Opinion
14201 Index No. 25666/17E Case No. 2020-04152
09-28-2021
Nana KAAKYIRE, Plaintiff–Appellant, v. Angel D. SOTO et al., Defendants–Respondents. [And a Third-Party Action]
Crasto & Associates, P.C., Howard Beach (Thomas A. Torto of counsel), for appellant. Robert D. Grace, Brooklyn, for respondents.
Crasto & Associates, P.C., Howard Beach (Thomas A. Torto of counsel), for appellant.
Robert D. Grace, Brooklyn, for respondents.
Webber, J.P., Mazzarelli, Gonza´lez, Scarpulla, Pitt, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered on or about October 8, 2019, which, to the extent appealed from as limited by the briefs, granted defendants’ motion for summary judgment dismissing the claim of serious injury under the 90/180–day category of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion denied.
Defendants established that plaintiff did not sustain a serious injury under the 90/180–day category by relying on plaintiff's allegations in her bill of particulars that she was confined to bed for just three weeks immediately following the accident and for approximately one month after her left knee surgery (see Fuentes v. Sanchez, 91 A.D.3d 418, 420, 936 N.Y.S.2d 151 [1st Dept. 2012] ). However, in opposition, plaintiff raised an issue of fact by submitting an affirmation of her physician opining that plaintiff was totally disabled and unable to work for more than 90 days following the accident, which corroborated her testimony that she was disabled from work for six months following the accident (see Lazzari v. Qualcon Constr., LLC, 162 A.D.3d 440, 441–442, 78 N.Y.S.3d 126 [1st Dept. 2018] ; Martinez v. Goldmag Hacking Corp., 95 A.D.3d 682, 683, 944 N.Y.S.2d 555 [1st Dept. 2012] ).
If plaintiff prevails on her 90/180–day or other serious injury claims, she will be entitled to recover damages to compensate her for all injuries caused by the accident, whether or not they meet the meet the serious injury threshold (see Vishevnik v. Bouna, 147 A.D.3d 657, 658, 48 N.Y.S.3d 93 [1st Dept. 2017] ; Martinez, 95 A.D.3d at 683, 944 N.Y.S.2d 555 ).