Villa v Armstrong

Villa v Armstrong 2014 NY Slip Op 04917 Decided on July 2, 2014 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 July 2, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
L. PRISCILLA HALL
PLUMMER E. LOTT
LEONARD B. AUSTIN
COLLEEN D. DUFFY, JJ.
2013-10517
(Index No. 1498/12)

[*1]Katherine Villa, etc., respondent,

v

Paula Armstrong, appellant.

Edward M. Eustace, White Plains, N.Y. (Heath A. Bender of counsel), for appellant.

Sobo & Sobo, LLP, Middletown, N.Y. (Brett Peter Linn of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Orange County (Slobod, J.), dated October 8, 2013, which denied her motion for summary judgment dismissing the complaint on the ground that the plaintiff's son 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 showing that the plaintiff's son 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 papers submitted by the defendant failed to adequately address the plaintiff's claim, set forth in the bill of particulars, that her son sustained a serious injury to his brain under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) (see generally Toure v Avis Rent A Car Sys., 98 NY2d at 350-351). Since the defendant did not sustain 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 (see Che Hong Kim v Kossoff, 90 AD3d 969).

Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff's son did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

MASTRO, J.P., HALL, LOTT, AUSTIN and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court