Opinion
2019–05721 Index No. 605249/17
03-31-2021
James GONZALEZ, appellant, v. Margaret KRUMHOLZ, respondent.
Levine and Wiss, PLLC (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant. Picciano & Scahill, P.C., Bethpage, N.Y. (Keri A. Wehrheim of counsel), for respondent.
Levine and Wiss, PLLC (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.
Picciano & Scahill, P.C., Bethpage, N.Y. (Keri A. Wehrheim of counsel), for respondent.
LEONARD B. AUSTIN, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (William G. Ford, J.), dated April 15, 2019. The order, insofar as appealed from, granted the defendant's 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 insofar as appealed from, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
On December 13, 2016, the plaintiff, a pedestrian, was struck by a vehicle operated by the defendant. The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in the accident. The defendant moved 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 accident. In an order dated April 15, 2019, the Supreme Court, inter alia, granted the defendant's motion. The plaintiff appeals.
The defendant failed to meet her 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 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 defendant failed to eliminate triable issues of fact regarding 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 A.D.3d 969, 934 N.Y.S.2d 867 ; Rouach v. Betts, 71 A.D.3d 977, 897 N.Y.S.2d 242 ; cf. Richards v. Tyson, 64 A.D.3d 760, 761, 883 N.Y.S.2d 575 ).
Since the defendant failed to meet her prima facie burden, it is unnecessary to determine whether the submissions by the plaintiff 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 defendant's motion for summary judgment dismissing the complaint.
AUSTIN, J.P., BARROS, CONNOLLY and CHRISTOPHER, JJ., concur.