Catana v. Hussain

78 A.D.3d 639, 909 N.Y.S.2d 920

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 3, 2010
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Solomon, J.), dated May 6, 2010, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

Contrary to the defendants’ assertions, they failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In support of their motion, the defendants relied on, among other things, the affirmed medical report of Dr. Daniel Arick, an otolaryngologist. Dr. Arick conducted a hearing examination on April 23, 2009, and determined that the plaintiff was “essentially” deaf in his right ear. Dr. Arick opined that this condition was permanent. Dr. Arick did not opine as to the cause of this specific finding. Thus, the defendants’ motion papers failed to demonstrate, prima facie, that the plaintiffs alleged hearing loss was not causally related to the subject accident (see Lubrano v Brown, 251 AD2d 383 [1998]).

Since the defendants did not sustain their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Fisher, J.P., Dillon, Balkin, Chambers and Sgroi, JJ., concur.