BARDALES v. MONELL (2018)

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Joseph Farneti, J.), dated October 3, 2016.  The order granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

This action arises from a motor vehicle accident that occurred on June 12, 2013, near or at the intersection of Sweet Hollow Road and Old Country Road in Huntington.  The plaintiff commenced this action to recover damages, inter alia, for personal injuries she allegedly sustained in the accident.  The defendants 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 accident.  The Supreme Court granted the defendants' motion.  The plaintiff appeals.

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 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 papers submitted by the defendants failed to adequately address the plaintiff's claim, set forth in the bill of particulars, that she sustained a serious injury under the 90/180–day category of Insurance Law § 5102(d) (see Che Hong Kim v. Kossoff, 90 A.D.3d 969, 934 N.Y.S.2d 867; Rouach v. Betts, 71 A.D.3d 977, 897 N.Y.S.2d 242).  Since the defendants failed to meet their 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 Che Hong Kim v. Kossoff, 90 A.D.3d at 969, 934 N.Y.S.2d 867).

Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.

SCHEINKMAN, P.J., COHEN, DUFFY and CONNOLLY, JJ., concur.