Lee v Eun Hee Rho

[*1] Lee v Eun Hee Rho 2009 NY Slip Op 51720(U) [24 Misc 3d 141(A)] Decided on July 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 29, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2008-929 Q C.

Sok K. Lee, Appellant,

against

Eun Hee Rho, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered January 14, 2008, deemed from a judgment of the same court entered April 2, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 14, 2008 order granting defendant's motion for summary judgment, dismissed the complaint.

Judgment reversed without costs, order entered January 14, 2008 vacated and defendant's motion for summary judgment granted only to the extent of finding for all purposes in the action, pursuant to CPLR 3212 (g), that plaintiff did not suffer a serious injury under the permanent consequential limitation and significant limitation of use categories of Insurance Law § 5102 (d).

Plaintiff commenced this action to recover for serious injuries allegedly sustained in a motor vehicle accident. Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The court granted defendant's motion for summary judgment, and the instant appeal by plaintiff ensued. The appeal is deemed to be from the judgment dismissing the complaint that was subsequently entered pursuant to the order (see CPLR 5501 [c]).

Defendant failed to make a prima facie showing that plaintiff had sustained a serious injury with regard to the 90/180-day category of Insurance Law § 5102 (d). Defendant's medical experts failed to adequately address the allegation contained in plaintiff's verified bill of particulars that plaintiff had 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 daily activities for not less than 90 days during the 180 days immediately following the accident (see Neuburger v Sidoruk, 60 AD3d 650 [2009]; Shaw v Jalloh, 57 AD3d 647 [2008]; Breland v Karnack Corp., 50 AD3d 613 [2008]).

However, defendant met her prima facie burden of showing that plaintiff did not sustain a [*2]serious injury under the permanent consequential limitation and significant limitation of use categories of Insurance Law § 5102 (d) as a result of the subject accident and shifted the burden to plaintiff to raise a triable issue of fact as to these two categories (see Gaddy v Eyler, 79 NY2d 955 [1992]). Plaintiff failed to meet his burden since the affirmations of his treating physician and radiologist did not address the findings by defendant's examining radiologist of degenerative disc disease in plaintiff's cervical spine. The omission rendered speculative the treating physician's conclusion that plaintiff's injuries and limitations were caused by the accident and were permanent in nature (see Chery v Jones, 62 AD3d 742 [2009]; Roman v Fast Lane Car Serv., Inc., 46 AD3d 535 [2007]).

Accordingly, the judgment is reversed, the order is vacated, and defendant's motion for summary judgment is granted only to the extent of finding for all purposes in the action, pursuant to CPLR 3212 (g), that plaintiff did not suffer a serious injury under the permanent consequential limitation and significant limitation of use categories.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 29, 2009