O'Sullivan v Harran Transp., Inc.

[*1] O'Sullivan v Harran Transp., Inc. 2005 NY Slip Op 51683(U) [9 Misc 3d 135(A)] Decided on October 20, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: October 20, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ.
2004-1727 N C

DENISE O'SULLIVAN and THOMAS O'SULLIVAN, Appellants, -and- JOSETTE SERRITELLA and VINCENT SERRITELLA,. Plaintiffs,

against

HARRAN TRANSPORTION, INC., ADOLFO PORRAS and CBS LINES INC., Respondents.

Appeal from an order of the District Court of Nassau County, First District (Steven M. Jaeger, J.), entered August 4, 2004. The order granted defendants' motion for summary judgment as against plaintiff Denise O'Sullivan.

Order unanimously modified to the extent of denying defendants' motion for summary judgment as against plaintiff Denise O'Sullivan in regard to the 90/180 day category of Insurance Law § 5102 (d); as so modified, affirmed without costs.

Appeal as taken by plaintiff Thomas O'Sullivan unanimously dismissed.

Plaintiff-appellant Thomas O'Sullivan has stipulated to a discontinuance of his own cause of action.

Defendants moved for summary judgment dismissing the complaint on the ground that the injured plaintiff, Denise O'Sullivan, failed to satisfy the threshold requirement of suffering a [*2]serious injury under Insurance Law § 5102 (d). Although both of defendants' doctors who examined the injured plaintiff approximately four years after the accident stated that she informed them that she missed four months of work as a result of the accident, neither of them addressed the major allegation contained in the plaintiffs' bill of particulars, that Denise O'Sullivan sustained 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 activities for a period of not less than 90 days during the 180-day period immediately following the accident (Nembhard v Delatorre, 16 AD3d 390 [2005]). It should be noted that while the bill of particulars states that she missed approximately two months of work and that she stayed home for four months, her affidavit in opposition to defendants' motion states that she missed four months of work. Consequently, defendants failed to shift the burden in regard to the 90/180 category of the statute and we therefore modify the order by denying defendants' motion as to said category and reinstating the complaint with respect thereto (Fortino v Fayetteville-Manlius Cent. School Dist., 16 AD3d 1124 [2005]). Since defendants failed to establish their prima facie entitlement to judgment as a matter of law in regard to the 90/180 category, it is unnecessary to reach the question of whether the plaintiff's papers were sufficient to raise a triable issue of fact as to same (Aronov v Leybovich, 3 AD3d 511 [2004]).

On the other hand, the court properly granted defendants' motion for summary judgment in regard to the other serious injury categories of the statute. The affirmed medical reports submitted by defendants made out a prima facie case that plaintiff Denise O'Sullivan did not sustain a serious injury within the meaning of the other categories set forth in Insurance Law § 5102 (d). This shifted the burden to said plaintiff to raise a triable issue of fact as to these categories (see Gaddy v Eyler, 79 NY2d 955 [1992]). The plaintiff unsuccessfully opposed this part of the motion. The plaintiff's doctors neither designated a numeric percentage of plaintiff's loss of range of [*3]
motion nor provided a qualitative assessment of her condition by comparing her limitations to her normal function, purpose and use (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]).
Decision Date: October 20, 2005