Ramos v County of Suffolk

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Ramos v County of Suffolk 2020 NY Slip Op 34806(U) September 30, 2020 Supreme Court, Suffolk County Docket Number: Index No. 618262/2018 Judge: Joseph Farneti Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] SUFFOLK COUNTY CLERK 09/30/2020 02:35 PM NYSCEF DOC. NO. 58 INDEX NO. 618262/2018 RECEIVED NYSCEF: 09/30/2020 SHORT FORM ORDER INDEX No. • 618262/2018 CAL. No. . 201902321MV SUPREME COURT - STATE OF NEW YORK LAS. PART 37 - SUFFOLK COUNTY PRESENT: Hon. JOSEPH F ARNETI Acting Justice ofthe Supreme Court MOTIONDATE 2/20/20 (001) MOTION DATE 3/5120 (002) 7/30/20 ADJ. DATE Mot Seq. # 001 MotD #002 XMD -------------------------------------. -.----------- .---. ---- .x. RAMON ANTONI() RAMOS, DAVID J, RAIMONDO & ASSOCIATES Attorney for. Plaintiff 2780 Middle Country Road, Suite Jl2 Lake Grove, New York 11755 Plaintiff,. - against - DENNIS M. COHEN, ESQ. SUFFOLK COUNTY ATTORNEY JOO Veterans Memorial Highway P.O.Box6J00 Hauppauge; New York 11788 COUNTY OF SUFFOLK, SUFFOLK COUNTY POLICE DEPARTMENT, and POLICE OFFICER CHRISTOPHER VITALE, Defendants. ---.. -. ---------- . ------ .---. --------------------------- .----X Upori the following papers read on this e~filed motion for sunmiary judgment: Notice of Motion/Order to Show Cause and supporting papers by plaintiff. filed January 15 'JQ'JO; Notice of Cross Motion and supporting papers by defendants, filed February 25, 2020; Answering Affidavits and supporting papers_; Replying Affidavits and supporting papers by plairi'tiff. fi Ied May 5, 2020: by defendants filed, May 6. 2020; Other_; itis · · ORDERED that the motion by plaintiff Ramon Antonio Ramos for, inter alia, summary judgment in his favor and against defendants County of Suffolk, Suffolk County Police Department, and Police Officer Christopher Vitale is gtanted in part and denied in part; and itis further ORDERED thi;tt the cross motion by defendants Suffolk, Suffolk County Poliqe Department, and Police Officer Christopher Vitale for summary judgment dismissing the complaint is denied. PlaintiffRamori Antonio RRI1:1os comme11cedthisaction to recovetfor personal iiljµries he aliegedly sustained as a result of a motor vehicle,..bicycle accident that ocd.rrred on December 18, 2017, at approximately 4: 18 p.m, in the m,arked crpsswaik at the intersection ofThird Avenue and tJ nion · · Bo.ulevard in·rslip 1 New York. The accident allegedly occurred whert aSqffolk County Police Oepartment ("SCPD") vehicie, operaJed by Police Officer Christopher Vitale, attempted to make a left - - - - · · · · - ·.... ···-·····-···••,o•.•····· .. -·•-·---···- .............. _..... _.. - - - - - - - - - - - - - - · · · · · · ·.. "• .............. _.... - ............................. -.. -··········· ...... ,., ................ _ _ _ _ __ 1 of 6 [*FILED: 2] SUFFOLK COUNTY CLERK 09/30/2020 02:35 PM NYSCEF DOC. NO. 58 INDEX NO. 618262/2018 RECEIVED NYSCEF: 09/30/2020 Ramosv.County ofSv.ffolk Index No .. 618262/2.0.18 Page2 turn from westboun4 Union Boulevard onto southbound Third. Avenue, ·and struckplair.:i.tiff s bicycle, which was.traveling.eastbound on Union Boulevard in a marked crosswalk. Plaintiff now moves . for summary J-udw.nent in his favor Qn the_-.is.s.ue of clefetiqants' n.eglig~nce. He. also seeks to. strike defendants' first affirm,ative defense of culpable conduct, second affirmative defense of assumption of risk~ third affi.nnatiye defense of failure to state.:a cause of action pursuant to Insurance Law § 5012 (d), and seventh a:ffinnative defense premised upon Vehi~le and Traffic Law §§ 1103 and 1104. Plaintiffalso seeks an im1m;diate tri~ forthe purpose C>f assyssipg damages. Plaintiff argues that.Offiq~r Vitale W8$ negligent in violating~. inter alia; Velricle:and Traffic Law§ 1141, by failing to yield the right,-of-way