DeSimone v. Mejia

283 A.D.2d 454, 724 N.Y.S.2d 630, 2001 N.Y. App. Div. LEXIS 5009

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 14, 2001
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Schmidt, J.), dated August 22, 2000, as granted the defendants’ motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied, and the complaint is reinstated.

In support of their motion for summary judgment, the defendants submitted, inter alia, the plaintiffs verified bill of particulars wherein she claimed that she sustained a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for a period of not less than 90 days during the 180-day period immediately following the accident (see, Insurance Law § 5102 [d]). The defendants also submitted an affirmed report prepared by their orthopedist, wherein he indicated that the plaintiff advised him that she missed seven months of work as a result of the accident-related injuries. The defendants’ papers failed to make out a prima facie case that the plaintiff did not sustain a serious injury (see, Insurance Law § 5102 [d]; Polizzi v Won Jun Choi, 264 AD2d 830). O’Brien, J. P., Krausman, Goldstein, Schmidt and Crane, JJ., concur.