Majority
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Kitzes, J.), entered March 18, 2009, which denied their 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).
Ordered that the order is affirmed, with costs.
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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 , 956-957 [1992]). The defendants did not address the plaintiffs claim, clearly set forth in his bill of particulars, that he sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the
Since the defendants did not sustain their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Takaroff v A.M. USA, Inc., 63 AD3d at 1144 ; Rah-man v Sarpaz, 62 AD3d at 980 ). Fisher, J.P., Florio, Angiolillo, Eng and Roman, JJ., concur.
Cases cited
- Toure v. Avis Rent A Car Systems, Inc. 98 NY2d 345 p. 654
- Negassi v. Royle 65 AD3d 1311 p. 655
- Rahman v. Sarpaz 62 AD3d 979 at 980 p. 655
- Smith v. Quicci 62 AD3d 858 at 859 p. 655
- Takaroff v. A.M. USA, Inc. 63 AD3d 1142 at 1143 p. 655
- Delayhaye v. Caledonia Limo & Car Service, Inc. 61 AD3d 814 at 815 p. 655
- Carr v. KMO Transportation, Inc. 58 AD3d 783 at 784-785 p. 655
- Jensen v. Nicmanda Trucking, Inc. 47 AD3d 769 at 770 p. 655