to his bicycle. In :support of.his motion, plaJ.rttiff submits,· among other things, his affidavit, the transcripts of his testimony from his hearing held pursuant to General M ~nicipal La,w§ 50-h and frotn his ex~jnation befor.e.trial, and the transcriptofOffic er Vitale's testimony-from. his examination before trfal. :Defendants .cross'."move for s~rnafy judgment distnissing the..co01plaiµt. They· contend that Officer Vitale only can be held liable fot injuries to plaintiffif-he acted.in reckless disregard in the operation of'. his vehicle, artd that his conduct did not rise to the kvel of reckless ciisregard.. In support of their cross mot1011, d.efendariti; submit, among other th.irigs, the.transcripts ofplaintiff s testimony from his heating held pursuant to Gerietal Mti:nidpal Law § 50-h and from his examination before triai, and the· transcript of Officer Vitale's. testimony from his examfoation before trial. At"plairitiff's statutory hearing, he testified that he was.nding a'bicyde at the time·.ofthe accident, thatptior to the accident he had a greenJight in his favor, and thathe cfa:cked for onc0rriing traffic before crossing o,v(}r. Third Avenue i.t1 the marked crmi.swalk. Plaintiff testified tli1tt he· observed Officer Vitale' s vehicle, which was. traveling on Union Boulevard, with no lights illuminated arid no directional signais a:cti vated at that time. Plaintiff further testified that the accid.ent occurred when he was in the middle of the crosswalk,.and Officer Vitale's·vehicle s1;1,<;ldenly-futiiedleft, striking the left. side of his body. Plaintiff stated that there was a crosswalkcontrol device, but that he did not recall the signai displayed. The roads al_legedly were dry- and it allegedly was light cmtside at the time ofthe accident. Plaintiff stated that he •lost consciousness after the impact; and that he .did not regain con/)ciousness uniil .he was · hospital. at the At .plaintiff'.s deposition, he iestified.that prior to the accident, .h~ .stoppe_4-at the .i.ntersection to clwckfor oncoming traffic. Plaintiff further testified th,at Officer Vita1e·•s vehicle did not have any lights, signals,, .or siren~ activated at the 1ime of the accident. Officer Vitale' s vehicle allegedly did not slow down as .it approached the.intersection. Plaintifftestified·t hat prior lo the collision,"tllepedestrian traffic sigmii was lit with a ''doll.'' He.also testified that traffic was ''light" at the time of the accident,and he Sli.bs~qu¢ntlystated that there was no traffic. Plaintiff stated that he did n:ot speak to a police. officer regarding the.accident after it• occt;11Teci. . In plaintiffs affidavit, he avers that.prior to the a,ccident, he was riding his. bicycle ~asfbound on the sidewalk along Union Boule:vard, and that he· brought:his bicycle to a stop at the end the sidewalk at . the intersectionofUn ion Boulevard and Third Avenue. He further avers that he observed that the •Crossing-sign;;il on the opposite s.ideofthe. sidewalk on ThirdAv~111,1ewas illuminated~. and that he ----•------••-••-•••-•,.-••---•• -a•.,•,=-,••••..• • • • • • " - • • • - - - -························--····•······· ............ ••-······--··················· ·················-········ .. --~---····••·············-·"·····2 of 6 [*FILED: 3] SUFFOLK COUNTY CLERK 09/30/2020 02:35 PM NYSCEF DOC. NO. 58 INDEX NO. 618262/2018 RECEIVED NYSCEF: 09/30/2020 Ramos v County o:f'Suffoik IndexNo. 618262/:2018 Page3 checked for oncoming vehicletravelip.g on Thi.rd Ave.n.µe before crossing tli.e :&ubject crosswalk. He states that he observed Officer Vi tale's vehicle, which had no emergency'lights or directional signals a~th".ated, trav~lh1g westbound on Union Boulevard, at that time. Plaintiff av~rs.thatthe acci4ent occurred when his•. bicycle, which was halfway across: the marked crosswalk, crossing .over Third Avenue, was struck by Officer Vita1e's.vehicle, which attempted to make a left tum, withtmt signaling; onto · · · · southbound. Third Avenue. At Officer Vitale;~ deposition,, he testified that he was. operating a SCPD vehicle oh the .date of the accident He stated that he.was en toµte to a.r;all regarding .'