SANCHEZ v. WILLIAMSBURG VOLUNTEER OF HATZOLAH INC (2008)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Balter, J.), dated November 27, 2006, which denied their motion for summary judgment dismissing the complaint on the ground, inter alia, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

The defendants made a prima facie showing, through the plaintiff's deposition testimony, that the plaintiff did not sustain a serous injury within the meaning 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, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176;   Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 51-52, 789 N.Y.S.2d 281).   At his deposition, the plaintiff testified that, as a result of the subject motor vehicle accident, he missed approximately five weeks from his job as a welder.   The plaintiff's alleged injuries did not prevent him from performing “substantially all” of the material acts constituting his customary daily activities during at least 90 out of the first 180 days following the accident (see Letellier v. Walker, 222 A.D.2d 658, 635 N.Y.S.2d 682).   The evidence which the plaintiff presented in opposition to the motion failed to raise a triable issue of fact (see CPLR 3212[b] ).  In view of the foregoing, we need not address the defendants' remaining contention.