Dymersky v Potash, 2016 NY Slip Op 03136 [138 AD3d 1059]

April 27, 2016

Appellate Division, Second Department

[*1]

Semoyn Dymersky, Appellant,

v

Jacob C. Potash et al., Respondents.

Daniel E. Rausher, Brooklyn, NY, for appellant.

Tobias & Kuhn, New York, NY (Diane L. DeVita of counsel), for respondents.

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated January 8, 2014, which granted 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) 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 deposition testimony and the 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). Therefore, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint. Chambers, J.P., Cohen, Duffy and Connolly, JJ., concur..