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Wilfer Ibanez andwilliam Merchan v. Sejour Siby and Frank Faustin

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


April 5, 2011

WILFER IBANEZ ANDWILLIAM MERCHAN, PLAINTIFFS-RESPONDENTS,
v.
SEJOUR SIBY AND FRANK FAUSTIN,
DEFENDANTS-APPELLANTS.

Defendants appeal from that portion of an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered January 28, 2010, which denied their motion for summary judgment dismissing the complaint of plaintiff William Merchan.

Per curiam.

Ibanez v Siby

Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 5, 2011

PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ

Order (Mitchell J. Danziger, J.), entered January 28, 2010, insofar as appealed from, reversed, without costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Defendants established a prima facie showing that plaintiff William Merchan did not sustain a serious injury as defined under Insurance Law § 5102(d) by submitting the affirmed medical reports of an orthopedist and a neurologist, who upon examination found that plaintiff had normal ranges of spinal motion and had recovered from sprain injuries (see Zhijian Yiang v Alston, 73 AD3d 562, 563 [2010]). Defendants also submitted plaintiff's deposition testimony in which plaintiff acknowledged that he was not confined to home as a result of the 2006 motor vehicle accident. With this evidence, defendants established their entitlement to judgment as a matter of law dismissing the complaint (see DeJesus v Cruz, 73 AD3d 539 [2010]).

In opposition, plaintiff failed to raise a triable issue as to whether he sustained a serious injury. Plaintiff's deposition testimony revealed that he was involved in a second motor vehicle accident with similar injuries in 2007. In these circumstances, it was incumbent upon plaintiff to present proof showing that his alleged injuries were caused by the subject accident, and not the intervening accident (see Figueroa v Castillo, 34 AD3d 353, 354 [2006]; Sierra v Harris, 22 Misc 3d 136[A], 2009 NY Slip Op 50287[U] [2009]). Plaintiff's doctors did not adequately address the possibility that plaintiff's alleged limitations were caused by the second accident, "thus rendering speculative [their] conclusion that plaintiff's injuries were causally related to the subject accident" (Zhijian Yiang v Alston, 73 AD3d at 563; see Lunkins v Toure, 50 AD3d 399 [2008]; Style v Joseph, 32 AD3d 212, 214-215 [2006]).

Finally, plaintiff also failed to submit competent evidence that he was medically unable to perform substantially all of his usual and customary daily activities for at least 90 of the 180 days immediately following the accident. Plaintiff testified at his deposition that he was not confined to his home as a result of this accident, and he denied being told by any doctor to restrict his activities (see Lopez v Abdul-Wahab, 67 AD3d 598, 600 [2009]; Ortiz v Ash Leasing, Inc., 63 AD3d 556 [2009]; Rossi v Alhassan, 48 AD3d 270, 271 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: April 05, 2011

20110405

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