Perez v Williams

[*1] Perez v Williams 2010 NY Slip Op 50477(U) [26 Misc 3d 146(A)] Decided on March 22, 2010 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570001/10.

Jonathan Perez, an infant over the age of 14 years, by his mother and natural guardian, Wendy Perez, and Wendy Perez, individually, Plaintiffs-Appellants,

against

Sanyo M. Williams and Dwight L. Richards, Defendants-Respondents.

Plaintiffs appeal, as limited by their brief, from that portion of an order of the Civil Court of the City of New York, Bronx County (Sharon A.M. Aarons, J.), entered July 10, 2009, which granted defendants' motion for summary judgment dismissing plaintiffs' first and second causes of action.

Per Curiam.

Order (Sharon A.M. Aarons, J.), entered July 10, 2009, insofar as appealed from, modified to deny that branch of defendants' motion for summary judgment seeking dismissal of plaintiffs' claim of serious injury predicated upon the 90/180-day category, that claim and the derivative claim related thereto reinstated, and as modified, affirmed, without costs.

Civil Court properly granted those branches of defendants' summary judgment motion seeking dismissal of plaintiffs' claims premised on the permanent injury categories of Insurance Law § 5102(d), since plaintiffs failed to adequately explain the lengthy "gap" in the infant plaintiff's treatment (see Antonio v Gear Trans Corp., 65 AD3d 869 [2009]; Eichinger v Jone Cab Corp., 55 AD3d 364 [2008]; see generally Pommells v Perez, 4 NY3d 577 [2005]; Toussaint v Claudio, 23 AD3d 268 [2005]). However, a triable issue exists as to whether the infant plaintiff sustained a serious injury under the 90/180-day category. We note in this connection the record evidence indicating that the injuries the injured plaintiff allegedly sustained in the underlying April 2004 vehicular accident prevented him from attending school for the last six weeks of the academic year and significantly curtailed his ability to perform chores, engage in social activities and play sports during the relevant time period (see generally Westfall v Wyld, 191 AD2d 866 [1993]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: March 22, 2010