Opinion
570695/11
03-08-2012
Frances Rice, Plaintiff-Appellant, v. Bobby S. Monroe and Verizon New York, Inc., Defendants-Respondents.
PRESENT: , J.P., Shulman, Torres, JJ
Plaintiff appeals from a judgment of the Civil Court of the City of New York, Bronx County (Lizbeth González, J.), entered May 20, 2011, based on a prior order granting, on default, defendants' motion for summary judgment dismissing the complaint. The judgment brings up for review an order of the same court (Ben R. Barbato, J.), dated May 17, 2010, which denied plaintiff's motion to vacate her default.
Per Curiam.
Judgment (Lizbeth González, J.), entered May 20, 2011, in favor of defendants dismissing the action and bringing up for review an order (Ben R. Barbato, J.), dated May 17, 2010, affirmed, with $25 costs.
Civil Court properly declined to vacate plaintiff's default in opposing defendants' motion for summary judgment dismissing the complaint, upon a finding that plaintiff failed to demonstrate the existence of a meritorious claim of "serious injury" within the meaning of Insurance Law § 5102(d), under either of the two categories of serious injury set forth in her bill of particulars. Plaintiff did not establish the existence of a cognizable claim for "permanent loss of use," since her medical evidence only indicated that she sustained limitations, not a total loss of use (see Oberly v Bangs Ambulance, 96 NY2d 295, 299 [2001]; Byong Yol Yi v Canela, 70 AD3d 584, 585 [2010]). Plaintiff's admission that she was confined to home for no more than one week, her return after said period to two separate nursing jobs, and her deposition testimony reflecting an active lifestyle, preclude any finding of serious injury in the 90/180-day category (see Wetzel v Santana, 89 AD3d 554, 555 [2011]; Graves v L & N Car Serv., 87 AD3d 878, 879 [2011]). Plaintiff's opposing affidavit, purporting to detail numerous restrictions of activities, "can only be considered to have been tailored to avoid the consequences of [her] earlier testimony" (De La Cruz v Hernandez, 84 AD3d 652 [2011], quoting Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320 [2000]).
In the absence of any allegation in plaintiff's bill of particulars that she sustained a serious injury under the "permanent consequential limitation" or "significant limitation" categories (see CPLR 3043[a][6]), and since plaintiff did not move to amend her bill of particulars to allege these additional categories (see Smith v Besanceney, 61 AD3d 1336, 1337 [2009]), the court properly declined to consider any such claims (see Lee v Laird, 66 AD3d 1302, 1303 [2009]; MacDonald v Meierhoffer, 13 AD3d 689 [2004]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.