Zheng Gup Dong v Tobar, 2016 NY Slip Op 03733 [139 AD3d 847]

May 11, 2016

Appellate Division, Second Department

[*1]

Zheng Gup Dong, Appellant,

v

Hernan P. Tobar et al., Respondents.

Ross Legan Rosenberg Zelen & Flaks, LLP, New York, NY (Clifford F. Zelen of counsel), for appellant.

Gerber & Gerber, PLLP, Brooklyn, NY (Thomas Torto and Jason Levine of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated March 16, 2015, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that he 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 reversed, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is denied.

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 NY2d 345 [2002]; Gaddy v Eyler , 79 NY2d 955, 955-956 [1992]). The papers submitted by the defendants failed to adequately address the plaintiff’s claim, set forth in his bill of particulars, that he sustained a serious injury under the 90/180-day category of Insurance Law § 5102 (d) ( see Che Hong Kim v Kossoff , 90 AD3d 969 [2011]; Rouach v Betts , 71 AD3d 977 [2010]).

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 Che Hong Kim v Kossoff , 90 AD3d at 969). Accordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint. Mastro, J.P., Chambers, Roman and Maltese, JJ., concur..