Opinion
04-12-2017
Dionisio GARCIA, appellant, v. COUNTY OF SUFFOLK, et al., respondents, et al., defendant.
Gruenberg Kelly Della, Ronkonkoma, NY (Zachary M. Beriloff of counsel), for appellant. Zaklukiewicz, Puzo & Morrissey LLP, Islip Terrace, NY (Stephen F. Zaklukiewicz and Maria Caraballo–Mitra of counsel), for respondents.
Gruenberg Kelly Della, Ronkonkoma, NY (Zachary M. Beriloff of counsel), for appellant.Zaklukiewicz, Puzo & Morrissey LLP, Islip Terrace, NY (Stephen F. Zaklukiewicz and Maria Caraballo–Mitra of counsel), for respondents.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated March 6, 2015, as granted that branch of the motion of the defendants County of Suffolk and Suffolk County Transit Bus which was for summary judgment dismissing the complaint insofar as asserted against them on the ground that he 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 that branch of the motion of the defendants County of Suffolk and Suffolk County Transit Bus which was for summary judgment dismissing the complaint insofar as asserted against them 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 is denied.
The defendants County of Suffolk and Suffolk County Transit Bus (hereinafter together the moving 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 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 photographs submitted by the moving defendants, depicting scars on the plaintiff's head and left shoulder, failed to establish, prima facie, that these scars did not constitute "significant disfigurement[s]" as defined by Insurance Law § 5102(d) (see Borquist v. Hyde Park Cent. Sch. Dist., 107 A.D.3d 926, 966 N.Y.S.2d 888 ; Langensiepen v. Kruml, 92 A.D.3d 1302, 1302–1303, 939 N.Y.S.2d 209 ; O'Brien v. Bainbridge, 89 A.D.3d 1511, 1513, 932 N.Y.S.2d 785 ; Tugman v. PJC Sanitation Serv., Inc., 23 A.D.3d 457, 805 N.Y.S.2d 607 ). Since the moving defendants did not sustain 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 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 969, 934 N.Y.S.2d 867 ).
Accordingly, the Supreme Court should have denied that branch of the moving defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them 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.