ONDER v. KAMINSKI

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Supreme Court, Appellate Division, Second Department, New York.

Ismet ONDER, et al., Appellants, v. Diane KAMINSKI, Respondent, et al., Defendant.

Decided: March 24, 2003

ANITA R. FLORIO, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN, SANDRA L. TOWNES and WILLIAM F. MASTRO, JJ. Elovich & Adell, Long Beach, N.Y. (Jason A. Greenberg, Lawrence E. Elovich, and A. Trudy Adell of counsel), for appellants. Murray Lemonick, Jericho, N.Y. (Kathleen M. Geiger of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (McCaffrey, J.), dated April 4, 2002, as granted the motion of the defendant Diane Kaminski for summary judgment dismissing the complaint insofar as asserted against her on the ground that the plaintiff Ismet Onder did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, with costs, the motion is denied, and the complaint is reinstated insofar as asserted against the defendant Diane Kaminski.

In support of their respective motions for summary judgment, the defendants submitted, inter alia, the plaintiffs' verified bill of particulars which alleged that the injured plaintiff was confined to his home and was unable to pursue his usual course of employment for approximately five months after the subject accident and received no-fault benefits and union benefits for lost wages.   They also submitted the testimony of the injured plaintiff at his examination before trial that he missed approximately five months of work.   The verified bill of particulars further alleged that the injured plaintiff sustained a ragged laceration of the left brow and forehead, which required 24 sutures, and the injured plaintiff's testimony described the laceration as one inch in length.   The defendant Diane Kaminski also submitted the affirmations of her physicians who examined the injured plaintiff one year after the accident and determined that his cervical and thoracolumbar sprains had resolved and that there was no neurological disability.

 The defendants' motion papers failed to establish a prima facie case that the injured plaintiff did not sustain a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for a period of not less than 90 days during the 180-day period immediately following the accident (see Insurance Law § 5102 [d];  DeSimone v. Mejia, 283 A.D.2d 454, 724 N.Y.S.2d 630;  Polizzi v. Won Jun Choi, 264 A.D.2d 830, 695 N.Y.S.2d 402;  Lee v. Rosio, 257 A.D.2d 561, 683 N.Y.S.2d 282).

 Furthermore, the defendants failed to make out a prima facie case that the injured plaintiff did not sustain a “significant disfigurement” (Insurance Law § 5102(d);  see O'Neill v. O'Neill, 261 A.D.2d 459, 690 N.Y.S.2d 277;  Prieston v. Massaro, 107 A.D.2d 742, 484 N.Y.S.2d 104).

In view of the foregoing, the defendant Diane Kaminski failed to establish her entitlement to judgment as a matter of law.   Accordingly, we need not consider the sufficiency of the plaintiffs' opposition papers (see Chaplin v. Taylor, 273 A.D.2d 188, 708 N.Y.S.2d 465).

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