Opinion
15451, 306427/08
06-16-2015
Melody NIEVES, Plaintiff–Appellant, v. BUS MAINTENANCE CORP., Defendant–Respondent, Frederick Morancie, Defendant.
Mitchell Dranow, Sea Cliff, for appellant. Litchfield Cavo LLP, New York (Jerry Giardina of counsel), for respondent.
Mitchell Dranow, Sea Cliff, for appellant.
Litchfield Cavo LLP, New York (Jerry Giardina of counsel), for respondent.
ACOSTA, J.P., RENWICK, MOSKOWITZ, MANZANET–DANIELS, FEINMAN, JJ.
Opinion Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about May 14, 2014, which granted the motion of defendant Logan Realty Corp. & Logan Maintenance Corp. s/h/a Bus Maintenance Corp. (Logan) for summary judgment dismissing the complaint based on, among other things, the lack of a 90/180–day claim, unanimously affirmed, without costs.Plaintiff alleges that her foot was run over by a vehicle driven by Logan's employee, defendant Morancie, causing her to fall down and suffer various injuries. Logan made a prima facie showing that plaintiff did not sustain a 90/180–day serious injury within the meaning of Insurance Law § 5102(d). Logan relied on plaintiff's deposition testimony and medical records, which showed, among other things, that she stayed off her foot for “just about the first month” following the accident and was not confined to her home after the accident (see Ortiz v. Ash Leasing, Inc., 63 A.D.3d 556, 557, 883 N.Y.S.2d 180 [1st Dept.2009] ).
In opposition, plaintiff failed to present medical evidence showing that a medically determined, nonpermanent injury prevented her from performing substantially all of her usual and customary daily activities during the relevant period (Rojas v. Livo Car Inc., 85 A.D.3d 652, 653, 925 N.Y.S.2d 508 [1st Dept.2011] ; see Ortiz, 63 A.D.3d at 557, 883 N.Y.S.2d 180 ). That plaintiff missed more than 90 days of work is not determinative (Ortiz, 63 A.D.3d at 557, 883 N.Y.S.2d 180 ). Moreover, two months after the accident, her treating doctor told her that she could bear weight on her foot and that she no longer needed crutches.
It is noted, however, that the Court erred in determining that Morancie's criminal plea collaterally estopped plaintiff from asserting a claim of vicarious liability against employer Logan, as issues of fact existed (see City of N.Y. v. College Point Sports Ass'n Inc. 61 A.D.3d 33, 876 N.Y.S.2d 409 [2d Dept.2009] ).