Paduani v. Acevedo
Cite as: Paduani v. Acevedo, 570959/11, NYLJ 1202579737548, at *1 (App. Tm., 1st, Decided August 30, 2012)
Before: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ.
Decided: August 30, 2012
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), dated July 7, 2011, which denied his motion for summary judgment dismissing plaintiff's first cause of action seeking damages for personal injuries.
Order (Elizabeth A. Taylor, J.), dated July 7, 2011, reversed, with $10 costs, motion granted, and plaintiff's first cause of action is dismissed. The Clerk is directed to enter judgment accordingly.
Defendant demonstrated entitlement to summary judgment dismissal of each of the claims of serious injury (see Insurance Law §5102[d]) underlying this action, including
that portion of the complaint premised upon the 90/180 day prong of the statute, the only claim now advanced by plaintiff. Defendant's moving submission included plaintiff's deposition testimony and bill of particulars, the latter alleging that plaintiff was confined to bed for one week and home for two weeks, and the former indicating that plaintiff returned to work within several days of the accident and that she missed no more than two or three weeks of work, intermittently, due to the accident. While the allegations set forth in plaintiff's bill of particulars as to her confinement may not have sufficed, standing alone, to meet defendant's prima facie burden of showing an absence of serious injury (see Correa v. Saifuddin, 95 AD3d 407 ), plaintiff's deposition testimony admitting that she returned to work within days of the accident was clearly sufficient for that purpose (see id.; Byong Yol Yi v. Canela, 70 AD3d 584 ; Brantley v. New York City Tr. Auth., 48 AD3d 313 ).
Plaintiff's present contention that the unsigned deposition transcript did not constitute admissible evidence is raised for the first time on appeal and, thus, is unpreserved for review (see Mariano v. New York City Tr. Auth., 38 AD3d 236
The papers filed by plaintiff in opposition to defendant's summary judgment motion, consisting only of an affirmation by plaintiff's counsel, failed to raise a triable issue on the question of serious injury.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.