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Christie v. Harrison

Supreme Court of New York, Second Department

January 8, 2014

Lenore Christie, respondent,
v.
Diane B. Harrison, appellant. Index No. 14416/11

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

Celino & Barnes, P.C., Garden City, N.Y. (Gregory V. Pajak of counsel), for respondent.

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, JEFFREY A. COHEN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Bruno, J.), entered July 16, 2013, which denied her 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 defendant failed to meet her 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 papers submitted by the defendant failed to adequately address the plaintiff's claim, set forth in the bill of particulars, that she sustained a serious injury under the 90/180-day category of Insurance Law § 5102(d) (see DeVille v Barry, 41 A.D.3d 763, 763-764).

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 Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). Accordingly, the Supreme Court properly denied defendant's motion for summary judgment.

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


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