Opinion
2017–12600 Index No. 511954/15
07-24-2019
JUNG HAN, Respondent, v. DRAGONETTI LANDSCAPING, et al., Appellants.
Goldberg, Miller & Rubin, P.C., New York, N.Y. (Alexander W. Cogbill and Matthew D. Lavorie of counsel), for appellants. Andrew Park, P.C., New York, N.Y. (Steve J. Park of counsel), for respondent.
Goldberg, Miller & Rubin, P.C., New York, N.Y. (Alexander W. Cogbill and Matthew D. Lavorie of counsel), for appellants.
Andrew Park, P.C., New York, N.Y. (Steve J. Park of counsel), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle 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 subject accident. The Supreme Court denied the defendants' motion.
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 eliminate triable issues of fact as to whether the plaintiff sustained a serious injury under the 90/180–day category of Insurance Law § 5102(d) (see Burt v. MTA Bus Co., 172 A.D.3d 804, 98 N.Y.S.3d 441 [2d Dept. 2019] ). Since the defendants failed to meet their prima facie burden in this regard, it is unnecessary to determine whether the submissions 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, 969, 934 N.Y.S.2d 867 ).
Accordingly, we agree with the Supreme Court's determination denying the defendants' motion for summary judgment dismissing the complaint.
MASTRO, J.P., BALKIN, BARROS and CHRISTOPHER, JJ., concur.