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Foster v. Franco

Supreme Court of New York, Second Department

October 2, 2013

Terence Foster, respondent,
v.
Anthony P. Franco, et al., appellants. Index No. 22442/10

Richard T. Lau, Jericho, N.Y. (Kathleen E. Fioretti of counsel), for appellants.

Patrick Michael Megaro, Uniondale, N.Y., for respondent.

DANIEL D. ANGIOLILLO, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, JEFFREY A. COHEN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Iannacci, J.), entered February 5, 2013, 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) as a result of the subject accident.

ORDERED that the order is affirmed, with costs.

The defendants failed to meet their prima facie burden of showing 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; 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 serious injuries to his head and brain as a result of the accident (cf. Jilani v Palmer, 83 A.D.3d 786, 787; Staff v Yshua, 59 A.D.3d 614). In light of the defendants' failure to meet their prima facie burden, it is unnecessary to consider the sufficiency of the plaintiff's opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

Therefore, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.

ANGIOLILLO, J.P., HALL, ROMAN and COHEN, JJ., concur.


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