BIANCOSPINO v. GONZALEZ (2013)

In an action to recover damages for personal injuries, the defendant Ana R. Gonzalez appeals from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated April 27, 2012, which denied her motion for summary judgment dismissing the complaint insofar as asserted against her 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, with costs.

The defendant Ana R. Gonzalez failed to meet her prima facie burden of demonstrating 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, 350; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957). Gonzalez's motion papers failed to adequately address the plaintiff's claim, clearly set forth in the bill of particulars, that she sustained a serious injury to her left elbow (see Fudol v. Sullivan, 38 AD3d 593, 594).

Since Gonzalez failed to meet her prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see generally Stukas v. Streiter, 83 AD3d 18, 24). Accordingly, the Supreme Court properly denied Gonzalez's motion for summary judgment.