Tucci v. Talon Seafood South, Inc., Doing Business as La Renaissance French Pastries

Mar 21, 2006
Versions:27 A.D.3d 642
812 N.Y.S.2d 607

In an action to recover damages for personal injuries, the defendants Mendon Leasing Corporation, Kingsland Ave Leasing Corp., Raz Dairy, Inc., and Piyushkumar A. Patel appeal, and the defendant Rajinder Sharma separately appeals, as limited by their respective briefs, from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated May 18, 2005, which denied their respective motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

In support of their respective motions for summary judgment, the defendants submitted the deposition testimony of the plaintiff, as well as, inter alia, the affirmed medical reports of an orthopedist and a neurologist, demonstrating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject automobile accident. This evidence was sufficient to establish a prima facie case for the defendants (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]).

However, contrary to the respective defendants’ contentions, the affidavits of the plaintiff and her examining neurologist raised a triable issue of fact as to whether the plaintiff sustained a medically-determined injury (see Insurance Law § 5102 [d]) which prevented her from performing substantially all of the material acts constituting her usual and customary daily activities during at least 90 out of the first 180 days following the accident (see Shifren v Scheiner, 269 AD2d 381 [2000]; cf. Pierre v Nanton, 279 AD2d 621 [2001]). Adams, J.P., Goldstein, Fisher and Lifson, JJ., concur.