| Kapeleris v Riordan |
| 2011 NY Slip Op 08329 [89 AD3d 903] |
| November 15, 2011 |
| Appellate Division, Second Department |
| Stacey Kapeleris, Respondent, v Susan Riordan,Appellant. |
—[*1] Wittenstein & Associates, P.C., Oceanside, N.Y. (Harlan Wittenstein of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order of theSupreme Court, Kings County (Saitta, J.), dated March 18, 2010, which, in effect, granted theplaintiff's motion for summary judgment on the issue of serious injury.
Ordered that the order is affirmed, with costs.
As the proponent of a motion for summary judgment, the plaintiff had the burden of making a primafacie showing that she suffered a serious injury pursuant to Insurance Law § 5102 (d) and thatthe injury was causally related to the accident (see Elshaarawy v U-Haul Co. of Miss., 72 AD3d 878, 881 [2010]; Autiello v Cummins, 66 AD3d 1072,1073 [2009]). The plaintiff satisfied this burden by submitting her own affidavit and the affirmation ofher treating neurologist, who reviewed magnetic resonance imaging films taken a few days after theaccident and who first examined her about 1½ months after the accident. This evidence wassufficient to establish that, as a result of the accident, the plaintiff sustained "a medically determinedinjury" to the lumbar and cervical regions of her spine which prevented her from performing substantiallyall of her usual and customary daily activities for at least 90 of the first 180 days following the accident(Insurance Law § 5102 [d]; seeRefuse v Magloire, 83 AD3d 685 [2011]; Elshaarawy v U-Haul Co. of Miss., 72AD3d at 881; Rasporskaya v New YorkCity Tr. Auth., 73 AD3d 727 [2010]; Ellithorpe v Marion, 34 AD3d 1195, 1197 [2006]).
In opposition, the defendant failed to raise a triable issue of fact as to whether the plaintiff sustaineda serious injury within the 90/180-day category of serious injury under Insurance Law § 5102(d) as a result of the accident. The defendant's radiologist, who did not examine the plaintiff and whobased his findings entirely on a review of X rays and CT scans taken about six months after theaccident, failed to relate his findings to the plaintiff's serious injury claims under the 90/180-daycategory for the period of time immediately following the accident, which claims were clearly set forth inthe plaintiff's bill of particulars and deposition transcript (see Refuse v [*2]Magloire, 83 AD3d at 685; see also Udochi v H & S Car Rental Inc., 76 AD3d 1011, 1012 [2010];Jensen v Nicmanda Trucking, Inc., 47AD3d 769, 769-770 [2008]; Bozza vO'Neill, 43 AD3d 1094, 1096 [2007]; Volpetti v Yoon Kap, 28 AD3d 750, 751 [2006]; cf. Rasporskaya v New York City Tr.Auth., 73 AD3d 727 [2010]; Elshaarawy v U-Haul Co. of Miss., 72 AD3d at 881;DeMarchi v Martinez, 224 AD2d 651, 651-652 [1996]). Accordingly, the Supreme Courtproperly, in effect, granted the plaintiff's motion for summary judgment on the issue of serious injury.Skelos, J.P., Dickerson, Hall, Austin and Miller, JJ., concur.