Shvartsman v Bhasin

[*1] Shvartsman v Bhasin 2009 NY Slip Op 52320(U) [25 Misc 3d 137(A)] Decided on November 13, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-1748 Q C.

Yevgeniy Shvartsman, an infant by his father and natural guardian, BORIS SHVARTSMAN and BORIS SHVARTSMAN, individually, Respondents,

against

Samir Bhasin and SHEETAL BHASIN, Appellants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Lee A. Mayersohn, J.), entered June 13, 2008. The order, insofar as appealed from, denied the branches of defendants' motion for summary judgment that sought dismissal of the complaint on the issue of liability and on the ground that plaintiff Yevgeniy Shvartsman did not meet the threshold requirement of suffering a serious injury under the 90/180-day category of Insurance Law § 5102 (d).

ORDERED that the order, insofar as appealed from, is reversed without costs and defendants' motion for summary judgment dismissing the complaint is granted.

In this action for personal injuries arising from a motor vehicle accident, defendants sought summary judgment dismissing the complaint on the issue of liability and on the ground that plaintiff Yevgeniy Shvartsman had not suffered a serious injury within the meaning of Insurance Law § 5102 (d). The Civil Court granted defendants' motion to the extent of awarding defendants summary judgment as to all claims of serious injury except the 90/180-day category. Defendants appeal from so much of the Civil Court's order as denied the branches of their motion seeking dismissal of the complaint on the issue of liability and on the ground that plaintiff Yevgeniy Shvartsman did not meet the threshold requirement of suffering a serious injury under the 90/180-day category of Insurance Law § 5102 (d).

Contrary to plaintiffs' claim, defendants established a prima facie case as to the 90/180-day category by submitting plaintiff Yevgeniy Shvartsman's deposition testimony in which he conceded missing less than one month of school (see e.g. Berson v Rosada Cab Corp., 62 AD3d 636 [2009]; Kurin v Zyuz, 54 AD3d 902 [2008]; Morris v Edmond, 48 AD3d 432 [2008]; Shamsoodeen v Kibong, 41 AD3d 577 [2007]; Alexander v Garcia, 40 AD3d 274 [2007]; Hasner v Budnik, 35 AD3d 366 [2006]). In response, plaintiffs failed to offer any evidence that plaintiff Yevgeniy Shvartsman was unable to perform substantially all of his usual daily activities for the requisite period. Therefore, plaintiffs failed to raise a triable issue of fact as to whether plaintiff Yevgeniy Shvartsman sustained a medically determined injury that prevented him from engaging [*2]in substantially all of his usual daily activities for at least 90 of the first 180 days following the accident. As plaintiff Boris Shvartsman's cause of action was derivative of plaintiff Yevgeniy Shvartsman's cause of action, defendants' motion for summary judgment should have been granted and the complaint dismissed. In light of our determination, we do not reach the issue of liability.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 13, 2009