Addison v Joseph-Walters

Addison v Joseph-Walters 2012 NY Slip Op 07080 Decided on October 24, 2012 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 October 24, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
ANITA R. FLORIO
THOMAS A. DICKERSON
JOHN M. LEVENTHAL
PLUMMER E. LOTT, JJ.
2012-01359
(Index No. 8316/10)

[*1]Johnny Addison, respondent,

v

Eris Joseph-Walters, appellant.




Martin, Fallon & Mullé, Huntington, N.Y. (Richard C. Mullé of
counsel), for appellant.
Myers, Singer & Galiardo, LLP, New York, N.Y. (Christopher
D. Galiardo of counsel), for
respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated October 27, 2011, which denied her 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) as a result of the subject accident.

ORDERED that the order is affirmed, with costs.

The defendant failed to meet her prima facie burden of demonstrating 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, 350; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendant's motion papers failed to adequately address the plaintiff's claim, clearly set forth in the 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 material acts which constituted his ususal and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (cf. Tinsley v Bah, 50 AD3d 1019, 1019-1020).

Since the defendant failed to meet her 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 (id. at 1020).

Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.
RIVERA, J.P., FLORIO, DICKERSON, LEVENTHAL and LOTT, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court