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Pacheco v. Conners

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


January 19, 2010

PAOLA PACHECO, APPELLANT,
v.
LLOYD A. CONNERS, RESPONDENT.

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, Westchester County (Smith, J.), entered June 3, 2008, as granted that branch of the defendant's motion which was 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).

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

MARK C. DILLON, J.P., HOWARD MILLER, RANDALL T. ENG, L. PRISCILLA HALL & SANDRA L. SGROI, JJ.

(Index No. 19242/05)

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant met 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 by submitting a physician's report and the plaintiff's deposition testimony (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957; Kivlan v Acevedo, 17 AD3d 321). Specifically, the plaintiff testified at her deposition that she stopped working as a part-time babysitter as a result of the accident, but she did not testify that her injuries substantially impacted on all of her activities of daily living, except to the extent that it affected her ability to roller skate and ice skate. In opposition to the defendant's prima facie showing, the plaintiff failed to raise a triable issue of fact. The plaintiff did not submit competent evidence to support a claim that she was unable to perform substantially all of her daily activities for not less than 90 days of the first 180 days immediately following the accident due to a medically-determined injury or impairment (see Farozes v Kamran, 22 AD3d 458).

DILLON, J.P., MILLER, ENG, HALL and SGROI, JJ., concur.

20100119

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