Opinion
2013-03-6
Adel B. TANIOUS, et al., respondents, v. Eduardo SAWYERS, et al., appellants.
Gallo, Vitucci & Klar, New York, N.Y. (Yolanda L. Ayala of counsel), for appellants. Levine & Gilbert, New York, N.Y. (Harvey A. Levine of counsel), for respondents.
Gallo, Vitucci & Klar, New York, N.Y. (Yolanda L. Ayala of counsel), for appellants. Levine & Gilbert, New York, N.Y. (Harvey A. Levine of counsel), for respondents.
, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.
In an action to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Ruchelsman, J.), dated November 1, 2011, as denied their motion for summary judgment dismissing the complaint insofar as it sought to recoverdamages based on personal injuries allegedly sustained by the plaintiff Lorrinda A. Tanious on the ground that she 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 affirmed insofar as appealed from, with costs.
The defendants failed to meet their prima facie burden of demonstrating that the plaintiff Lorrinda A. Tanious 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, 350, 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' motion papers failed to adequately address the plaintiffs' claim, clearly set forth in the bill of particulars, that Lorrinda A. Tanious sustained a serious injury to the lumbar region of her spine as a result of the subject accident ( see Fudol v. Sullivan, 38 A.D.3d 593, 594, 831 N.Y.S.2d 504).
Since the defendants failed to meet their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact ( see generally Winegrad v. New York Unv. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment.