Opinion
No. 2010–2550QC.
2012-03-6
Frantz HUGGINS and Rosalyn Huggins, Appellants, v. T & T MOVING AND STORAGE, INC. and Kabary Salem, Respondents.
Present: WESTON, J.P., RIOS and ALIOTTA, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 20, 2010, deemed from a judgment of the same court entered September 28, 2010 (see CPLR 5501[c] ). The judgment, entered pursuant to the July 20, 2010 order granting defendants' motion for summary judgment dismissing the complaint and denying as academic plaintiffs' motion for summary judgment on the issue of liability, dismissed the complaint.
ORDERED that so much of the appeal as was taken by Rosalyn Huggins is dismissed as abandoned; and it is further,
ORDERED that the judgment, insofar as reviewed, is reversed, without costs, so much of the order entered July 20, 2010 as denied as academic the branch of plaintiffs' motion seeking summary judgment in favor of plaintiff Frantz Huggins on the issue of liability and granted the branch of defendants' motion seeking summary judgment dismissing the complaint insofar as asserted by plaintiff Frantz Huggins is vacated, that branch of defendants' motion is granted only to the extent of finding, for all purposes in the action, pursuant to CPLR 3212(g), that plaintiff Frantz Huggins did not sustain a serious injury under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d), and the matter is remitted to the Civil Court for a new determination of the branch of plaintiffs' motion seeking summary judgment in favor of plaintiff Frantz Huggins on the issue of liability.
Plaintiffs commenced this action to recover for personal injuries allegedly sustained in a motor vehicle accident in 2004 and thereafter moved for summary judgment on the issue of liability. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d). By order entered July 20, 2010, the Civil Court granted defendants' motion and denied as academic plaintiffs' motion for summary judgment on the issue of liability. Both plaintiffs filed a notice of appeal from the order, but plaintiff Rosalyn Huggins subsequently settled with defendants and abandoned the appeal.
Defendants failed to make a prima facie showing that plaintiff Frantz Huggins (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 constitute his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident at issue (Insurance Law § 5102[d] ). The reports of defendants' physicians submitted in support of defendants' motion for summary judgment failed to address plaintiff's claim, as set forth in the verified bill of particulars, that he sustained a serious injury under this category ( see Aslam v. Hossain, 83 AD3d 749 [2011];Reynolds v. Wai Sang Leung, 78 AD3d 919 [2010];Encarnacion v. Smith, 70 AD3d 628 [2010] ). Since defendants failed to meet their prima facie burden in this regard, it is unnecessary to address the question of whether the papers submitted by plaintiff in opposition were sufficient to raise a triable issue of fact with respect to the 90/180–day category of serious injury ( see Strilcic v. Paroly, 75 AD3d 542 [2010];Coscia v. 938 Trading Corp., 283 A.D.2d 538 [2001] ).
Defendants met their prima facie burden of showing that plaintiff did not sustain a serious injury under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345 [2002];Gaddy v. Eyler, 79 N.Y.2d 955 [1992] ). In opposition to these branches of defendants' motion, plaintiff failed to raise a triable issue of fact. The affirmation of plaintiff's treating physician relied upon plaintiff's subjective representations that his neck injury from a 1997 accident was asymptomatic at the time of the 2004 accident, and that he had not injured his back in the 1997 accident, rendering the physician's opinion of limitations to plaintiff's cervical and lumbosacral spine speculative ( see Varveris v. Franco, 71 AD3d 1128 [2010];Penaloza v. Chavez, 48 AD3d 654 [2008];Vidor v. Davila, 37 AD3d 826 [2007] ). Furthermore, the MRI report prepared by plaintiff's radiologist failed to set forth his opinion on the cause of the lumbar disc bulge that he noted ( see Knox v. Lennihan, 65 AD3d 615 [2009];Ferber v. Madorran, 60 AD3d 725 [2009];Collins v. Stone, 8 AD3d 321 [2004] ).
In view of the foregoing, plaintiff's motion seeking summary judgment as to plaintiff Frantz Huggins on the issue of liability is no longer academic and, consequently, must be determined anew by the Civil Court.
Accordingly, the judgment, insofar as reviewed, is reversed, so much of the order entered July 20, 2010 as denied as academic the branch of plaintiffs' motion seeking summary judgment in favor of plaintiff Frantz Huggins on the issue of liability and granted the branch of defendants' motion seeking summary judgment dismissing the complaint insofar as asserted by plaintiff Frantz Huggins is vacated, that branch of defendants' motion is granted only to the extent of finding, for all purposes in the action, pursuant to CPLR 3212(g), that plaintiff Frantz Huggins did not sustain a serious injury under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) and the matter is remitted to the Civil Court for a new determination of the branch of plaintiffs' motion seeking summary judgment in favor of plaintiff Frantz Huggins on the issue of liability ( see Letts v. Bleichner, 56 AD3d 619 [2008];Buchanan v. Celis, 38 AD3d 819 [2007] ) and for all further proceedings.