Nelson v. Distant

• Decision Date: 11 September 2003
• Citation: 308 A.D.2d 338,764 N.Y.S.2d 258
• Parties: OCTAVIA NELSON, Respondent,<BR>v.<BR>EDWARD S. DISTANT, Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

308 A.D.2d 338

764 N.Y.S.2d 258

OCTAVIA NELSON, Respondent,

v.EDWARD S. DISTANT, Appellant, et al., Defendant.

Decided September 11, 2003.

Concur — Mazzarelli, J.P., Andrias, Friedman, Marlow and Gonzalez, JJ.

Plaintiff, Octavia Nelson, alleged that on October 15, 1995, she was a passenger in a vehicle which was involved in an accident with two other vehicles, one owned and operated by defendant-appellant Edward Distant, and the other owned and operated by defendant Derrick Lewis. Plaintiff claimed that due to defendants' negligence, she sustained a serious injury as defined in Insurance Law § 5102 (d). Distant moved for summary judgment dismissing the complaint on the ground that plaintiff failed to establish, as a threshold matter, she had suffered a serious injury, and Lewis cross-moved for the same relief. The Supreme Court granted the motion and cross motion to the extent of finding that plaintiff had failed to raise any issues of fact as to serious injury with the exception of the 90/180 day category. Distant appeals from that part of the order, adverse to him.

Distant met his burden of proof by submitting medical evidence that plaintiff did not sustain a "medically determined injury or impairment of a non-permanent nature" (Insurance Law § 5102 [d]; see also Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Licari v Elliott, 57 NY2d 230 [1982]). Distant submitted plaintiff's medical records and an independent medical report, none of which demonstrated or supported a conclusion that plaintiff's injury required her to stay home from work or prevented her from performing her usual and customary activities for 90 of the 180 days following the accident. In addition, Distant relied upon plaintiff's deposition testimony and her bill of particulars in which she stated that she missed 11 months of work as a home nursing health aide, but could not remember if any doctors told her she had to stay home from work.

The burden then shifted to plaintiff to raise a triable issue of fact that she was "curtailed from performing * * * usual activities to a great extent rather than some slight curtailment" (Licari, 57 NY2d at 236; accord Gaddy v Eyler, 79 NY2d 955, 957 [1992]).^[*] The record is devoid of any objective medical evidence which substantiates plaintiff's 90/180 day claim (see Toure, 98 NY2d at 357 ["issue is simply whether plaintiff offered sufficient objective medical evidence to establish a qualifying injury or impairment"]). Although plaintiff testified that she could no longer dance or mop and could not walk like she used to, the record lacks any...