Opinion
2005-1095 QC.
Decided March 9, 2006.
Appeal from an order of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), entered April 27, 2005. The order, insofar as appealed from, denied defendant's motion for summary judgment in regard to the 90/180-category of Insurance Law § 5102 (d).
Order, insofar as appealed from, reversed without costs and defendant's motion for summary judgment granted.
PRESENT: PESCE, P.J., WESTON PATTERSON and RIOS, JJ.
Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff failed to satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d). The motion court granted defendant's motion as to all categories of the serious injury statute except the 90/180-day category and the defendant appeals.
In our opinion, the order, insofar as appealed from, should be reversed and defendant's motion for summary judgment granted. The defendant's submissions in support of his motion for summary judgment, including plaintiff's bill of particulars, his medical records and the affirmed reports of defendant's examining physicians, were sufficient to make a prima facie showing that plaintiff did not satisfy the serious injury threshold with regard to the 90/180-day category of the statute. This shifted the burden to plaintiff to raise a triable issue of fact ( see Gaddy v. Eyler, 79 NY2d 955).
Plaintiff alleged in his deposition and in his affidavit in opposition to defendant's motion that he stayed home for four months after the accident and was unable to work at his job as an accountant. However, plaintiff presented no proof of employment and stated in his bill of particulars that he was not employed at the time of the accident and was not submitting a claim for lost wages. Further, there was no competent medical evidence indicating that he was unable to perform substantially all of his daily activities for not less than 90 out of the first 180 days as a result of the subject accident ( Gonzalez v. Green, 24 AD3d 939; Hernandez v. DIVA Cab Corp., 22 AD3d 722).
Pesce, P.J., Weston Patterson and Rios, JJ., concur.