Sencion v. Lap , 983 N.Y.S.2d 880 ( 2014 )

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), entered May 29, 2012, which, in effect, granted those branches of the motion of the defendants Carol Yvonne Smith and Kim Smith, and the cross motion of the defendant Avi E Lap, which were for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiff 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 those branches of the motion and the cross motion which were for summary judgment dismissing the complaint insofar as asserted against the movants and cross movant are denied.

The defendants, who relied on the same evidence and arguments, failed to meet their respective prima facie burdens 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 papers submitted by the defendants failed to adequately address the plaintiffs claim, 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]).

Since the defendants did not sustain their respective prima facie burdens, it is unnecessary to determine whether the papers submitted by the plaintiff 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 those branches of the motion and cross motion which were for summary judgment dismissing the complaint insofar as asserted against each of the defendants. Balkin, J.E, Lott, Roman and Miller, JJ., concur.