Correa v. Asm Saifuddin

Freedman, J.,

dissents in a memorandum as follows: I respectfully dissent and would reverse because I disagree with the majority’s opinion that defendants failed to meet their initial burden for their summary judgment motion on plaintiffs “90/ 180-day” claim (see CPLR 3212 [b]). Plaintiffs own deposition testimony sufficed to make a prima facie showing that defendants were entitled to judgment, and by finding otherwise the majority departs from an established line of rulings by this Court.

At his deposition, plaintiff testified that, following his accident, he was confined to his bed and his home for about one month. According to plaintiff, his physician told him he could not work, and plaintiff added that he did not feel “ready to work,” could not walk like before, and could not bend over.

The majority acknowledges that in the past this Court has found that, in connection with 90/180-day claims, the defendants meet their initial burden under CPLR 3212 (b) by submitting the plaintiffs’ testimony or bills of particulars indicating that their injuries did not significantly impair their activities for 90 days (see Mitrotti v Elia, 91 AD3d 449 [2012] [bill of particulars stated that plaintiff was confined to bed for two weeks and home for two months]; Bonilla v Abdullah, 90 AD3d 466, 468 [2011] [plaintiff stated in affidavit that she was only confined to bed and home for a few weeks after accident]; Wetzel v Santana, 89 AD3d 554, 555 [2011] [confined to bed for two or three days]; Perez v Vasquez, 71 AD3d 531, 532 [2010] [confined to bed and home for three weeks after accident]; Byong Yol Yi v Canela, 70 AD3d 584 [2010] [plaintiff was not confined and returned to work within 90 days of the accident]; Linton v Nawaz, 62 AD3d 434, 443 [2009], affd 14 NY3d 821 [2010] [plaintiff returned to work part-time 79 days after his accident]; Guadalupe v Blondie Limo, Inc., 43 AD3d 669 [2007] [plaintiff confined for a few weeks]). But the majority downplays how frequently and consistently we have ruled on this issue, and makes no attempt to distinguish this action from the earlier cases.

Once defendants met their initial burden on the motion, plaintiff was required to come forward with evidence raising a triable issue of fact. However, plaintiffs submissions do not suffice. His statement that he did not feel ready to work, could not walk as he did before the accident, and could not bend over do not demonstrate that he was unable to perform “substantially all” of his “usual and customary daily activities” for at least 90 of the 180 days following the accident (Insurance Law § 5102 [d]; see also Perl v Meher, 18 NY3d 208, 220 [2011] [plaintiffs *411subjective description of her injuries insufficient to defeat summary judgment]; Blake v Portexit Corp., 69 AD3d 426, 426-427 [2010]). Moreover, plaintiff did not support his claim about his impairment with any medical proof (see Lazu v Harlem Group, Inc., 89 AD3d 435, 436 [2011]; Taylor v American Radio Dispatcher, Inc., 63 AD3d 407, 408 [2009]; Brantley v New York City Tr. Auth., 48 AD3d 313 [2008]).

Accordingly, I would grant defendants summary judgment and dismiss the complaint.