Stewart v. Perez

89 A.D.3d 921, 932 N.Y.2d 709

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 2011
• Status: Published

Opinion

The defendants Sue Jun-Om and Jong-Hoon Om (hereinafter together the Oms) and the defendant Alberto Perez failed to meet their prima facie burdens of showing that the plaintiff Godfrey Stewart (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The papers submitted by the Oms and Perez failed to adequately address the plaintiffs’ claim, set forth in the bill of particulars, that the injured plaintiff sustained a medically determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Mugno v Juran, 81 AD3d 908 [2011]). The defendants’ examining physicians did not relate any of their findings to this category of serious injury for the period of time immediately following the subject accident (see Takaroff v A.M. USA, Inc., 63 AD3d 1142, 1143 [2009]). In addition, the Oms and Perez provided no evidence supporting their assertion that during the 180 days immediately following the accident, the injured plaintiffs injuries or condition did not “ curtail [ ]” the injured plaintiff “from performing his usual activities to a great extent” (Licari v Elliott, 57 NY2d 230, 236 [1982]).

Since the Oms and Perez did not sustain their prima facie burdens, it is unnecessary to determine whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see Mugno v Juran, 81 AD3d at 909).

Accordingly, the Supreme Court should have denied the Oms’ motion and that branch of Perez’s cross motion which were for summary judgment dismissing the complaint. Rivera, J.P, Angiolillo, Eng, Chambers and Sgroi, JJ., concur.