Felicciardi v. Lankap Cab Corp.

122 A.D.3d 668, 996 N.Y.S.2d 136

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 2014
• Docket: 2014-04538
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendants Lankap Cab Corp. and Galib Islam Sarkar appeal from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated March 13, 2014, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff Maureen Felicciardi did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident.

Ordered that the order is affirmed, with costs.

The appellants failed to meet their prima facie burden of showing that the plaintiff Maureen Felicciardi 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 papers submitted by the appellants failed to adequately address the plaintiffs’ claim, set forth in the bill of particulars, that Maureen Felicciardi sustained a serious injury under the 90/180-day category of Insurance Law § 5102 (d) (see Che Hong Kim v Kossoff, 90 AD3d 969 [2011]).

Since the appellants did not sustain their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see Che Hong Kim v Kossoff, 90 AD3d at 969). Therefore, the Supreme Court properly denied the appellants’ motion for summary judgment dismissing the complaint insofar as asserted against them.

Mastro, J.E, Chambers, Cohen and Barros, JJ, concur. [Prior Case History: 2014 NY Slip Op 30807GJ).]