Sook Houng v. Beers

Appellate Division of the Supreme Court of New York

Sook Houng v. Beers

2017 NY Slip Op 5110, 151 A.D.3d 995, 54 N.Y.S.3d 449

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

DecidedJune 21, 2017

Docket2016-00144

StatusPublished

Cited by2 cases

This text of 2017 NY Slip Op 5110 (Sook Houng v. Beers) 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

Sook Houng v. Beers, 2017 NY Slip Op 5110, 151 A.D.3d 995, 54 N.Y.S.3d 449 (N.Y. Ct. App. 2017).

Pincite

Opinion

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (McDonald, J.), dated September 24, 2015, as granted that branch of the defendants’ motion which was 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 that branch of the defendants’ motion which was 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 is denied.

The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury *996 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 failed to submit competent medical evidence establishing, prima facie, that the plaintiff did not sustain a serious injury to the cervical region of her spine under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102 (d), as one of their experts found significant limitations in the range of motion of the cervical region of the plaintiff’s spine (see Mercado v Mendoza, 133 AD3d 833, 834 [2015]; Miller v Bratsilova, 118 AD3d 761 [2014]). In addition, 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).

Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was 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.

Balkin, J.P., Hall, Hinds-Radix and Connolly, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (McDonald, J.), dated September 24, 2015, as granted that branch of the defendants’ motion which was 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 that branch of the defendants’ motion which was 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 is denied.

The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury *996 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 failed to submit competent medical evidence establishing, prima facie, that the plaintiff did not sustain a serious injury to the cervical region of her spine under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102 (d), as one of their experts found significant limitations in the range of motion of the cervical region of the plaintiff’s spine (see Mercado v Mendoza, 133 AD3d 833, 834 [2015]; Miller v Bratsilova, 118 AD3d 761 [2014]). In addition, 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).

Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was 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.

Balkin, J.P., Hall, Hinds-Radix and Connolly, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

2017 NY Slip Op 5110, 151 A.D.3d 995, 54 N.Y.S.3d 449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sook-houng-v-beers-nyappdiv-2017.

Opinion

Related

Cite This Page — Counsel Stack