v H & S Car Rental Inc. |
| 2010 NY Slip Op 06630 [76 AD3d 1011] |
| September 21, 2010 |
| Appellate Division, Second Department |
| Oluwakemi Udochi, Respondent, v H & S Car RentalIncorporated et al., Appellants. |
—[*1] Lurie & Flatow, P.C., New York, N.Y. (Jay Flatow of counsel), for respondent.
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 (Jacobson, J.), datedFebruary 1, 2010, as denied their motion for summary judgment dismissing the complaint on theground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d).
Ordered that the order is affirmed insofar as appealed from, with costs.
While we affirm the order insofar as appealed from, we do so on a ground other than thatrelied upon by the Supreme Court. The defendants failed to meet their prima facie burden ofshowing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendants'motion papers failed to adequately address the plaintiff's claim, clearly set forth in her bill ofparticulars, that she sustained a medically determined injury or impairment of a nonpermanentnature which prevented her from performing substantially all of the material acts whichconstituted her usual and customary daily activities for not less than 90 days during the 180 daysimmediately following the subject accident (see Strilcic v Paroly, 75 AD3d 542 [2010]; Encarnacion v Smith, 70 AD3d628 [2010]; Alvarez vDematas, 65 AD3d 598 [2009]; Smith v Quicci, 62 AD3d 858 [2009]; Alexandre v Dweck, 44 AD3d 597[2007]; Sayers v Hot, 23 AD3d453, 454 [2005]). The subject accident occurred on January 14, 2004. In her bill ofparticulars, the plaintiff alleged that after the subject accident she was unable to resume workingfor more than five months. She testified at her deposition that she did not return to work untilMay 9, 2005. The plaintiff was examined by Dr. Andrew Miller, an orthopedic surgeon, on April17, 2009, and by Dr. Vladimir Zlatnik, a neurologist, on April 8, 2009. Both Dr. Miller and Dr.Zlatnik failed to relate their findings to this category of serious injury for the period of timeimmediately following the subject accident.
Since the defendants failed to meet their prima facie burden, it is unnecessary to determinewhether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issueof fact (see Strilcic v Paroly, 75 AD3d at 542; Coscia v 938 Trading Corp., 283AD2d 538 [2001]). Skelos, J.P., Santucci, Angiolillo, Hall and Roman, JJ., concur.