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Timothy Lee House v. Darlene Johnson and G. G. Johnson

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


April 26, 2011

TIMOTHY LEE HOUSE,
APPELLANT,
v.
DARLENE JOHNSON AND G. G. JOHNSON, JR.,
RESPONDENTS.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered December 21, 2009, deemed from a judgment of the same court entered January 22, 2010 (see CPLR 5501 [c]).

Timothy Lee House v Johnson

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2011

PRESENT: PESCE, P.J., WESTON and GOLIA, JJ .

The judgment, entered pursuant to the December 21, 2009 order granting defendants' motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed, without costs, the order entered December 21, 2009 is vacated and defendants' motion for summary judgment dismissing the complaint is granted only to the extent of finding for all purposes in the action, pursuant to CPLR 3212 (g), that plaintiff did not suffer a serious injury under the 90/180-day category of Insurance Law § 5102 (d).

Plaintiff commenced this action to recover for personal injuries allegedly sustained in a motor vehicle accident. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined under Insurance Law § 5102 (d). By order entered December 21, 2009, the Civil Court granted defendants' motion. Plaintiff's appeal from the order is deemed to be from the judgment entered pursuant to the order (see CPLR 5501 [c]).

Defendants failed to make a prima facie showing that plaintiff had not sustained a serious injury under the permanent loss of use, permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102 (d). Although defendants' examining physician reported, among other things, a negative straight leg raising test and negative Laseque sign, he did not set forth the numerical values revealed by the tests or make comparisons to normal ranges of motion (see Shirman v Lawal, 69 AD3d 838 [2010]; see also Spanos v Harrison, 67 AD3d 893 [2009]; McNulty v Buglino, 40 AD3d 591 [2007]). Since defendants failed to establish, prima facie, that plaintiff did not sustain a serious injury under these categories, it is unnecessary to consider whether plaintiff's papers submitted in opposition were sufficient to raise a triable issue of fact as to these categories (see Borras v Lewis, 79 AD3d 1084 [2010]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]).

However, defendants met their prima facie burden of showing that plaintiff did not suffer a serious injury under the 90/180-day category of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). Defendants submitted the transcript of plaintiff's deposition testimony, in which plaintiff stated that he had not been confined to his home or bed, and that he had missed only a few days of work immediately following the accident. Plaintiff's deposition testimony established that his injuries had not prevented him from performing substantially all of the material acts constituting his customary daily activities during at least 90 of the first 180 days following the accident (see Ranford v Tim's Tree & Lawn Serv., Inc., 71 AD3d 973 [2010]; Richards v Tyson, 64 AD3d 760 [2009]; Berson v Rosada Cab Corp., 62 AD3d 636 [2009]). In opposition to defendants' prima facie showing, plaintiff's admissible submissions were insufficient to raise a triable issue of fact as to whether he had sustained a serious injury under the 90/180-day category (see Ly v Holloway, 60 AD3d 1006 [2009]; Sorto v Morales, 55 AD3d 718 [2008]).

Accordingly, the judgment is reversed, the order granting defendants' motion for summary judgment dismissing the complaint is vacated and defendants' motion is granted only to the extent of finding for all purposes in the action, pursuant to CPLR 3212 (g), that plaintiff did not suffer a serious injury under the 90/180-day category of Insurance Law § 5102 (d).

Pesce, P.J., Weston and Golia, JJ., concur.

Decision Date: April 26, 2011

20110426

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