Tanious v Sawyers

Tanious v Sawyers 2013 NY Slip Op 01397 Decided on March 6, 2013 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 6, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
THOMAS A. DICKERSON
JOHN M. LEVENTHAL
PLUMMER E. LOTT, JJ.
2012-07983
(Index No. 14083/10)

[*1]Adel B. Tanious, et al., respondents,

v

Eduardo Sawyers, et al., appellants. Gallo, Vitucci & Klar, New York, N.Y. (Yolanda L. Ayala of counsel), for appellants. Levine & Gilbert, New York, N.Y. (Harvey A. Levine of counsel), for respondents.




DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Ruchelsman, J.), dated November 1, 2011, as denied their motion for summary judgment dismissing the complaint insofar as it sought to recover damages based on personal injuries allegedly sustained by the plaintiff Lorrinda A. Tanious on the ground that she 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 insofar as appealed from, with costs.

The defendants failed to meet their prima facie burden of demonstrating that the plaintiff Lorrinda A. Tanious 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 defendants' motion papers failed to adequately address the plaintiffs' claim, clearly set forth in the bill of particulars, that Lorrinda A. Tanious sustained a serious injury to the lumbar region of her spine as a result of the subject accident (see Fudol v Sullivan, 38 AD3d 593, 594).

Since the defendants failed to meet their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see generally Winegrad v New York Unv. Med. Ctr., 64 NY2d 851, 853). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment.
RIVERA, J.P., DICKERSON, LEVENTHAL and LOTT, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court