| Cohn v Khan |
| 2011 NY Slip Op 08720 [89 AD3d 1052] |
| November 29, 2011 |
| Appellate Division, Second Department |
| Allison Cohn, Respondent, v Rahim Khan et al.,Appellants. |
—[*1] Roth & Roth, LLP, New York, N.Y. (David A. Roth and Audra R. Roth of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order of theSupreme Court, Kings County (Schmidt, J.), entered July 29, 2010, which denied their motion forsummary judgment dismissing the complaint on the ground that the plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d) and granted that branch of the plaintiff'scross motion which was for summary judgment on the issue of liability.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the plaintiff's cross motion which was for summary judgment on the issue of liability andsubstituting therefor a provision denying that branch of the cross motion; as so modified, the order isaffirmed, without costs or disbursements.
The plaintiff commenced this action to recover damages for personal injuries allegedly sustainedwhen she was struck by a taxicab while she was walking on Avenue A in Manhattan. At the time of theaccident, the taxicab allegedly was owned by the defendant Nancy Transit, Inc., and operated by thedefendant Rahim Khan. The defendants moved for summary judgment dismissing the complaint on theground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102 (d). The plaintiff cross-moved, among other things, for summary judgment on the issue of liability.The Supreme Court denied the defendants' motion and granted that branch of the plaintiff's crossmotion which was for summary judgment on the issue of liability. We modify.
The defendants' motion papers failed to adequately address the plaintiff's claim, clearly set forth inher bill of particulars, that she sustained a medically-determined injury or impairment of a nonpermanentnature which prevented her from performing substantially all of the material acts which constituted herusual and customary daily activities for not less than 90 days during the 180 days immediately followingthe subject accident (see Reynolds v WaiSang Leung, 78 AD3d 919 [2010]; Udochi v H & S Car Rental Inc., 76 AD3d 1011 [2010]; Strilcic v Paroly, 75 AD3d 542 [2010];Bright v Moussa, 72 AD3d 859[2010]; Encarnacion v Smith, 70 AD3d628 [2010]; Negassi v Royle, 65AD3d 1311 [2009]; Alvarez vDematas, 65 AD3d 598 [2009]; Smith v Quicci, 62 AD3d 858 [2009]; Alexandre v Dweck, 44 AD3d 597[2007]; Sayers v Hot, 23 AD3d453 [2005]). Accordingly, the Supreme Court properly denied the defendants' motion becausethey failed to meet their prima facie burden of showing that the plaintiff [*2]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., 98NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Since the defendantsfailed to meet their prima facie burden, it is unnecessary to determine whether the papers submitted bythe plaintiff in opposition to the defendants' motion were sufficient to raise a triable issue of fact (seeBright v Moussa, 72 AD3d at 859; Menezes v Khan, 67 AD3d 654, 654 [2009]; Alvarez vDematas, 65 AD3d at 600; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]).
However, the Supreme Court erred in granting that branch of the plaintiff's cross motion which wasfor summary judgment on the issue of liability. In support of her cross motion, the plaintiff submittedevidence which indicated that she left the sidewalk and was struck by the taxicab while she was walkingalong the edge of the roadway with her back to oncoming traffic (cf. Vehicle and Traffic Law§ 1156 [a]). Since the plaintiff's submissions failed to establish, prima facie, that she was freefrom comparative negligence or that the defendant driver's allegedly negligent conduct was the soleproximate cause of the accident, the Supreme Court should have denied that branch of the plaintiff'scross motion which was for summary judgment on the issue of liability (see Mackenzie v City of New York, 81AD3d 699, 700 [2011]; Singh v DooJae Lee, 76 AD3d 555 [2010];Roman v A1 Limousine, Inc., 76 AD3d 552 [2010]; Yuen Lum v Wallace, 70 AD3d 1013 [2010]; see also Thoma vRonai, 82 NY2d 736 [1993]). Mastro, J.P., Dillon, Sgroi and Miller, JJ., concur.