SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT
November 24, 2009
DON CORBETT, RESPONDENT,
YOBRIS ENTERPRISES, ET AL., APPELLANTS, ET AL., DEFENDANT.
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).
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.
PETER B. SKELOS, J.P., ANITA R. FLORIO, RUTH C. BALKIN, ARIEL E. BELEN LEONARD B. AUSTIN, JJ.
(Index No. 23522/05)
DECISION & ORDER
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). 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).
SKELOS, J.P., FLORIO, BALKIN, BELEN and AUSTIN, JJ., concur.
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