Negassi v. Royle
| Decision Date | 29 September 2009 |
| Docket Number | 2008-05132. |
| Citation | 2009 NY Slip Op 06816,65 A.D.3d 1311,885 N.Y.S.2d 760 |
| Parties | DANIEL NEGASSI, Appellant, v. HARRY H. ROYLE, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the defendants' motion which was 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) is denied, and the complaint is reinstated.
The plaintiff alleges that while riding a bicycle on April 28, 2005, in the Village of Hempstead, he was struck by a motor vehicle owned by the defendant Hofstra University and operated by the defendant Harry H. Royle, and sustained injuries as a result thereof. After the plaintiff commenced this action, the defendants moved 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).
The defendants moved 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). However, the defendants did not address the plaintiff's claim, clearly set forth in his bill of particulars, that he sustained 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 not less than 90 days during the 180 days immediately following the subject accident (see Rahman v Sarpaz, 62 AD3d 979 [2009]; Smith v Quicci, 62 AD3d 858 [2009]; Carr v KMO Transp., Inc., 58 AD3d 783 [2009]; Shaw v Jalloh, 57 AD3d 647 [2008]; Alexandre v Dweck, 44 AD3d 597 [2007]). In his bill of particulars dated approximately 14 months after the subject accident, the plaintiff stated that as a result of and since the subject accident, he was partially confined to his home and unable to work. In his deposition, the plaintiff testified that as a result of the subject accident, he had been unable to work. The defendants' orthopedic surgeon, Dr....
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