| Taylor v Taylor |
| 2011 NY Slip Op 06834 [87 AD3d 1129] |
| September 27, 2011 |
| Appellate Division, Second Department |
| Michael Taylor et al., Appellants, v Dorothy Taylor et al.,Respondents. |
—[*1] Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), for respondentsDorothy Taylor and Richard Williamson. Andrea G. Sawyers, Melville, N.Y. (Christopher T. Vetro of counsel), for respondent CraigGoodman.
In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), datedAugust 11, 2010, as granted the motion of the defendants Dorothy Taylor and RichardWilliamson, and the separate motion of the defendant Craig Goodman, for summary judgmentdismissing the complaint insofar as asserted against each of them on the ground that the plaintiffsdid not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with one bill of costs payable by thedefendants appearing separately and filing separate briefs, and the motions for summaryjudgment dismissing the complaint insofar as asserted against each of the defendants on theground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) are denied.
The defendants failed to meet their respective prima facie burdens of showing that theplaintiffs 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., 98 NY2d 345[2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]).
The defendants all relied on the affirmed medical report of Dr. Kuldip K. Sachdev, aneurologist who examined the plaintiff Donna Speed on October 8, 2009. During thatexamination, Dr. Sachdev noted significant limitations in the range of motion of the cervical andlumbar regions of Speed's spine, and significant limitations in the range of motion of her leftshoulder. Such findings prevented the defendants from meeting their prima facie burdens ofshowing that Speed did not sustain a serious injury to those regions of her body within themeaning of Insurance Law § 5102 (d) as a result of the subject accident (see Astudillo v MV Transp., Inc., 84AD3d 1289 [2011]; Rhodes vStoddard, 79 AD3d 997 [2010]; Kharzis v PV Holding Corp., 78 AD3d 1122 [2010]; see also Artis v Lucas, 84 AD3d845 [2011]; Rocourt v Alvelo,79 AD3d 1120 [2010]; Mondevil vKumar, 74 AD3d 1295 [2010]; Smith v Hartman, 73 AD3d 736 [2010]; Quiceno v Mendoza, 72 AD3d 669[2010]; Giacomaro v Wilson, 58AD3d 802 [2009]). Moreover, the defendants' respective motion papers failed to addressSpeed's claim, as set forth in her bill of particulars, that she sustained a medically-determinedinjury or impairment of a [*2]nonpermanent nature whichprevented her from performing substantially all of the material acts which constituted her usualand customary activities for not less than 90 of the 180 days immediately following the subjectaccident (see Aslam v Hossain, 83AD3d 749 [2011]; Reynolds v WaiSang Leung, 78 AD3d 919 [2010]; Udochi v H & S Car Rental Inc., 76 AD3d 1011 [2010]; Strilcic v Paroly, 75 AD3d 542[2010]). Speed testified at her deposition that she essentially stopped working after the subjectaccident on advice of her doctor. The defendants' respective experts did not examine her until atleast one year or more after the accident, and did not relate any of their findings to that categoryof serious injury for the period of time immediately following the subject accident.
As to the plaintiff Michael Taylor, the defendants' respective motion papers also failed toaddress his claim, as set forth in his bill of particulars, that he sustained a medically-determinedinjury or impairment of a nonpermanent nature which prevented him from performingsubstantially all of the material acts which constituted his usual and customary activities for notless than 90 of the 180 days immediately following the subject accident. Taylor alleged in his billof particulars that he was confined to his home and/or bed from the date of the subject accident.None of those defense experts related any of their findings to the 90/180-day category of seriousinjury for the period of time immediately following the subject accident.
Since the defendants failed to meet their respective prima facie burdens, it is unnecessary toconsider whether the papers submitted by the plaintiffs in opposition were sufficient to raise atriable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538 [2001]).
Accordingly, the Supreme Court should have denied the motions for summary judgmentdismissing the complaint insofar as asserted against each of the defendants. Rivera, J.P., Florio,Leventhal and Roman, JJ., concur.