| Aslam v Hossain |
| 2011 NY Slip Op 03008 [83 AD3d 749] |
| April 12, 2011 |
| Appellate Division, Second Department |
| Mahmood Aslam, Respondent, v Tofazzal Hossain,Appellant. |
—[*1] Anna Feldman, P.C., Astoria, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Queens County (Sampson, J.), dated February 8, 2010, which denied hismotion for summary judgment dismissing the complaint on the ground that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The Supreme Court correctly determined that the defendant failed to meet his prima facieburden 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]). Thereports of the defendant's physicians submitted in support of the motion for summary judgmentfailed to address the plaintiff's claim, as set forth in his bill of particulars, that he sustained amedically determined injury or impairment of a nonpermanent nature which prevented him fromperforming substantially all of the material acts which constituted his usual and customaryactivities for not less than 90 of the 180 days immediately following the accident (see Reynolds v Wai Sang Leung, 78AD3d 919 [2010]; Udochi v H & SCar Rental Inc., 76 AD3d 1011 [2010]; Strilcic v Paroly, 75 AD3d 542 [2010]).
Since the defendant failed to establish his prima facie entitlement to judgment as a matter oflaw, it is unnecessary to determine whether the plaintiff's opposition papers were sufficient toraise a triable issue of fact (seeSainnoval v Sallick, 78 AD3d 922 [2010]; Mondert v Iglesia De Dios Pentecostal Cristo Viene, Inc., 69 AD3d590, 590 [2010]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Dillon, J.P.,Balkin, Chambers and Sgroi, JJ., concur.