II. INABILITY TO PERFORM DAILY ACTIVITIES FOR 90 DAYS
At plaintiff’s deposition, when asked what plaintiff, who had been retired since 2004, could not do following the collision, she first listed climbing steps. After the Transit Authority defendants’ attorney questioned further whether she could climb steps before the collision, and plaintiff answered that she had encountered no difficulty, she listed dancing and lifting. After providing examples of household objects she lifted before but could not lift after the collision, the attorney pursued more questions regarding her climbing, dancing, and injury to her leg, hip, and shoulder.
The inquiry never returned to activities during the 180 days after the collision. Plaintiff never was asked whether or when she ever resumed the previous activities she listed, what other activities she could not do, or how long she was confined to her bed or home after the collision. She did offer, however, that her routine was altered to the extent of attending physical therapy three days per week for over three months immediately following the collision.
This testimony does not meet defendants’ burden to demonstrate the absence of an injury or impairment that prevented plaintiff’s daily activities during 90 of the 180 days following the collision. Defendants’ physicians establish that, as of their examinations of plaintiff approximately 20 months after the collision, her limitations in functioning were not attributable to the trauma of the collision. Having never examined plaintiff during the six months after the collision, defendants’ physicians do not conclude, nor offer any other objective medical support for the conclusion, that no injury or impairment attributable to the collision, which may have later resolved, prevented her daily activities during that period. Defendants thus fail to satisfy their initial burden to entitle them to summary judgment on this category of a serious injury.
III. DEFENDANTS’ FAILURE TO SATISFY THE PROCEDURAL REQUIREMENTS FOR SUMMARY JUDGMENT In addition to meeting the requisite evidentiary burden, a “motion for summary judgment shall be supported by a copy of the pleadings [C.P.L.R. § 3212(b)]. The pleading means a complete set of the pleadings or all of the pleadings. Defendants, in support of their motion and cross-motion for summary judgment, collectively present only their own answers and not defendant J’s answer. Although the attorney for the Transit Authority defendants represented J in a stipulation adjourning the motion and cross-motion, the Transit Authority defendants’ answer is not also on J’s behalf. Nor does any party explain that he never answered separately or never was served with the summons and complaint. Where the moving parties, in support of their summary judgment motions, fail to include all the pleadings filed or served, denial of the motions is warranted for that reason alone.
Nevertheless, several reasons support refraining from outright denial of defendants’ motion and cross-motion in their entirety on this basis. First, plaintiff’s opposition does not raise this deficiency in defendants’ support for their motion and cross-motion.
Second, denial of summary judgment motions based on such a deficiency may be limited to motions by parties who fail to present their own pleadings, or limited to the parts of the motions to which the missing pleadings pertain. J, the only party whose answer is missing, does not move for summary judgment. M seeks summary judgment in his favor, which to be fully favorable would include dismissal of cross-claims against him. The Transit Authority defendants specifically seek dismissal of all cross-claims as well as the complaint against them. The absence of J’s answer prevents the court from determining whether any cross-claims by J would be viable or even whether J interposes any cross-claims.
Given the court’s retention of plaintiff’s claim of an injury or impairment that prevented daily activities for 90 of the 180 days after the collision, retention of all cross-claims, whatever they allege and by whomever interposes them, is likewise warranted. Were the court to dismiss plaintiff’s entire complaint against the moving defendants, given the basis for their summary judgment motion and cross-motion, upon searching the record, the court also would dismiss the complaint against defendant J, rendering any cross-claims academic. Plaintiff’s failure to raise factual issues whether she sustained a serious injury from the collision July 15, 2005, supports dismissal of her claims equally against all defendants. Therefore the record is sufficient to determine whether the moving defendants are entitled to the relief they seek.
For the above reasons, the court grants defendants’ motion and cross-for summary judgment to the limited extent of dismissing plaintiff’s claims of a serious injury under the categories of a significant limitation and a permanent consequential limitation. The court denies defendants’ motion and cross-motion insofar as they seek to dismiss plaintiff’s claim under the 90 out of 180 days category, regardless of any deficiencies in plaintiff’s evidence, because defendants have not established a prima facie absence of such an injury.
Upon searching the record, the court also grants a judgment dismissing plaintiff’s claims of a serious injury under the categories of a significant limitation and a permanent consequential limitation against defendant J, since her failure to raise factual issues whether she sustained these categories of serious injury supports dismissal of these claims equally against J.
If an injury was caused by a motor vehicle mishap, the injured party may file a claim for damages suffered. The person who caused the injury may be absolved for the criminal liability, but one thing is sure, he can be held liable for the civil liabilities arising thereto.