Calixto v Sherzoie

[*1] Calixto v Sherzoie 2007 NY Slip Op 52461(U) [18 Misc 3d 129(A)] Decided on December 28, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 28, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2007-74 Q C.

Jose L. Calixto and Luz M. Calixto, Appellants,

against

Mohammed Z. Sherzoie, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), dated September 22, 2006, deemed an appeal from a judgment of the same court, entered January 9, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 22, 2006 order granting defendant's cross motion for summary judgment on the threshold category of serious injury pursuant to Insurance Law § 5102 (d) and denying as moot plaintiffs' motion for summary judgment on the issue of liability, dismissed the action.

Order affirmed without costs.

On appeal, plaintiffs do not contest that defendant, upon his cross motion for summary judgment, established a prima facie case that plaintiffs did not sustain a serious injury pursuant to Insurance Law § 5102 (d). Rather, plaintiffs' only contention on appeal is that the court wrongfully found that they did not raise a triable issue of fact. Plaintiffs failed to submit any "competent medical evidence showing initial range of motion limitations . . . that were contemporaneous with the subject accident" (Knijnikov v Mushtaq, 35 AD3d 545, 547 [2006]). Instead, plaintiffs relied upon their own bill of particulars to establish their alleged initial range of motion limitations. As a bill of particulars does not constitute competent medical evidence, plaintiffs failed to rebut defendant's prima facie case. Accordingly, the motion court properly granted defendant's cross motion for summary judgment and dismissed the complaint.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: December 28, 2007