| Bangar v Man Sing Wong |
| 2011 NY Slip Op 08717 [89 AD3d 1048] |
| November 29, 2011 |
| Appellate Division, Second Department |
| Ken Bangar, et al., Appellants, v Man Sing Wong,Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of theSupreme Court, Kings County (F. Rivera, J.), dated April 9, 2010, which granted the defendant'smotion for summary judgment dismissing the complaint on the ground that the plaintiff Ken Bangar didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendant's motion for summaryjudgment dismissing the complaint is denied.
The defendant failed to meet his prima facie burden of showing that the injured plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler,79 NYd 955, 956-957 [1992]). In their bill of particulars, the plaintiffs alleged that the injured plaintiffhad sustained a medically-determined injury or impairment of a nonpermanent nature which preventedhim from performing substantially all of the material acts which constituted his usual and customaryactivities for not less than 90 days during the 180 days immediately following the subject accident.However, the defendant failed to show, prima facie, that the injured plaintiff did not sustain such aninjury. In support of his motion, the defendant submitted the injured plaintiff's deposition testimony,which indicated that the injured plaintiff missed work for the first 110 days after the subject accident(see Takaroff v A.M. USA, Inc., 63AD3d 1142, 1143 [2009]; Shaw vJalloh, 57 AD3d 647, 648 [2008]; Ali v Rivera, 52 AD3d 445, 446 [2008]; DeVille v Barry, 41 AD3d 763[2007]). Moreover, the defendant's orthopedist, who examined the injured plaintiff more than 14months after the accident, did not relate any of his findings to the period of time immediately followingthe accident (see Cabey v Leon, 84AD3d 1295, 1296 [2011]; Mugno vJuran, 81 AD3d 908, 909 [2011]; Lewis v John, 81 AD3d 904, 905 [2011]; Takaroff v A.M. USA,Inc., 63 AD3d at 1143; Shaw v Jalloh, 57 AD3d at 648; DeVille v Barry, 41AD3d at 763-764). Since the defendant did not sustain his prima facie burden on his motion, it isunnecessary to determine whether the papers submitted by the plaintiffs in opposition were sufficient toraise a triable issue of fact (see Mugno v Juran, 81 AD3d at 909; Galofaro v Wylie, 78 AD3d 652, 653[2010]). [*2]Accordingly, the Supreme Court should have denied thedefendant's motion for summary judgment dismissing the complaint. Rivera, J.P., Angiolillo, Eng,Chambers and Sgroi, JJ., concur.