SALDARRIAGA v. Nicholas Viola, respondent. (2012)

In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Agate, J.), entered May 26, 2011, as granted that branch of the motion of the defendant Nicholas Viola which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Juan Saldarriaga against him on the ground that the plaintiff Juan Saldarriaga did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

ORDERED that the appeal by the plaintiff Alvaro Saldarriaga is dismissed, as he is not aggrieved by the portion of the order appealed from (see CPLR 5511); and it is further,

ORDERED that the order is reversed insofar as appealed from by the plaintiff Juan Saldarriaga, on the law, and that branch of the motion of the defendant Nicholas Viola which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Juan Saldarriaga against him is denied, and a subsequent order of the same court entered December 14, 2011, is vacated; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff Juan Saldarriaga, payable by the respondent.

The defendant Nicholas Viola failed to meet his prima facie burden of demonstrating that the plaintiff Juan Saldarriaga (hereinafter the injured 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, 350; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957). Viola's motion papers failed to adequately address the injured plaintiff's claim, clearly set forth in the bill of particulars, that he sustained a medically determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (cf. Tinsley v. Bah, 50 AD3d 1019, 1019–1020).

Since Viola failed to meet his 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 Stukas v. Streiter, 83 AD3d 18, 24).

Accordingly, the Supreme Court erred in granting that branch of Viola's motion which was for summary judgment dismissing the complaint insofar as asserted by the injured plaintiff against him. In light of our determination, a subsequent order of the same court entered December 14, 2011, which, inter alia, upon, in effect, granting reargument, adhered to the determination in the order entered May 26, 2011, granting that branch of Viola's motion, and, sua sponte, in effect, directed the dismissal of the complaint insofar as asserted against the defendant German Moreno, must be vacated.