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Gary Pearson and Floretta Pearson, Respondents v. Freddie Miles

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


March 6, 2012

GARY PEARSON AND FLORETTA PEARSON, RESPONDENTS,
v.
FREDDIE MILES, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered May 28, 2010.

Pearson v Miles

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 6, 2012

PRESENT: WESTON, J.P., RIOS and ALIOTTA, JJ

The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is granted.

Plaintiffs commenced this action to recover for personal injuries allegedly sustained by plaintiff Gary Pearson in a motor vehicle accident and for plaintiff Floretta Pearson's loss of services. Defendant moved for summary judgment dismissing the complaint on the grounds that Gary Pearson (plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) and that Floretta Pearson's derivative claim is barred. The Civil Court denied the motion.

Defendant met his prima facie burden of showing that 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 [1992]). The Civil Court found that, in opposition to the motion, plaintiff had raised a triable issue of fact as to whether he had sustained a medically determined injury which prevented him from performing substantially all of the material acts which constituted his usual and customary activities for not less than 90 days during the 180 days immediately following the accident at issue. However, the record shows that plaintiff failed to allege injuries under this category in the verified bill of particulars. Consequently, defendant was not required to address plaintiff's allegations of injuries in this regard (see Quintana v Arena Transport, Inc., 89 AD3d 1002 [2011]; Ali v Mirshah, 41 AD3d 748 [2007]).

Plaintiff's submissions were insufficient to raise a triable issue of fact with respect to the permanent consequential limitation of use and significant limitation of use categories of serious injury, since plaintiff failed to substantiate his subjective complaints of pain and limitation of motion with verified objective medical findings based upon a recent examination (see Valera v Singh, 89 AD3d 929 [2011]; Clarke v Delacruz, 73 AD3d 965 [2010]; Young v Russell, 19 AD3d 688 [2005]). Furthermore, plaintiff submitted unaffirmed medical reports, to which defendant objected, which lacked probative value (see Lozusko v Miller, 72 AD3d 908 [2010]), and plaintiff failed to explain the cessation of his treatment after 2004 (see Collado v Abouzeid, 68 AD3d 912 [2009]).

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Rios and Aliotta, JJ., concur.

Decision Date: March 06, 2012

20120306

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