        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

112
CA 11-01637
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


AYESHA DELK, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

KENNETH J. JOHNSON, DEFENDANT-RESPONDENT.


LAW OFFICES OF EUGENE C. TENNEY, BUFFALO (NATHAN C. DOCTOR OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

HAGELIN KENT LLC, BUFFALO (SEAN M. SPENCER OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Frederick
J. Marshall, J.), entered November 10, 2010 in a personal injury
action. The order, among other things, granted defendant’s motion for
summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when a vehicle owned and operated by
defendant rear-ended the vehicle she was driving. Defendant moved for
summary judgment dismissing the complaint on the ground that plaintiff
did not sustain a serious injury within the meaning of Insurance Law §
5102 (d), and plaintiff cross-moved for, inter alia, partial summary
judgment on liability. Supreme Court granted defendant’s motion and
dismissed the complaint. We now affirm.

     According to her bill of particulars, plaintiff sustained a
serious injury under the permanent loss of use, the permanent
consequential limitation of use, the significant limitation of use,
and the 90/180-day categories of serious injury. In opposition to the
motion, however, plaintiff abandoned her contentions with respect to
all categories of serious injury with the exception of the 90/180-day
category, nor does she contend on appeal that the court erred in
denying her cross motion (see Ciesinski v Town of Aurora, 202 AD2d
984). We therefore consider only whether the court properly granted
that part of defendant’s motion with respect to the 90/180-day
category.

     Defendant met his initial burden on the motion by submitting the
affirmed reports of two physicians who examined plaintiff at his
request and concluded that there was no objective evidence that
                                 -2-                           112
                                                         CA 11-01637

plaintiff sustained a serious injury as a result of the accident (see
Lauffer v Macey, 74 AD3d 1826, 1827). In addition, defendant
submitted plaintiff’s deposition testimony in which she testified
that, although she missed time from her physically demanding part-time
job, she was still able “to perform substantially all of the material
acts that constituted [her] usual and customary daily activities”
(Robinson v Polasky, 32 AD3d 1215, 1216).

     In opposition to the motion, plaintiff submitted, inter alia, an
MRI report and an affirmation from her treating physician. Although
both submissions raise triable issues of fact whether plaintiff
sustained an injury in the accident, neither is sufficient to raise a
triable issue of fact whether that injury prevented her “ ‘from
performing substantially all of the material acts which constitute
[her] usual and customary daily activities’ for at least 90 out of the
180 days immediately following the accident” (Hoffmann v
Stechenfinger, 4 AD3d 778, 780, quoting Insurance Law § 5102 [d]; see
Elmer v Amankwaah, 2 AD3d 1350). Even assuming, arguendo, that
plaintiff’s inability to return to her part-time employment curtailed
her daily activities to a great extent, we conclude that plaintiff
nevertheless failed to establish that she was disabled from working 90
out of the 180 days immediately following the accident (see Travis v
Batchi, 18 NY3d 208, 220).




Entered:   February 10, 2012                    Frances E. Cafarell
                                                Clerk of the Court
