| Cabey v Leon |
| 2011 NY Slip Op 04617 [84 AD3d 1295] |
| May 31, 2011 |
| Appellate Division, Second Department |
| Nadine Cabey, Appellant, v Luis Leon et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel),for respondent Luis Leon. Alan B. Brill, P.C., Suffern, N.Y. (Donna M. Brautigam of counsel), for respondents PatriciaCaseres and Jose Caseres.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Rockland County (Berliner, J.), dated February 4, 2010, which denied hermotion for summary judgment on the issue of serious injury and granted the separate crossmotions of the defendant Luis Leon and the defendants Patricia Caseres and Jose Caseres forsummary judgment dismissing the complaint insofar as asserted against each of them on theground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d).
Ordered that the order is modified, on the law and the facts, by deleting the provision thereofgranting the defendants' separate cross motions for summary judgment dismissing the complaintinsofar as asserted against each of them, and substituting therefore a provision denying the crossmotions; as so modified, the order is affirmed, without costs or disbursements.
On September 20, 2007, the plaintiff allegedly was injured as a result of a two-vehicleaccident that occurred in Rockland County. At the time of the accident, the plaintiff was apassenger in a taxi owned and operated by the defendant Luis Leon. The second vehicle wasowned and operated by the defendants Jose Caseres and Patricia Caseres (hereinafter together theCaseres defendants), respectively.
The plaintiff moved for summary judgment on the threshold issue of serious injury, arguingthat as a result of the accident, she was unable to work at her employment for at least 90 of the180 days immediately following the occurrence (hereinafter the 90/180-day category). Thedefendants opposed the motion and separately cross-moved for summary judgment dismissingthe complaint on the ground that the plaintiff did not sustain a serious injury within the meaningof Insurance Law § 5102 (d).
The Supreme Court granted the defendants' respective cross motions for summary judgmentand denied the plaintiff's motion for summary judgment. We modify.[*2]
The Supreme Court should have denied the defendants'cross motions for summary judgment. The affirmed reports of Dr. RenÉ Elkin and Dr.Joseph Laico submitted on behalf of the Caseres defendants, and the affirmed reports of Dr.Laico and Dr. Stephen Fromm submitted on behalf of Leon, did not relate their findings to the90/180-day category of serious injury alleged in the plaintiff's bill of particulars. Therefore, theyfailed to establish their prima facie entitlement to judgment as a matter of law (see Lewis vJohn, 81 AD3d 904 [2011]; Mugno v Juran, 81 AD3d 908 [2011]; Reynolds vWai Sang Leung, 78 AD3d 919, 920 [2010]).
The Supreme Court properly denied the plaintiff's motion for summary judgment, since shefailed to demonstrate, prima facie, her entitlement to judgment as a matter of law on the issue ofserious injury under the 90/180-day category (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]; Elshaarawy v U-Haul Co. of Miss., 72 AD3d 878,880 [2010]; Ellithorpe v Marion, 34 AD3d 1195, 1197 [2006]). Although the plaintiffdemonstrated that she received a disability payment in the sum of $1,616.60 covering the periodfrom September 24, 2007, to January 20, 2008, her deposition testimony, which she submitted insupport of her motion, presented a triable issue of fact. Specifically, when she was asked why shedid not return to work, the plaintiff responded that she was "let go" from her employment inNovember of 2007 when her employer closed down. Therefore, the deposition testimony presentsa triable issue of fact as to whether the plaintiff's failure to engage in her usual and customarydaily activities for not less than 90 of the 180 days immediately following the accident was aresult of her physical condition or the employer's closing two months after the occurrence.
The parties' remaining contentions either are without merit or have been rendered academicby our determination. Dillon, J.P., Covello, Balkin, Lott and Roman, JJ., concur.