Che Hong Kim v. Kossoff

90 A.D.3d 969, 934 N.Y.2d 867

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 2011
• Status: Published

Opinion

The appellants 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]). The appellants’ motion papers failed to adequately address the plaintiffs claim, clearly set forth in the bills of particulars, that he sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Reynolds v Wai Sang Leung, 78 AD3d 919, 920 [2010]; cf. Tinsley v Bah, 50 AD3d 1019, 1019-1020 [2008]).

Since the appellants failed to meet 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 Reynolds v Wai Sang Leung, 78 AD3d at 920). Skelos, J.E, Angiolillo, Belen, Lott and Roman, JJ., concur.