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Stead v. Serrano

156 A.D.3d 836 Court N.Y. App. Div. Decision date 2017-12-20 English

Judges Dillon, J.P., Sgroi, Hinds-Radix and Iannacci, JJ., concur.

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p. 836
Margaret Stead et al., Appellants, v Luis A. Serrano et al., Respondents.
[67 NYS3d 244]

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Santorelli, J.), dated September 8, 2015, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff Margaret Stead 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.

p. 837
The defendants failed to meet their prima facie burden of showing that the plaintiff Margaret Stead (hereinafter the injured 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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 , 956-957 [1992]). The papers submitted by the defendants failed to adequately address the injured plaintiff’s claims, set forth in the bill of particulars, that she 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]; Staff v Yshua, 59 AD3d 614 [2009]). Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the plaintiffs’ opposition papers 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 defendants’ motion for summary judgment dismissing the complaint 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.

Dillon, J.P., Sgroi, Hinds-Radix and Iannacci, JJ., concur.

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