Bacarella v Jaffe

[*1] Bacarella v Jaffe 2009 NY Slip Op 51569(U) [24 Misc 3d 137(A)] Decided on July 14, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 14, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-112 Q C.

Martina Bacarella, Appellant,

against

Ryan Scott Jaffe and HERBERT JAFFE, Respondents. RYAN SCOTT JAFFE and HERBERT JAFFE, Third-Party Plaintiffs, ROXANNE MANNIELLO, Third-Party Defendant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas J. Dufficy, J.), entered October 22, 2007, deemed from a judgment of the same court entered November 29, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 22, 2007 order, which, inter alia, granted defendants' and third-

party defendant's motions for summary judgment, dismissed the complaint and dismissed the third-party complaint as moot.

Judgment reversed without costs, complaint and third-party complaint reinstated, so much of the order entered October 22, 2007 as granted defendants' and third-party defendant's motions for summary judgment vacated, defendants' motion for summary judgment granted only to the extent of finding for all purposes in the action, pursuant to CPLR 3212 (g), that plaintiff failed to meet the threshold requirement of suffering a serious injury under the permanent consequential limitation of use and significant limitation of use categories, and matter remitted to the Civil Court for determination of the merits of third-party defendant's motion for summary judgment and for all further proceedings.

Plaintiff commenced this action to recover for serious 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 within the meaning of Insurance Law § 5102 (d). Third-party defendant moved for summary judgment on the ground that she was not liable for the motor vehicle accident. By order entered October 22, 2007, the Civil Court, inter alia, granted defendants' motion on the ground [*2]
asserted, and granted third-party defendant's motion on the ground that the third-party complaint was moot. The instant appeal by plaintiff ensued. A judgment was subsequently entered pursuant to the October 22, 2007 order (see CPLR 5501 [c]).

Contrary to the determination of the Civil Court, defendants failed to meet their prima facie burden of showing that plaintiff did not suffer a medically determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident (see Insurance Law § 5102 [d]). Defendants' submissions were deficient in that their experts failed to address plaintiff's claim, clearly set forth in her verified bill of particulars, that she was out of work for approximately five months immediately after the accident and confined to bed and home for that same period of time (see Miller v Bah, 58 AD3d 815 [2009]; Edwards v Sultan Transp., Inc., 47 AD3d 872 [2008). In view of the foregoing, the sufficiency of plaintiff's opposition papers with respect to this issue need not be considered as the burden never shifted to plaintiff with respect thereto (see Whack v Williams, 53 AD3d 481 [2008]; Collacino v Andrews, 50 AD3d 886 [2008]; Parnes v Mitzy Transp., 44 AD3d 918 [2007]).

Inasmuch as plaintiff raises no issue on appeal with respect to defendants' prima facie case as to the permanent consequential limitation of use and significant limitation of use categories of serious injury, we do not pass on the propriety of the determination of the Civil Court with respect thereto. The record demonstrates that plaintiff failed to submit sufficient evidence to raise a triable issue of fact in her opposition to this portion of the motion. While plaintiff's treating physician diagnosed plaintiff with sprains and strains, sprains and strains are not serious injuries within the meaning of Insurance Law § 5102 (d) (see Rabolt v Park, 50 AD3d 995 [2008]; Washington v Cross, 48 AD3d 457 [2008]). Furthermore, plaintiff's radiologist failed to address the determination by defendants' expert of preexisting degenerative disc changes which were not causally related to the accident (see Johnson v Berger, 56 AD3d 725 [2008]; Ciordia v Luchian, 54 AD3d 708 [2008]).

Accordingly, the judgment is reversed, the complaint and third-party complaint are reinstated, so much of the order as granted defendants' and third-party defendant's motions for summary judgment is vacated, defendants' motion for summary judgment is granted only to the extent of finding for all purposes in the action, pursuant to CPLR 3212 (g), that plaintiff did not meet the threshold requirement of suffering a serious injury under the permanent consequential limitation of use and significant limitation of
use categories, and the matter is remitted to the Civil Court for determination on the merits of third-party defendant's motion for summary judgment and for all further proceedings.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 14, 2009