Goehringer v. Turrisi

2017 NY Slip Op 149, 146 A.D.3d 754, 43 N.Y.S.3d 920

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Bruno, J.), entered January 27, 2016, as granted the defendants’ motion for summary judgment dismissing the complaint on the ground that she 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 reversed insofar as appealed from, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is denied.

In support of 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 (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 955-956 [1992]), the defendants failed to establish their prima facie entitlement to judgment as a matter of law. The papers submitted by the defendants failed to adequately address the plaintiff’s claim, set forth in the bill of particulars, that she 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]; Rouach v Betts, 71 AD3d 977 [2010]). Since the defendants 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 Che Hong Kim v Kossoff, 90 AD3d at 969).

In light of our determination, we need not reach the plaintiff’s remaining contentions.

Accordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint.

Leventhal, J.P., Austin, Cohen, Hinds-Radix and LaSalle, JJ., concur.