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Moore v. Waheed

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


January 26, 2010

LEO MOORE, RESPONDENT,
v.
MOHAMMAD WAHEED, ET AL., APPELLANTS, ET AL., DEFENDANTS.

In an action to recover damages for personal injuries, the defendants Mohammad Waheed and Tamara Taxi, Inc., appeal from an order of the Supreme Court, Kings County (Miller, J.), dated April 8, 2009, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff 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 and SANDRA L. SGROI, JJ.

(Index No. 10747/07)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The defendants Mohammad Waheed and Tamara Taxi, Inc., failed to meet their 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; Gaddy v Eyler, 79 NY2d 955). The defendants did not address the plaintiff's claim, clearly set forth in his bill of particulars, that he sustained a medically-determined injury or impairment of a non-permanent 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 Menezes v Khan, 67 AD3d 654; Negassi v Royle, 65 AD3d 1311; Alvarez v Dematas, 65 AD3d 598; Ismail v Tejeda, 65 AD3d 518). Accordingly, we need not consider the sufficiency of the papers submitted by the plaintiff in opposition to the motion (see Corbett v Yobris Enters., 67 AD3d 955).

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

20100126

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