| Brourman v Gorokhovsky |
| 2011 NY Slip Op 07792 [89 AD3d 660] |
| November 1, 2011 |
| Appellate Division, Second Department |
| Phyllis Brourman, Respondent, v Alex Gorokhovsky,Appellant. |
—[*1] Edelstein & Grossman, New York, N.Y. (Jonathan L. Edelstein of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Kramer, J.), dated December 20, 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 defendant failed to meet his prima facie burden of showing that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of thesubject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). The papers the defendant submitted failed toadequately address the plaintiff's claim, set forth in the bills of particulars, that the plaintiffsustained a medically determined injury or impairment of a nonpermanent nature whichprevented her from performing substantially all of the material acts which constituted her usualand customary daily activities for not less than 90 days during the 180 days immediatelyfollowing the subject accident (seeReynolds v Wai Sang Leung, 78 AD3d 919, 920 [2010]; cf. Tinsley v Bah, 50 AD3d 1019,1019-1020 [2008]).
Moreover, the defendant failed to adequately address the plaintiff's claim that, as a result ofthe subject accident, a bone in her left foot sustained a fracture (see Olic v Pappas, 47 AD3d 780[2008]).
In light of the defendant's failure to meet his prima facie burden, it is unnecessary to reviewthe sufficiency of the plaintiff's opposing papers (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]). Accordingly, the Supreme Court properly denied thedefendant's motion for summary judgment dismissing the complaint. Dillon, J.P., Dickerson,Leventhal, Austin and Miller, JJ., concur.