Opinion
2019–13603 Index No. 708754/17
10-28-2020
Bibi N. ALI, appellant, v. Desean O. WILLIAMS, respondent.
Brand Glick & Brand, P.C., Garden City, N.Y. (Peter M. Khrinenko of counsel), for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, NY, of counsel), for respondent.
Brand Glick & Brand, P.C., Garden City, N.Y. (Peter M. Khrinenko of counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, NY, of counsel), for respondent.
MARK C. DILLON, J.P., HECTOR D. LASALLE, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Salvatore J. Modica, J.), entered June 11, 2019. The order, insofar as appealed as from, granted 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 reversed insofar as appealed from, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained in a motor vehicle accident on October 22, 2016. 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 entered June 11, 2019, the Supreme Court, inter alia, granted the defendant's motion. The plaintiff 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., 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 defendant failed to eliminate triable issues of fact regarding 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 ; cf. Richards v. Tyson, 64 A.D.3d 760, 761, 883 N.Y.S.2d 575 ). The defendant's submissions also failed to eliminate triable issues of fact as to whether the plaintiff sustained a serious injury under the significant disfigurement category of Insurance Law § 5102(d) as a result of the accident (see Buchanan v. Keller, 169 A.D.3d 989, 991, 95 N.Y.S.3d 252 ; Straussberg v. Marghub, 108 A.D.3d 694, 695, 968 N.Y.S.2d 898 ; cf. Mnatcakanova v. Elliot, 174 A.D.3d 798, 799, 106 N.Y.S.3d 112 ).
Since the defendant failed to meet his 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 969, 934 N.Y.S.2d 867 ).
Accordingly, the Supreme Court should have 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 accident.
DILLON, J.P., LASALLE, BARROS and CHRISTOPHER, JJ., concur.