BYRNES v. HERTZ CORPORATION (2000)

Plaintiffs commenced this action to recover damages for injuries allegedly sustained by Sheila M. Byrnes (plaintiff) in an automobile accident.   Supreme Court erred in granting defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).   With respect to plaintiffs' allegation that plaintiff suffered a serious injury under the “90-out-of-180 day rule” (Gaddy v. Eyler, 79 N.Y.2d 955, 958, 582 N.Y.S.2d 990, 591 N.E.2d 1176), defendants met their initial burden of establishing as a matter of law that plaintiff was not prevented from performing substantially all of the material acts that constituted her usual and customary daily activities for more than 90 days during the 180 days immediately following the accident, and plaintiffs failed to raise a triable issue of fact (see, Licari v. Elliott, 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 441 N.E.2d 1088;  Borino v. Little, 273 A.D.2d 262, 709 N.Y.S.2d 575).   Defendants, however, failed to establish as a matter of law that the alleged injuries to plaintiff's thumb and knee did not result in a permanent consequential limitation of use of a body organ or member or a significant limitation of use of a body function or system (see, Thomas v. Hulslander, 233 A.D.2d 567, 649 N.Y.S.2d 252;  see also, Hawkins v. Forshee, 245 A.D.2d 1091, 666 N.Y.S.2d 88).   Because defendants failed to meet their initial burden with respect to those categories of serious injury, we do not consider the sufficiency of plaintiffs' opposing papers with respect to those categories (see, Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063, 601 N.Y.S.2d 463, 619 N.E.2d 400).

Order unanimously reversed on the law with costs, motion denied and complaint reinstated.

MEMORANDUM: