Opinion
2001-02676
Submitted February 6, 2002.
February 25, 2002.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Glover, J.), dated April 10, 2000, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
D'Amato Lynch, New York, N.Y. (Thomas G. Darmody of counsel), for appellants.
Rubin Licatesi, P.C., Garden City, N.Y. (Jason Firestein of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., GLORIA GOLDSTEIN, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, STEPHEN G. CRANE, JJ.
ORDERED that the order is affirmed, with costs.
The defendants failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). In support of their motion for summary judgment, the defendants submitted the plaintiff's testimony at his examination before trial that he was unable to work for six months at his full-time employment as a result of this accident. The defendants also submitted the affirmed medical report of their orthopedist, which was based on an examination of the plaintiff performed three years after the accident. This evidence was insufficient to establish that the plaintiff did not sustain a medically-determined injury or impairment of a non-permanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for a period of not less than 90 days during the 180-day period immediately following the accident (see, Frier v. Teague, 288 A.D.2d 177; DePetres v. Kaiser, 244 A.D.2d 851, 852). Under these circumstances, it is unnecessary to consider the sufficiency of the plaintiff's opposition to the defendants' motion (see, Boland v. Dig Am., 277 A.D.2d 337, 338; Chaplin v. Taylor, 273 A.D.2d 188; Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 438).
SANTUCCI, J.P., GOLDSTEIN, LUCIANO, SCHMIDT and CRANE, JJ., concur.