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Iacobino v. Coyle

155 A.D.3d 944 Court N.Y. App. Div. Decision date 2017-11-22 English

Judges Eng, P.J., Rivera, Roman and Connolly, JJ., concur.

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p. 944
Monica Iacobino et al., Appellants, v Mary E. Coyle, Respondent.
[63 NYS3d 895]

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Walker, J.), dated December 21, 2015, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the plaintiffs 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 defendant’s motion for summary judgment dismissing the complaint is denied.

The defendant failed to meet her prima facie burden of showing that the plaintiffs did not sustain a serious injury within

p. 945
the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 , 956-957 [1992]). The papers submitted by the defendant failed to adequately address the plaintiffs’ claims, set forth in the bill of particulars, that they each sustained a serious injury under the 90/180-day category of Insurance Law § 5102 (d) (see Che Hong Kim v Kossoff, 90 AD3d 969 [2011]; Rouach v Betts, 71 AD3d 977 [2010]). Since the defendant failed to meet her prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see Che Hong Kim v Kossoff, 90 AD3d at 969 ).

Accordingly, the Supreme Court should have denied the defendant’s motion for summary judgment dismissing the complaint.

Eng, P.J., Rivera, Roman and Connolly, JJ., concur.

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