•disorderly-males by ·a dumpster,"·.and· that he was.not responding to an emergency at that time. Officer Vitale explained that prior to· the accident, his vehicle was traveling westboW1d on Union Avenue with a green lightin its favor, and that he was waiting for "eastllound traffic to go straight'' b~fore .making a left tum at the intersection .. He testified that.his left directional was activated· at the ·t1me .of the accident~ He further explained that "a$ [he] was making the turn, [he] hacl already hit the sun glare, which.kind of blurred [his] vision: a little bit" Officer Vitale testified that: he di<,i not see ·plaintiff until the moment of impact He subsequently testified that he saw piaintiff"inaybea ·second ·before'' the impact. According to· Officer Vitale's·testimony , his supervisor, Officer Augustine, arrived at the scene of the accident ~o complete an accident report, and Officer Vitale explained to ·hiITI ho.w the accident occurred. . There allegedly were no ·othetwitnesses or vehicies• in the ' vicinity ofthe accident A person operating._-a bicycle. 9n a roadway is. entitled the rights and bears ·the .responsibilities of a driver operating a motor vehicle (see· Vehicle and TrafficLaw §" 1231;'Li11dner V Guzman, 16) AD3d 947,. 82 NYS3d 476 [2d Dept 2018]; Palma v Sherman, 55 AD3d 89-1, 891, 867 NYS2d 111 [2d Dept 2008]). In general,. an oper~tor ofa: QIQtor vehicle is.reqµjred to keep. a·reasoriably vigJlant lookout for bicyclists, and to operate the vehicle.with reasonable.care to avotd colliding with anyo-ne:on the road(see Chilinski v Maloney; 158 AD3d 1174, 70 NY$3d 63~ [ 4d Dept 2018]; Palma, v Sherman, supra)'. Veh.icle and Traff.i:c-.Law § 11.41 further requires that a -vehicle in.tending to turn left within an intersection or into an alley, private road,. or driveway must yield the right-of.:.way to any vehicle ~pproachi.ng from the opposite direction which ts within the intersection or so close as.to constitute art irtunediate-hazard.(see Ming...FaiJon. v Wagtr, 165-AD3d 1253, 87 NYS3d 82 [2d Depf2018}; Giannone, v Urd(lh(, 165 AD3d 1062, "86 NYS3d 5~2 [2d Dept 2018]; Lebron v Mensah, 161 AD3d 972, 76 NYS3d 219 [2d Dept 2018]). Nonetheless,. a bicyclist is· required use reasonable care for his or her own safeiy,. to kee.p a re:ason~bly vigihmtlookput for ..ve_hide~, and tp avo'.id pJac.ii;ig himself or herselfin -a druigetous position (see Flores. vR,,IJ.enstein, 175 AD3d 1490, 109 NYS3d 390 [2dDept 2019]; Palma to v Slierman, .tupra). · · Vehicle and Traffic LaW §.1104 quaiitiedly exempts· drivers of authorized ·emergency vehicles from certain traffic laws when they are involved in an "eme.rgency operationu (see. Fuchs v Ciiy of York, 18.6 AD3d 4$9~.l.26 NYS3d 652 [~cl O~pt:2020]; An.clerson v Suffolk Co,mty Police Dept., 181 AD3d 765, 121 NYS3d 304 [2d Dept 2020]). An "emergency operation;" as defined by Vehic1e and. Traffic Law§. il4-b, includes, among other things, ''responding to,..or working or ~ssisttng .. , . [a] police call." The privileges set forth in-Vehicle a,nd Traffic Law § 1104 ii:J,ch1de dhiregardirig regulations .governing the direction of movement or turning in specified directions (see Vehicle and Traffic Law§ 1104[a]; [b] [4 ]). Non~dieless, the privileges afforded by Vehicle. and Traffic Law.§ 1104 ''shall not New ---·····..