Alexander v. Garcia

Appellate Division of the Supreme Court of New York

Alexander v. Garcia

40 A.D.3d 274, 835 N.Y.S.2d 147

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 3, 2007

StatusPublished

Cited by4 cases

This text of 40 A.D.3d 274 (Alexander v. Garcia) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Alexander v. Garcia, 40 A.D.3d 274, 835 N.Y.S.2d 147 (N.Y. Ct. App. 2007).

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Opinion

Order, Supreme Court, New York County (Milton A.. Tingling, J.), entered January 10, 2006, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously modified, on the law, to dismiss so much of the complaint as claims an injury or impairment that prevented plaintiff from performing substantially all of the material acts constituting his usual and customary daily activities for at least 90 days during the 180 days immediately following the accident, and otherwise affirmed, without costs.

Although the affirmation of defendants’ physician, who did not examine plaintiff until almost two years after the accident, failed to make a prima facie showing that plaintiff did not sustain a 90/180 injury (see Toussaint v Claudio, 23 AD3d 268 [2005]), the necessary prima facie showing was made by plaintiffs own deposition testimony that he was not confined to bed or home following the accident and did not make any claims for lost wages, and by a record otherwise devoid of evidence tending to show such an injury. Accordingly, we dismiss the 90/ 180 claim (see Uddin v Cooper, 32 AD3d 270, 271 [2006], lv denied 8 NY3d 808 [2007]). We have considered defendants’ arguments with respect to plaintiff’s other claims of serious injury and find them unavailing. Concur—Friedman, J.P., Marlow, Sullivan, Sweeny and Catterson, JJ.

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Order, Supreme Court, New York County (Milton A.. Tingling, J.), entered January 10, 2006, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously modified, on the law, to dismiss so much of the complaint as claims an injury or impairment that prevented plaintiff from performing substantially all of the material acts constituting his usual and customary daily activities for at least 90 days during the 180 days immediately following the accident, and otherwise affirmed, without costs.

Although the affirmation of defendants’ physician, who did not examine plaintiff until almost two years after the accident, failed to make a prima facie showing that plaintiff did not sustain a 90/180 injury (see Toussaint v Claudio, 23 AD3d 268 [2005]), the necessary prima facie showing was made by plaintiffs own deposition testimony that he was not confined to bed or home following the accident and did not make any claims for lost wages, and by a record otherwise devoid of evidence tending to show such an injury. Accordingly, we dismiss the 90/ 180 claim (see Uddin v Cooper, 32 AD3d 270, 271 [2006], lv denied 8 NY3d 808 [2007]). We have considered defendants’ arguments with respect to plaintiff’s other claims of serious injury and find them unavailing. Concur—Friedman, J.P., Marlow, Sullivan, Sweeny and Catterson, JJ.

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Bluebook (online)

40 A.D.3d 274, 835 N.Y.S.2d 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alexander-v-garcia-nyappdiv-2007.

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