Hussain v. Tejada

Appellate Division of the Supreme Court of New York

Hussain v. Tejada

99 A.D.3d 862, 952 N.Y.2d 284

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 17, 2012

StatusPublished

This text of 99 A.D.3d 862 (Hussain v. Tejada) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hussain v. Tejada, 99 A.D.3d 862, 952 N.Y.2d 284 (N.Y. Ct. App. 2012).

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Opinion

While we affirm the order appealed from, we do so on a ground different from that relied upon by the Supreme Court. 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 papers submitted by the defendants failed to adequately address the plaintiff’s claim, set forth in the bill 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 Takaroff v A.M. USA, Inc., 63 AD3d 1142, 1143 [2009]).

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 (id. at 1144).

[863]*863Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint. Mastro, J.E, Florio, Leventhal, Belen and Cohen, JJ., concur.

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While we affirm the order appealed from, we do so on a ground different from that relied upon by the Supreme Court. 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 papers submitted by the defendants failed to adequately address the plaintiff’s claim, set forth in the bill 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 Takaroff v A.M. USA, Inc., 63 AD3d 1142, 1143 [2009]).

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 (id. at 1144).

[863]*863Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint. Mastro, J.E, Florio, Leventhal, Belen and Cohen, JJ., concur.

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Bluebook (online)

99 A.D.3d 862, 952 N.Y.2d 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hussain-v-tejada-nyappdiv-2012.

Opinion

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