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Dozier v. Lee

Supreme Court of New York, Second Department

October 2, 2013

Leon Dozier, respondent,
v.
Anna Lee, et al., appellants. Index No. 22137/10

Saretsky Katz Dranoff & Glass, LLP, New York, N.Y. (Gary J. Levy and Howard J. Newman of counsel), for appellants.

Bragoli & Associates, P.C., Melville, N.Y. (Gina M. Simonelli, Joseph P. Militello, and Susan R. Nudelman of counsel), for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Winslow, J.), entered November 30, 2012, which denied their 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).

ORDERED that the order is affirmed, with costs.

The defendants failed to meet their 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 N.Y.2d 345, 350; Gaddy v Eyler, 79 N.Y.2d 955, 956-957). The defendants' 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 usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Karpinos v Cora, 89 A.D.3d 994, 995). Since the defendants failed to meet their 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 generally Stukas v Streiter, 83 A.D.3d 18, 24). Accordingly, the Supreme Court properly denied the defendants' 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).

DILLON, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.


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