Opinion
2019–12683 Index No. 620412/16
03-16-2022
Joseph TESTA, et al., respondents, v. Elaina M. LOREFICE, et al., appellants.
John J. Bello, Jr., Hauppauge, NY (John C. Meszaros of counsel), for appellants Elaina M. Lorefice and Erik A. Karlund. Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Joel A. Sweetbaum ], of counsel), for appellants Arben B. Cekovic and Nafije Cekovic. Salenger, Sack, Kimmel & Bavaro, LLP, Woodbury, NY (Beth S. Gereg and John Zervopoulos of counsel), for respondents.
John J. Bello, Jr., Hauppauge, NY (John C. Meszaros of counsel), for appellants Elaina M. Lorefice and Erik A. Karlund.
Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Joel A. Sweetbaum ], of counsel), for appellants Arben B. Cekovic and Nafije Cekovic.
Salenger, Sack, Kimmel & Bavaro, LLP, Woodbury, NY (Beth S. Gereg and John Zervopoulos of counsel), for respondents.
ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, WILLIAM G. FORD, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendants Elaina M. Lorefice and Erik A. Karlund appeal, and the defendants Arben B. Cekovic and Nafije Cekovic separately appeal, from an order of the Supreme Court, Suffolk County (William B. Rebolini, J.), dated October 10, 2019. The order, insofar as appealed from by the defendants Elaina M. Lorefice and Erik A. Karlund, denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. The order, insofar as appealed from by the defendants Arben B. Cekovic and Nafije Cekovic, denied their motion for the same relief as to them.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
The plaintiffs commenced this action, inter alia, to recover damages for personal injuries allegedly sustained by the plaintiff Joseph Testa (hereinafter the injured plaintiff) in a motor vehicle accident. The defendants Elaina M. Lorefice and Erik A. Karlund moved, and the defendants Arben B. Cekovic and Nafije Cekovic separately moved, for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the injured 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 dated October 10, 2019, the Supreme Court, among other things, denied the defendants' separate motions. The defendants appeal.
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., Inc., 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 defendants' submissions failed to eliminate triable issues of fact regarding the injured plaintiff's claim, set forth in the bill of particulars, that he 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 ).
Since the defendants failed to meet their prima facie burden, it is unnecessary to determine whether the submissions by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see Che Hong Kim v. Kossoff, 90 A.D.3d at 969, 934 N.Y.S.2d 867 ).
Accordingly, the Supreme Court properly denied the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.
IANNACCI, J.P., CHAMBERS, ROMAN and FORD, JJ., concur.