Majority
The defendant failed to meet his prima facie burden of showing that the 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 , 956-657 [1992]). In her bill of particulars, the plaintiff alleged that she had 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 activities for not less than 90 days during the 180 days immediately following the subject accident. However, the defendant failed to show, prima facie, that the plaintiff did not sustain such an injury. In support of his motion, the defendant submitted the plaintiffs deposition testimony, which indicated that, for 120 days following the subject accident, she was confined to her home and did not go to work (see Takaroff v A.M. USA, Inc., 63
Accordingly, the Supreme Court should have denied the defendant’s motion for summary judgment dismissing the compliant. Rivera, J.E, Angiolillo, Eng, Chambers and Sgroi, JJ., concur. [Prior Case History: 2010 NY Slip Op 31387 (U).]
Cases cited
- Toure v. Avis Rent A Car Systems, Inc. 98 NY2d 345 p. 686
- Shaw v. Jalloh 57 AD3d 647 at 648 p. 687
- Ali v. Rivera 52 AD3d 445 at 446 p. 687
- DeVille v. Barry 41 AD3d 763 p. 687
- Cabby v. Leon 84 AD3d 1295 at 1296 p. 687
- Mugno v. Juran 81 AD3d 908 at 909 p. 687
- Lewis v. John 81 AD3d 904 at 905 p. 687
- Galofaro v. Wylie 78 AD3d 652 at 653 p. 687