| Kouyate v Chowdhury |
| 2010 NY Slip Op 06362 [76 AD3d 547] |
| August 10, 2010 |
| Appellate Division, Second Department |
| Mamadou Kouyate, Appellant, v Saifu Chowdhury et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Nelson, J.), entered November 6, 2009, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that he didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) is denied.
On August 16, 2007, while traveling northbound on Third Avenue in the vicinity of East45th Street in Manhattan, the plaintiff, who was driving a taxicab owned by a nonparty entity,collided with a taxicab driven by the defendant Saifu Chowdhury and owned by the defendantMaheer Taxi, Inc. (hereinafter Maheer). As a result of this accident, the plaintiff allegedlysustained injuries to his right knee, shoulders, neck, and back. The plaintiff underwent surgeryon his right knee in May 2008.
The plaintiff commenced this action against Chowdhury and Maheer. The defendants movedfor summary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d). The Supreme Courtgranted the motion, and the plaintiff appeals.
Contrary to the determination of the Supreme Court, the defendants did not meet their primafacie burden of showing that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent ACar Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; Daly-Caffrey v Licausi, 70 AD3d884, 885 [2010]; McMillian vNaparano, 61 AD3d 943 [2009]; see also Burrowes v New York City Tr. Auth., 71 AD3d 714[2010]).
In light of the defendants' failure to meet their prima facie burden, we need not [*2]address the sufficiency of the plaintiff's papers submitted inopposition to the defendants' motion (see Perez v Johnson, 72 AD3d 777 [2010]; Safer v Silbersweig, 70 AD3d 921[2010]). Skelos, J.P., Miller, Eng, Hall and Austin, JJ., concur.