Opinion
2019–02160 Index No. 609463/16
05-13-2020
Michael T. KNIGHT, Appellant, v. Renee Tessa JAMES, et al., Respondents.
Jaroslawicz & Jaros PLLC, New York, N.Y. (David Tolchin of counsel), for appellant. Charles F. Harms, Jr., Garden City, N.Y. (Andrew J. Frank of counsel), for respondents.
Jaroslawicz & Jaros PLLC, New York, N.Y. (David Tolchin of counsel), for appellant.
Charles F. Harms, Jr., Garden City, N.Y. (Andrew J. Frank of counsel), for respondents.
CHERYL E. CHAMBERS, J.P., JEFFREY A. COHEN, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated February 1, 2019. The order granted the defendants' 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, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident on May 25, 2016. 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 granted the defendants' motion, and the plaintiff appeals.
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 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 ). They failed to submit competent medical evidence establishing, prima facie, that the plaintiff did not sustain a fracture as a result of the accident (see Alexander v. Gordon, 95 A.D.3d 1245, 1246, 945 N.Y.S.2d 397 ; Kolios v. Znack, 237 A.D.2d 333, 655 N.Y.S.2d 443 ; cf. Kline v. Mitchell, 149 A.D.3d 924, 925, 52 N.Y.S.3d 450 ; Uribe v. Jimenez, 133 A.D.3d 844, 20 N.Y.S.3d 555 ). Since the defendants failed to meet their prima facie burden, it is unnecessary to determine whether the plaintiff's opposing papers 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 defendants' motion for summary judgment dismissing the complaint.
CHAMBERS, J.P., COHEN, BRATHWAITE NELSON and IANNACCI, JJ., concur.