| Aujour v Singh |
| 2011 NY Slip Op 09076 [90 AD3d 686] |
| December 13, 2011 |
| Appellate Division, Second Department |
| Ovide Aujour, Appellant, v Sarwon Singh,Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel),for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (McDonald, J.), entered June 25, 2010, which granted thedefendant's motion for summary judgment dismissing the complaint on the ground that she 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 forsummary judgment dismissing the complaint is denied.
The defendant failed to meet his prima facie burden of showing that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of thesubject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-657 [1992]). In her bill of particulars, the plaintiff alleged that shehad sustained a medically determined injury or impairment of a nonpermanent nature whichprevented her from performing substantially all of the material acts which constituted her usualand customary activities for not less than 90 days during the 180 days immediately following thesubject accident. However, the defendant failed to show, prima facie, that the plaintiff did notsustain such an injury. In support of his motion, the defendant submitted the plaintiff's depositiontestimony, which indicated that, for 120 days following the subject accident, she was confined toher home and did not go to work (seeTakaroff v A.M. USA, Inc., 63 AD3d 1142, 1143 [2009]; Shaw v Jalloh, 57 AD3d 647, 648[2008]; Ali v Rivera, 52 AD3d445, 446 [2008]; DeVille vBarry, 41 AD3d 763 [2007]). Moreover, the defendant's orthopedist, who examined theplaintiff more than 16 months after the accident, did not relate any of his findings to the period oftime immediately following the accident (see Cabey v Leon, 84 AD3d 1295, 1296 [2011]; Mugno v Juran, 81 AD3d 908, 909[2011]; Lewis v John, 81 AD3d904, 905 [2011]; Takaroff v A.M. USA, Inc., 63 AD3d at 1143; Shaw vJalloh, 57 AD3d at 648; DeVille v Barry, 41 AD3d at 763-764). Since the defendantdid not sustain his prima facie burden on his motion, it is unnecessary to determine whether thepapers submitted by the plaintiff in opposition were sufficient to raise 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 compliant. Rivera, J.P., Angiolillo,Eng, Chambers and Sgroi, JJ., concur. [Prior Case History: 2010 NY Slip Op31387(U).]