Refuse v Magloire

2011 NY Slip Op 02860 [83 AD3d 685]

April 5, 2011

Appellate Division, Second Department

As corrected through Wednesday, June 8, 2011

Alourdes Refuse et al., Respondents, v Lawrence Magloire,Appellant.

—[*1]James G. Bilello, Westbury, N.Y. (Patricia McDonagh of counsel), for appellant.

Billig Law, P.C., New York, N.Y. (Darin Billig of counsel), for respondents.

In an action to recover damages for personal injuries and property damage, the defendantappeals from an order of the Supreme Court, Kings County (Silber, J.), dated July 15, 2010,which granted the plaintiffs' motion for summary judgment on the issue of serious injury.

Ordered that the order is affirmed, with costs.

The plaintiffs demonstrated their entitlement to judgment as a matter of law by establishing,prima facie, that they each sustained a serious injury within the 90/180-day category of seriousinjury under Insurance Law § 5102 (d) (see Rasporskaya v New York City Tr. Auth., 73 AD3d 727 [2010];cf. Gavin v Sati, 29 AD3d 734,735 [2006]; Pierre v Nanton, 279 AD2d 621, 622 [2001]; Krakofsky v Fox-Rizzi,273 AD2d 277, 278 [2000]; Shifren v Scheiner, 269 AD2d 381 [2000]). In opposition,the defendant failed to raise a triable issue of fact as to whether the plaintiffs, who both allegedthat they sustained injuries to, inter alia, the cervical and lumbar regions of their spines, each hada medically-determined injury that prevented them from performing substantially all of thematerial acts constituting their usual and customary daily activities during not less than 90 daysduring the first 180 days immediately following the subject accident (see Insurance Law§ 5102 [d]). In his reports detailing his medical findings from his recent examinations ofthe plaintiffs, the defendant's expert orthopedic surgeon, Alan J. Zimmerman, failed to relatethose findings to the plaintiffs' 90/180-day serious injury claims, which were clearly set forth inthe bill of particulars. Thus, the reports were not sufficient to raise a triable issue of fact inopposition to the plaintiffs' prima facie showing (cf. Lewis v John, 81 AD3d 904, 905 [2011]; Mugno v Juran, 81 AD3d 908[2011]; Reynolds v Wai SangLeung, 78 AD3d 919, 920 [2010]). Accordingly, the Supreme Court properly grantedthe plaintiffs' motion for summary judgment on the issue of serious injury. Dillon, J.P.,Leventhal, Belen, Austin and Cohen, JJ., concur.