Corbett v Yobris Enters.

Corbett v Yobris Enters. 2009 NY Slip Op 08777 [67 AD3d 955] November 24, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

Don Corbett, Respondent,
v
Yobris Enterprises et al., Appellants, et al., Defendant.

—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel), for appellants.

Stuart Perry, P.C., Roslyn Heights, N.Y., for respondent.

In an action, inter alia, to recover damages for personal injuries, the defendants Yobris Enterprises and Rafael Santos appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated March 25, 2009, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them 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 Yobris Enterprises and Rafael Santos failed to make a prima facie showing that the plaintiff did not sustain a medically-determined injury of a nonpermanent nature which prevented her from performing her usual and customary daily activities for 90 of the first 180 days following the subject accident (see Insurance Law § 5102 [d]; Alvarez v Dematas, 65 AD3d 598 [2009]). Accordingly, we need not consider the sufficiency of the papers submitted by the plaintiff in opposition to the motion (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Skelos, J.P., Florio, Balkin, Belen and Austin, JJ., concur.