Creech v. Santiago , 738 N.Y.S.2d 588 ( 2002 )

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Nassau County (DeMaro, J.), dated February 5, 2001, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d), and denied their cross motions as academic.

Ordered that the order is reversed, on the law, with costs, the motion is denied, the complaint is reinstated, and the matter is remitted to the Supreme Court, Nassau County, to determine the plaintiffs’ cross motions on the merits.

The defendants’ motion papers failed to make out a prima facie case that neither of the plaintiffs sustained a medically-determined injury or impairment of a nonpermanent nature which prevented them from performing substantially all of the material acts which constituted their usual and customary daily activities for a period of not less than 90 days during the 180-day period immediately following the accident (see, Insurance Law § 5102 [d]; Polizzi v Won Jun Choi, 264 AD2d 830). Prudenti, P.J., Florio, S. Miller, Friedmann and Adams, JJ., concur.