HEMSLEY v. VENTURA

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

Florence HEMSLEY, respondent, v. Jose VENTURA, et al., appellants.

Decided: April 29, 2008

REINALDO E. RIVERA, J.P., ROBERT A. LIFSON, HOWARD MILLER, EDWARD D. CARNI, and RANDALL T. ENG, JJ. Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Holly E. Peck of counsel), for appellants. Dominick W. Lavelle, Mineola, N.Y. (Mitchell Dranow of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Saitta, J.), dated July 5, 2007, which denied their motion for summary judgment dismissing the complaint on the ground 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 motion for summary judgment dismissing the complaint is granted.

Contrary to the determination of the Supreme Court, the defendants succeeded in making a prima facie showing with respect to the 90/180-day category of serious injury.   In opposition to the motion, the plaintiff failed to raise a triable issue of fact.   While the plaintiff testified at her deposition that as a result of the accident she was confined to her home for “[t]wo, three months” thereafter, and suffered certain limitations in her activities around the home, there was “no competent medical evidence indicating that she was unable to perform substantially all of her daily activities for not less than 90 out of the first 180 days as a result of the subject accident” (Hernandez v. DIVA Cab Corp., 22 A.D.3d 722, 723, 804 N.Y.S.2d 396;  see Sainte-Aime v. Ho, 274 A.D.2d 569, 570, 712 N.Y.S.2d 133).

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