·····-·-·-··-·····-·······-·-··-··--·· ·-·-···-··-·· ···•··-······-·--·--··--··-··· -·-·····------- -3 of 6 - - -·---····-····-···-···-· ...... ····-···-···--······-·-··--···········•--···-····-··-····---··-···-···--··-··--···--···--·····---·-··--·---·---·-·- ··-· [*FILED: 4] SUFFOLK COUNTY CLERK 09/30/2020 02:35 PM NYSCEF DOC. NO. 58 INDEX NO. 618262/2018 RECEIVED NYSCEF: 09/30/2020 Ramos v County of Suffolk Index No. 618262/2018 Page4 relieve the driver of an authorized emergency vehicle from the duty· to drive with due regard for the safety of all personsi nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others" (Vehicle and TrafficLaw § 1104 [e]; see Fuchs v City of New York, supra; Anderson vSu/folkCounty Police Dept., supra) .. Thus, the manner in which a driver of ari authorized emergency vehicle oper~tes the vehicle in an emergencysituation may not form the basis for civil liability to an injured third party except when that authorized emergency driver acted in reckless disregard for the safety ofother (see Saarinen v Kerr, 84NY2d 494,620 NYS2d297 [1994]; Fuchs vCity ofNew York, supra; Wong v City of New York; 183 AD3d 635, 121 NYS3d 610 [2d Dept 2020]). The "reckless disregard" standard requires proofthat 1'that the driver intentionally committed an act ofan unreasonable character, while disregarding a known or obvious risk that was so great a:s to make· it highly probable that harm would follow" (Calixto v City of New Yqrk, 185 AD3d 543; 544-545, 124NYS3d879[2dDept 2020], quoting Rios v City of New York, 144 AD3d 1011, 1011-1012,42NYS3d 54[2d Dept 2ff16J; see Wong v City of New York, supra). Defendants established that Officer Vitale was eligagecl in an emergency operation. atthe time of the accident {see Vehicle and Traffic Law § 114-b; Proce v Town ofStony Point; 18 5 AD 3d 97 5, 12 7 NYS3d 541 [2d Dept 2020]; Martinez v City of New York, 175AD3d 1284, 105 NYS3d 901 [2d Dept 2019]). Officer Vitale's deposition testimony inclicates that he wasresponding tu a call for assistance ·at the time ofthe accident. Contrary to plaintiff's contention, Officer Vitale'stestimony thathe was not respondingto an "emergency" at the time of the accident is irrelevant inasmuch as Vehicle and Traffic Law §.114-b evinces no·i'legislativeintentto vary the definition of 'emerge11,cy operation' based on individual police department incident classifications'' (Criscione v City of New York, 97 NY2d 152, 157, 736 NYS2d 656 [2001 ]; see Oddo v City ofBuffalo, 159 AD3d 1519, 72 NYS3d 706 [4d Dept 20181). In light of the foregoing, the branches of plaintiffs motion seeking summary judgment in his favor on the issue of defendants' negligence, and dismissal of defendants' seventh affirmative defense premised upon Vehicle and Traffic Law §§ 1103 and 1104 ·are denied. Nonetheless, defendants' submissions failed to establish, prima facie, that Officer Vitale did not act in reckless disregard for the safety of others in the operation of his vehicle (.Yee Rodriguez-Garcia v Southampton Police Dept., 185 AD3d 744,124 NYS3d 870[2D Dept2020]; Cordero v Nunez, 179 AD3d 635, 113 NYS3d 593 [2d Dept 2020]; Connelly v City ofSyracuse, 103 AD3d.1242, 959NYS2d 779 [4d Dept 2013]; Burrell v City ofNew York~ 49 AD3d 482,853 NYS2d 598 [2d Dept2008]; cf Jimenez~Cruzv City of New York, 170 AD3d 975, 95 NYS3d 573 [2d Dept 2019]). As previously indicated, Officer Vitale's.deposition testimony demonstrates that his visibility was obstructed by sun . glare before he attenipted to tµm. left,. and that he did not see plaintiffuntil at most "maybe one second" before the collision. Officer Vitale admitted that his vehicle had neither emergency lights nor sitens activate4 at the time of the accident.. MoreoverJ defendants presented.cori.flictihg evidenceas to whether Officer Vitale activated his vehicle's left turn .signal prior to the collision. As defendants failed to make a prim a facie case, .their motfon is denied, regardless ofthe sufficiency .of the opposing papers {see Winegrad, v New York [fnivi Med•. Ctr;, 64 NY2d 851, 487 NYS2dJ16 [1985]). As to the .branches ofpiaintiff s motion seeking .dismissal of defendants 1 first, secot1d, ari.q. third. affihnati ve defenses, when moving to dismiss an affimiati ve ·defense,. the plaintiff bears the burden of demonstrating illat the. affirmative defense .is without merit as a matt~r oflaw (see Edwards v Walsh, 169 _ _ ... ..,y~ ........ .,,.,y,,• .. •······· '""•'••·~·-··"-·"·-·-·-"···"·· 4 of 6 •••••• , •••••••• _,., .. ,.,_, •.,,, ..... , ..... ~ ..... ,,. _ _ _ _ _ - - - - - - - - [*FILED: 5] SUFFOLK COUNTY CLERK 09/30/2020 02:35 PM NYSCEF DOC. NO. 58 INDEX NO. 618262/2018 RECEIVED NYSCEF: 09/30/2020 Ramos v County of Suffolk Index No. 618262/2018 Page 5 AD3d 865, 94NYS3d 629 [2d Dept 2019]; Gonzalezv Wingate at Beacon, 137 AD3d 747, 26NYS3d 562 [2d Oept2016]; Bank of N.Y. v Penalver, 125 AD3d 796, 797, I NYS3d 825 [2d Dept 2015]). In the Context of a motion to dismiss ail affirmative defense, "the court must liberally construe the pleadings in favor of the party asserting the defense and give thatparty the benefit pf every reasonable inference" (LG Fundi11g, LLC v U11ited Senior Props. of Olathe, LLC, 181 AD3d 664, 665, 122 NYS3d 309 [2d Dept 2020], quoting Ba11k of N. Y. v Penalver; supra at 797; see Gonzalez v Wingate at Beacon, supra). As to defendants' first affirmative defense of culpable conduct, the issue of issue of a plaintiff's comparative negligence may be decided in the>context ofa stimmaryjudgment motion when the plaintiff moves fot summary judgment dismissing a defendailt's affirmative defense of comparative negligence (see HaiYingXiao v Martinez,185 AD3d 1014, 126 NYS3d 369 [2d Dept 2020]; Balladares v City of New York, 177 AD3d 942, 114 NYS3d 448 [2d Dept 2019]; Higashi v M&R Scarsdale R,est~, LLC, 176 AD3d 788, 111 NYS3d 92 [2d Dept2019]). Although a driver with the right.cof-way is entitled to anticipate that other drivers will obey traffic laws requiring them toyield:to him or her, a driver with the right-of-way still has a duty to use reasonable care to avoid a collision (st.?e Ballentine vPerrone, 179 AD3d 993, 114 NYS3d 696 [2d Dept2020]; FernandezvAmerican United Transp.,Inc., 177 AD3d 704, 113 NYS3d 145 [2d Dept 20 I 9]; Jeong Sooklee,-Son v Doe, 170 AD3d 973, 96 NYS3d 302 [2d Dept 2019]). Nonetheless, a driver with the right-of-way who only has seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision (see Balladares v City ofNew York, 177 AD3d 942, 114 NYS3d 448 [2d Dept 2019]; Fernandez v America11 United Transp.,lnc., supra; Enriquez vJoseph, 169 AD3d 1008, 94 NYS3d 599 [2d Dept2019]). Plaintiff's submissions were sufficient to establish his entitlement to summary judgment dismissing defendant's first affirmative defense of culpable co11duct (see Lebron v Mensah; 161 AD3 d 972, 76 NYS3d 219 [2dDept2018]; Foley v Santucci, 135 AD3d 8l3, 23 NYS3d338 [2d Dept2016J; Sir/in v Schreib, 117 AD3d 819, 985 NYS2d 688 [2d Dept 20014]). Contrary to defendants' contention, the certified police accident report is admissible under the business record exception of CPLR 4518 (a) inasmuch as the infot:mation contained in the police accident report was based upon information provided by Officer Vitale, who was a witness and police officer at the accident scene with a duty to report his observations to the reporting officer, Officer Augustine (see Lindsay vAcademyBroadway Corp;, 198 AD2d 641, 603 NYS2d 62z' [3d Dept 1993]; c/Memenza v Cole, 131 AD3d 1020, 16 NYS3d 287 [2d Dept2015]; Matter of Chu Man Woov Qiong Yun Xi, 106 AD3d 818,964 NYS2d 647 [2d Dept 2013]). Plaintiff demonstrated that he was entitled to assume that OfficerVitale would obey the traffiG laws requiring him to yield, and that he had at most seconds to react to avoid the collision (see Foley v Santucci, supra; Rohn v Aly, 167 AD3d 1054, 91 NYS3d256 [2d Dept2Cll8]). In opposition, defendants failed.tc,:raise a triable issue