FIRST DEPARTMENT REVERSES SUMMARY JUDGMENT PURSUANT TO 90/180 PRONG OF INSURANCE LAW §5102(d)
July 4, 2016 Posted By Miles A. Linefsky Insurance Coverage
In Tejwati Seepersaud v. L&M Bus Corp. (Entered June 23, 2016), the Appellate Division, First Department reversed the decision of Bronx County Supreme Court (Alison Y. Tuitt, J.) which granted summary judgment to the defendant on threshold grounds pursuant to Insurance Law §5102(d). Justice Tuitt specifically found that the defendant was entitled to summary judgment in the “90/180” category, which requires
[a] medically determined injury or impairment of a non-pernanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.
See Insurance Law §5102(d).
According to the First Department, the defendant failed to meet its prima facie burden on summary judgment with respect to this “90/180” claim. Specifically, the defendant’s experts did not examine plaintiff until more than three years following the subject accident and failed to opine regarding her condition during the initial 180 days following the accident. Additionally, no evidence was set forth in the form of medical records, deposition testimony or otherwise to attempt to refute plaintiff’s account of her condition during these six months. As such, the First Department found that the lower court committed reversible error, overturning the decision without review of plaintiff’s opposition to the motion.
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