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Ricketts v. Cuffe Auto Sales, Inc.

Supreme Court of New York, First Department

May 28, 2013

George Ricketts, et al., Plaintiffs-Respondents,
v.
Cuffe Auto Sales, Inc., Defendant-Appellant, "John Doe", etc., Defendant. [And a Third-Party Action]

Reardon & Sclafani, P.C., Tarrytown (Michael V. Sclafani of counsel), for appellant.

Dubow, Smith & Marothy, Bronx (Steven J. Mines of counsel), for respondents.

Acosta, J.P., Renwick, Richter, Feinman, JJ.

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered November 21, 2012, which, upon reargument, vacated the court's prior order dated May 25, 2012, denied defendant Cuffe Auto Sales, Inc.'s motion for summary judgment dismissing the complaint, and granted plaintiffs' cross motion to amend their bill of particulars, unanimously affirmed, without costs.

The court providently exercised its discretion in granting reargument, since the court, in its prior order, appeared to have overlooked most of plaintiffs' evidence (see CPLR 2211[d][2]). Upon reargument, the court properly denied defendant's motion, as issues of fact exist as to plaintiffs' 90/180-day claim. While defendant met its initial burden as movant, plaintiffs provided credible evidence that the injured plaintiff suffered a medically-determined injury that prevented him performing his usual and customary activities — including working, picking his daughter up from school, cooking, and cleaning — for more than 90 days after the accident (compare Castillo v Collado, 83 A.D.3d 581, 582 [1st Dept 2011], with Bailey v Islam, 99 A.D.3d 633, 634 [1st Dept 2012], and Jno—Baptiste v Buckley, 82 A.D.3d 578, 579 [1st Dept 2011]). Whether plaintiff's doctor's averments are credible is an issue for the jury to decide (see Sung v Mihalios, 44 A.D.3d 500, 501 [1st Dept 2007]).

We have considered defendant's remaining arguments and find them unavailing.


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