Colon v. Lopez

Full title: Christian Colon, appellant, v. Juan Lopez, et al., respondents.

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Dec 16, 2015

2015 N.Y. Slip Op. 9245 (N.Y. App. Div. 2015)

Opinion

2014-11911

12-16-2015

Christian Colon, appellant, v. Juan Lopez, et al., respondents.

William Pager, Brooklyn, NY, for appellant. Cartiglia, Connolly & Russo, Garden City, NY (Lynne M. Nolan of counsel), for respondents.

RUTH C. BALKIN, J.P.

CHERYL E. CHAMBERS

JEFFREY A. COHEN

SYLVIA O. HINDS-RADIX, JJ. (Index No. 703056/12)

William Pager, Brooklyn, NY, for appellant.

Cartiglia, Connolly & Russo, Garden City, NY (Lynne M. Nolan of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Greco, Jr., J.), dated October 28, 2014, which granted the defendants' 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 reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

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; Gaddy v Eyler, 79 NY2d 955, 956-957). 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 serious injury under the 90/180-day category of Insurance Law § 5102(d) (see Che Hong Kim v Kossoff, 90 AD3d 969; Rouach v Betts, 71 AD3d 977).

In light of the defendants' failure 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). Therefore, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.

BALKIN, J.P., CHAMBERS, COHEN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court