of fact(see Smith v Fuentes, 158 AD34 731, 68 NYS3d 739 [2d Dept 2018]; Fairy v Sahtµcci; supra), Thus,.piaintifrs.application tb dismiss defendants' affirmative defense of culpable condu.C:t·is granted. Plaintiff is also entitled to dismissal of defendants' second affirmative defense ofassumption .of risk. Plaintiff testified that he was rid1ng his bicycle on a roadwayat the time of ihe accident. "The rriere riding ofa bicycle does nobnean the assumption ofrisk by the rider thaihe may be hit by a.cat'' (Slory v Ho.wes, 41 AD2d 925, 925, 344 NYS2d 10 [1st Dept 1973]). lri opposition to piaintif:fs prima fade showing ofentidementto summacy juc:lgment dismissing defen4ants' affmnative defense ofassumption ____ ................. ......,-~.....,.,~............ __ ................ . ~ , ., ····································-~--------···--·--················· , ...... . 5 of 6 [*FILED: 6] SUFFOLK COUNTY CLERK 09/30/2020 02:35 PM NYSCEF DOC. NO. 58 INDEX NO. 618262/2018 RECEIVED NYSCEF: 09/30/2020 Ramosv County of Suffolk Index No. 618262/2018 Page 6 of risk,· defendants failed tci raise a triable issue of fact as to. the applicability of the assumption ofrisk doctrine (see Alvarez v Prospect Hosp., 68 NY2d 320,508 NYS2d 923 [1986]). Thus, plaintiffs application to dismiss defendants' second affirmative defense ofasSumption of risk is granted. With respect to defendants' third affirmative defense of failure to state a cause of action pursuant to Insurance Law § 5012 (d), no motion Hes under lies under CPLR 3211 ·(b) to strike such a defense, "as this amounts·to an endeavor by the plaintiff to test the sufficiency·of his or her own claim" (Lewis v [JS Bank N.A., 186 AD3d 694,. 697, 2020 NY Slip Op 04547 [2d Dept2020], quoting Jacob Marion, LLC v Jones, 168A.D3d 1043, 1044,9lNYS3d 120 [2d Dept2019];Mazzei v Kyriacou, 98 AD3d 1088, 951 NYS2d 557 [2d Dept 2012]). A plaintiff moving for summary judgment:on the issue of serious injury must make a prim a facie showing that he or she suffered serious injuries pursuant to Insurance Law § 5102 (d), and that his or her injury was causally related to the accident (see Wilcoxen v Palladilio, 122 AD3d 727,996 NYS2d 191 [2dDept2014]; Nicholson v Bader, l05AD3d 719,962 NYS2d 350 [2d Dept 2013];Alexander v Gordon, 9'5 AD3d 1245, 945 NYS2d 397 [2d Dept2012]; Kape/eris vRiordan, 89 AD3d 903, 933 NYS2d 92 [2d Dept 2011]). lnsuranceLaw § 5102 (d) defines "serious injwy" as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member; function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use ofa body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days ini.mediately following the occurrence of the injury or impairment'' As plainti ff failed to· address the issue of whether he· suStained a "serious injury" within the meaning oflnsurance Law § SO 12 (d) as a result of the subject accident in his moving papers, he failed to make aprima facie case that he sustained a serious injury within the meaning.of the statute (see Dowling y Valeus, 119 AD3d 834,989 NYS2d 386 [2d Dept 2014];Altamuta v OneBeaconlns. Group, 68 AD3d 792,889 NYS2d 472 [2d Dept2009]). Thus, plaintiffs application to dismiss defendants' third affirmative defense of failure to.state a cause of action pursuant to Insurance Law§ 5012 (d) is denied. Plaintiff's application for an immediate trial for the purpose of assessing damages is also denied. Accordingly, the motion by plaintiff is granted in part and denied in part, and the cross motion by defendants is denied. Dated: 'September 30; 2020 H . . . . eph :Farneti A FINAL DISPOSITION X NON-FINAL DISPOSITION ···--"··----------· 6 of 6 --·----··-·····-····-··············-··························-···-···--·-····-···-·-·············-······· . ng)usticeSupteme Court ·····-·---·-··············-····-······

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