Opinion
2012-10-24
Johnny ADDISON, respondent, v. Eris JOSEPH–WALTERS, appellant.
Martin, Fallon & Mullé, Huntington, N.Y. (Richard C. Mullé of counsel), for appellant. Myers, Singer & Galiardo, LLP, New York, N.Y. (Christopher D. Galiardo of counsel), for respondent.
Martin, Fallon & Mullé, Huntington, N.Y. (Richard C. Mullé of counsel), for appellant. Myers, Singer & Galiardo, LLP, New York, N.Y. (Christopher D. Galiardo of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated October 27, 2011, which denied her 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 defendant failed to meet her prima facie burden of demonstrating 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 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197;Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The defendant's motion papers failed to adequately address the plaintiff's claim, clearly 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 ( cf. Tinsley v. Bah, 50 A.D.3d 1019, 1019–1020, 857 N.Y.S.2d 180).
Since the defendant failed to meet her 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 1020, 50 A.D.3d 1019, 857 N.Y.S.2d 180).
Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.