Opinion
2012-07-11
MD Zahural HAQUE, appellant, v. CITY OF NEW YORK, et al., respondents.
Scott A. Wolinetz, New York, N.Y. (Ephrem Wertenteil of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and William K. Chang of counsel), for respondents.
Scott A. Wolinetz, New York, N.Y. (Ephrem Wertenteil of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and William K. Chang of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kerrigan, J.), dated September 24, 2010, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he 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 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 defendants failed to adequately address the plaintiff's claim that as a result of the subject accident, he sustained certain psychological injuries constituting a serious injury within the meaning of Insurance Law § 5102(d) ( see Krayn v. Torella, 40 A.D.3d 588, 833 N.Y.S.2d 406;see generally Kranis v. Biederbeck, 83 A.D.3d 903, 920 N.Y.S.2d 725;Krivit v. Pitula, 79 A.D.3d 1432, 912 N.Y.S.2d 789;Chapman v. Capoccia, 283 A.D.2d 798, 725 N.Y.S.2d 430).
Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff's opposition papers ( see Krayn v. Torella, 40 A.D.3d at 588, 833 N.Y.S.2d 406).