Foster v. Franco

110 A.D.3d 678, 971 N.Y.S.2d 882

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 2, 2013
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Iannacci, J.), entered February 5, 2013, 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) as a result of the subject accident.

Ordered that the order is affirmed, with costs.

The defendants 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 defendants’ motion papers failed to adequately address the plaintiffs claim, clearly set forth in the bill of particulars, that he sustained serious injuries to his head and brain as a result of the accident (cf. Jilani v Palmer, 83 AD3d 786, 787 [2011]; Staff v Yshua, 59 AD3d 614 [2009]). In light of the defendants’ failure to meet their prima facie burden, it is unnecessary to consider the sufficiency of the plaintiffs opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Therefore, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint. Angiolillo, J.P., Hall, Roman and Cohen, JJ., concur.