Opinion
2013-01-9
Vincenzo BOVE, respondent, v. Paul A. ZANELLI, appellant.
DeSena & Sweeney, LLP, Hauppauge, N.Y. (Shawn P. O'Shaughnessy of counsel), for appellant. Louis Grandelli, P.C., New York, N.Y. (Ari R. Lieberman of counsel), for respondent.
DeSena & Sweeney, LLP, Hauppauge, N.Y. (Shawn P. O'Shaughnessy of counsel), for appellant. Louis Grandelli, P.C., New York, N.Y. (Ari R. Lieberman of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Richmond County (Fusco, J.), dated March 9, 2012, which denied his 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 affirmed, with costs.
The defendant failed to meet his 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, 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 defendant's motion papers failed to adequately address the plaintiff's claim, clearly set forth in the bill of particulars, that he sustained a serious injury to his right wrist ( see Fudol v. Sullivan, 38 A.D.3d 593, 594, 831 N.Y.S.2d 504).
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 generally Stukas v. Streiter, 83 A.D.3d 18, 24, 918 N.Y.S.2d 176).
Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.