Opinion
2018–04696 Index No. 607347/16
08-07-2019
Eddie VEGA, et al., Appellants, v. Sacha Sanam MORADOF, et al., Respondents, et al., Defendant.
Vogel & Associates, P.C., Jericho, N.Y. (Bernard H. Vogel of counsel), for appellants. Sette & Apoznanski (Russo & Tambasco, Melville, N.Y. [Susan J. Mitola and Gerard Ferrara], of counsel), for respondents.
Vogel & Associates, P.C., Jericho, N.Y. (Bernard H. Vogel of counsel), for appellants.
Sette & Apoznanski (Russo & Tambasco, Melville, N.Y. [Susan J. Mitola and Gerard Ferrara], of counsel), for respondents.
ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, JOHN M. LEVENTHAL, ROBERT J. MILLER, JJ.
DECISION & ORDER ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendants Sacha Sanam Moradof and Payam Moradof for summary judgment dismissing the complaint insofar as asserted against them is denied.
The plaintiffs commenced this action, inter alia, to recover damages for personal injuries allegedly sustained by the plaintiff Eddie Vega (hereinafter the injured plaintiff) in a motor vehicle accident on February 9, 2016. The defendants Sacha Sanam Moradof and Payam Moradof (hereinafter together the defendants) moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. By order dated March 27, 2018, the Supreme Court, inter alia, granted the defendants' motion. The plaintiffs appeal from so much of the order as granted the defendants' motion.
The defendants failed to meet their prima facie burden of showing that the injured 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, 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 papers submitted by the defendants failed to adequately address the injured 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 A.D.3d 969, 934 N.Y.S.2d 867 ; Rouach v. Betts, 71 A.D.3d 977, 897 N.Y.S.2d 242 ). Since the defendants failed to meet their prima facie burden in this regard, it is unnecessary to determine whether the plaintiffs' submissions in opposition were sufficient to raise a triable issue of fact (see Che Hong Kim v. Kossoff, 90 A.D.3d at 969, 934 N.Y.S.2d 867 ).
Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.
SCHEINKMAN, P.J., DILLON, LEVENTHAL and MILLER, JJ., concur.