Ramjohn v Allstar Limousine Serv.

[*1] Ramjohn v Allstar Limousine Serv. 2010 NY Slip Op 50589(U) [27 Misc 3d 128(A)] Decided on March 31, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 31, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2009-439 Q C.

Ian H. Ramjohn, Plaintiff, -and- SIOBHAN POWER, Respondent,

against

Allstar Limousine Service and Howard Habas, Defendants, -and- PV HOLDING CORP. and AUBREY AGEDA, Appellants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered January 8, 2009. The order denied a motion by defendants PV Holding Corp. and Aubrey Ageda for partial summary judgment dismissing the second cause of action.

ORDERED that the order is modified by adding thereto a provision that, pursuant to CPLR 3212 (g), it is established for all purposes in this action that plaintiff Siobhan Power has failed to meet the threshold requirement of suffering a serious injury under the 90/180-day category; as so modified, the order is affirmed without costs.

Insofar as is relevant to this appeal, plaintiffs set forth in their second cause of action that plaintiff Siobhan Power had sustained serious injuries in a motor vehicle accident. PV Holding Corp. and Aubrey Ageda (defendants) moved for partial summary judgment dismissing the [*2]second cause of action on the ground that Siobhan Power did not sustain a serious injury as defined by Insurance Law § 5102 (d). The Civil Court denied the motion, and this appeal by defendants ensued.

Defendants failed to establish, prima facie, that plaintiff Siobhan Power did not sustain a serious injury under the permanent loss of use, permanent consequential limitation of use or significant limitation of use categories as a result of the accident (see Insurance Law § 5102 [d]). Defendants failed to address Power's claim of a causally related neurological injury, since the report of defendants' doctor did not indicate that he had performed a neurological examination. In addition, defendants' doctor, an orthopedist, reported a bilaterally negative straight leg raising test and normal ranges of motion of Power's knees without comparing his findings to normal ranges of motion (see McCarthy v Gagne, 61 AD3d 942 [2009]; Marshak v Migliore, 60 AD3d 647 [2009]). Furthermore, the orthopedist's affirmed report indicated the existence of limitations of movement in the lumbosacral spine (see Zamaniyan v Vrabeck, 41 AD3d 472 [2007]; Smith v Delcore, 29 AD3d 890 [2006]; Thomas v Smith, 25 AD3d 786 [2006]). Since defendants failed to meet their prima facie burden with respect to the permanent loss of use, permanent consequential limitation of use, or significant limitation of use categories, it is unnecessary to examine the sufficiency of Power's opposition papers in this regard (see Spanos v Harrison, 67 AD3d 893 [2009]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]).

Defendants, however, made a prima facie showing that plaintiff Siobhan Power 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 Power's deposition testimony, in which she stated that she was confined to bed and home for approximately four weeks immediately following the accident and that she had traveled to North Carolina on vacation four weeks after the accident. Furthermore, Power conceded that no medical professional had advised her to remain confined to her home. Power's deposition testimony established that her injuries did not prevent her from performing substantially all of the material acts constituting her customary daily activities during at least 90 of the first 180 days following the accident (see Richards v Tyson, 64 AD3d 760 [2009]; Berson v Rosada Cab Corp., 62 AD3d 636 [2009]). In opposition to defendants' prima facie showing, Power's admissible submissions were insufficient to raise a triable issue of fact as to whether she 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 order is modified by adding thereto a provision, pursuant to CPLR 3212 (g), that it is established for all purposes in the action that plaintiff Siobhan Power did not satisfy the threshold requirement of suffering a serious injury under the 90/180-day category.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 31, 2010