| Reynolds v Wai Sang Leung |
| 2010 NY Slip Op 08550 [78 AD3d 919] |
| November 16, 2010 |
| Appellate Division, Second Department |
| Donovan Reynolds, Respondent, v Wai Sang Leung,Appellant. |
—[*1] Ornstein & Ornstein, P.C., Brooklyn, N.Y. (Anthony T. Santora of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Schack, J.), dated April 9, 2010, which denied his motion forsummary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
While we affirm the order appealed from, we do so on a ground other than that relied uponby the Supreme Court. The defendant failed to meet his prima facie burden of showing that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) asa result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002];Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendant's motion papers failed toadequately address the plaintiff's claim, clearly set forth in his bill of particulars, that he sustaineda medically-determined injury or impairment of a nonpermanent nature which prevented himfrom performing substantially all of the material acts which constituted his usual and customarydaily activities for not less than 90 days during the 180 days immediately following the subjectaccident (hereinafter the 90-180 category of serious injury) (see Udochi v H & S Car Rental Inc., 76 AD3d 1011 [2010]; Strilcic v Paroly, 75 AD3d 542[2010]; Bright v Moussa, 72 AD3d859 [2010]; Encarnacion vSmith, 70 AD3d 628 [2010]; Negassi v Royle, 65 AD3d 1311 [2009]; Alvarez v Dematas, 65 AD3d 598[2009]; Smith v Quicci, 62 AD3d858 [2009]; Alexandre vDweck, 44 AD3d 597 [2007]; Sayers v Hot, 23 AD3d 453 [2005]).
The subject accident occurred on October 31, 2006. In his supplemental bill of particulars,the plaintiff alleged that, after the subject accident, he was unable to resume working for morethan 110 weeks. In support of his motion, the defendant submitted affirmed medical reports of aneurologist who examined the plaintiff on April 29, 2009, and of an orthopedic surgeon whoexamined the plaintiff on April 28, 2009. Although both physicians addressed the issue ofwhether the plaintiff sustained a significant limitation of use of a body function or system or apermanent consequential limitation of use of a body organ or member, they failed to relate theirfindings to the 90-180 category of serious injury for the period of time [*2]immediately following the subject accident.
Since the defendant failed to meet his 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 543; Coscia v 938 Trading Corp., 283AD2d 538 [2001]). Mastro, J.P., Florio, Dickerson, Belen and Lott, JJ., concur.