Opinion
2019–06663 Index No. 605347/17
10-21-2020
Thomas HALL, appellant, v. Paul B. STARGOT, respondent.
Dell & Dean, PLLC (Joseph G. Dell and Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn and Christen Giannaros], of counsel), for appellant. Sette & Apoznanski (J. Cavin Flores and Gentile & Tambasco, Hicksville, N.Y. [Jill Dabrowski], of counsel), for respondent.
Dell & Dean, PLLC (Joseph G. Dell and Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn and Christen Giannaros], of counsel), for appellant.
Sette & Apoznanski (J. Cavin Flores and Gentile & Tambasco, Hicksville, N.Y. [Jill Dabrowski], of counsel), for respondent.
LEONARD B. AUSTIN, J.P., JEFFREY A. COHEN, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Thomas Feinman, J.), entered April 11, 2019. The order 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, on the law, with costs, and 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 is denied.
On June 30, 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. The Supreme Court granted the motion, and the plaintiff appeals.
The defendant failed to meet his 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 defendant's submissions 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. Calucci v. Baker, 299 A.D.2d 897, 750 N.Y.S.2d 675 ). While the defendant relied upon the transcript of the plaintiff's deposition testimony to establish, prima facie, his entitlement to judgment as a matter of law under the 90/180–day category, the testimony did not address the plaintiff's usual and customary daily activities during the specific relevant time frame, and did not compare the plaintiff's pre-accident and post-accident activities during that relevant time frame. Since the defendant failed to meet his 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 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 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.
AUSTIN, J.P., COHEN, IANNACCI and CHRISTOPHER, JJ., concur.