Bover v Li

[*1] Bover v Li 2010 NY Slip Op 51061(U) [27 Misc 3d 143(A)] Decided on June 11, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and RIOS, JJ
2009-1306 Q C.

Elina Bover, M.D., Respondent,

against

Jian Cheng K. Li and ROSITA LI, Appellants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered September 25, 2008. The order denied defendants' motion for summary judgment.

ORDERED that the order is reversed without costs and defendants' motion for summary judgment dismissing the complaint is granted.

Plaintiff commenced this action to recover for personal injuries allegedly sustained in a motor vehicle accident. Defendants 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). By order entered September 25, 2008, the Civil Court denied defendants' motion for summary judgment, finding that defendants had failed to address plaintiff's claim of injuries, as set forth in her verified bill of particulars, under the 90/180-day category of serious injury.

Plaintiff conceded at her deposition and in her verified bill of particulars that she missed no more than three or four days from work and was confined to her home and incapacitated from household duties for only one week as a result of the accident, admissions which were noted in the affirmed report of defendants' examining orthopedist submitted in support of defendants' motion for summary judgment. Consequently, as a result of plaintiff's admissions, defendants made the necessary prima facie showing that plaintiff did not sustain a medically determined injury of a non-permanent nature that prevented her from performing substantially all of her usual and customary activities for 90 of the 180 days immediately following the accident (Insurance Law § 5102 [d]; see Richards v Tyson, 64 AD3d 760 [2009]; Berson v Rosado Cab Corp., 62 AD3d 636 [2009]). We further find that defendants demonstrated, prima facie, that plaintiff did not suffer a serious injury under the permanent consequential limitation of use of a body organ or member and significant limitation of use of a body function or system categories [*2]of serious injury. In opposition to defendants' motion, plaintiff failed to submit competent medical evidence that she sustained a serious injury under any of these categories (see Giannini v Cruz, 67 AD3d 638 [2009]; LaMarre v Michelle Taxi, Inc., 60 AD3d 911 [2009]; Ponciano v Schaefer, 59 AD3d 605 [2009]). Accordingly, the order is reversed and defendants' motion for summary judgment dismissing the complaint is granted.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: June 11, 2010