Feaster v Cablevision Sys.

Feaster v Cablevision Sys. 2016 NY Slip Op 02318 Decided on March 30, 2016 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 30, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
L. PRISCILLA HALL
ROBERT J. MILLER
HECTOR D. LASALLE, JJ.
2015-03019
(Index No. 25257/10)

[*1]Denise F. Feaster, respondent,

v

Cablevision Systems, appellant, et al., defendant.

Nicholas Goodman & Associates, PLLC, New York, NY (Carter A. Reich, H. Nicholas Goodman, and Brent M. Reitter of counsel), for appellant.

Subin & Associates, LLP, New York, NY (Robert J. Eisen and Brian Isaac of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Cablevision Systems appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated November 10, 2014, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it 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 affirmed, with costs.

The Supreme Court properly denied the motion of the defendant Cablevision Systems (hereinafter the defendant) for summary judgment dismissing the complaint insofar as asserted against it 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. The defendant failed to make a prima facie 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; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendant's motion papers failed to adequately address the plaintiff's allegation that she sustained a medically determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Che Hong Kim v Kossoff, 90 AD3d 969; Rouach v Betts, 71 AD3d 977).

In light of the defendant's failure to meet its 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 Che Hong Kim v Kossoff, 90 AD3d at 969). Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.

MASTRO, J.P., HALL, MILLER and LASALLE, JJ., concur.

ENTER: Aprilanne Agostino Clerk of the Court