Opinion
2012-04-24
Wakela JACKSON, respondent, v. Rana DRAZ, et al., appellants.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Mead, Hecht, Conklin & Gallagher, LLP [Elizabeth Hecht], of counsel), for appellants. Evan W. Kohn (Paris & Chaikin, PLLC, New York, N.Y. [Jason L. Paris], of counsel), for respondent.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Mead, Hecht, Conklin & Gallagher, LLP [Elizabeth Hecht], of counsel), for appellants. Evan W. Kohn (Paris & Chaikin, PLLC, New York, N.Y. [Jason L. Paris], of counsel), for respondent.
REINALDO E. RIVERA, J.P., RANDALL T. ENG, CHERYL E. CHAMBERS, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated July 19, 2011, as denied their 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).
ORDERED that the order is affirmed insofar as appealed from, with costs.
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 she sustained a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident ( see Aujour v. Singh, 90 A.D.3d 686, 686–687, 934 N.Y.S.2d 240; Bangar v. Man Sing Wong, 89 A.D.3d 1048, 1049, 933 N.Y.S.2d 586).
Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint, without regard to the sufficiency of the papers submitted by the plaintiff in opposition ( see Aujour v. Singh, 90 A.D.3d at 687, 934 N.Y.S.2d 240; Bangar v. Man Sing Wong, 89 A.D.3d at 1049, 933 N.Y.S.2d 586).