ANAGNOSTOPOULOS v. ROSENMAN (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (James P. McCormack, J.), dated December 10, 2021.  The order 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 subject accident.

ORDERED that the order is affirmed, without costs or disbursements.

The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle 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 subject accident.  In an order dated December 10, 2021, the Supreme Court denied the motion.  The defendant 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., Inc., 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 claims, 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 Despinos–Cadet v. Stein, 209 A.D.3d 978, 980, 177 N.Y.S.3d 320;  Hall v. Stargot, 187 A.D.3d 996, 996, 131 N.Y.S.3d 250;  Rodriguez v. McCullough, 184 A.D.3d 735, 735, 124 N.Y.S.3d 218).

Since the defendant failed to meet his prima facie burden, it is not necessary to determine whether the submissions by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Che Hong Kim v. Kossoff, 90 A.D.3d 969, 969, 934 N.Y.S.2d 867).

DILLON, J.P., BRATHWAITE NELSON, MILLER and MALTESE, JJ., concur.