Opinion
04-19-2017
Esther AHARONOFF–ARAKANCHI, et al., respondents, v. Frank L. MASELLI, et al., appellants.
Richard M. Sands, Brooklyn, NY, for appellants. Oshman & Mirisola, LLP, New York, NY (David L. Kremen of counsel), for respondents.
Richard M. Sands, Brooklyn, NY, for appellants.Oshman & Mirisola, LLP, New York, NY (David L. Kremen of counsel), for respondents.
In an action, inter alia, 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, Nassau County (Feinman, J.), entered October 29, 2015, as denied that branch of their motion which was for summary judgment dismissing the complaint on the ground that the plaintiff Esther Aharonoff–Arakanchi 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 showing that the plaintiff Esther Aharonoff–Arakanchi (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, 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 injured 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 plaintiffs 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 at 969, 934 N.Y.S.2d 867 ).
Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was for summary judgment dismissing the complaint.
BALKIN, J.P., MILLER, DUFFY, LaSALLE and BRATHWAITE NELSON, JJ., concur.