| Che Hong Kim v Kossoff |
| 2011 NY Slip Op 09578 [90 AD3d 969] |
| December 27, 2011 |
| Appellate Division, Second Department |
| Che Hong Kim, Respondent, v Barbara K. Kossoff,Defendant, and Mary Cestaro et al., Appellants. |
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Kelner & Kelner, New York, N.Y. (Joshua D. Kelner of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants Mary Cestaro and OnSite Construction, Inc., appeal, as limited by their brief, from so much of an order of the SupremeCourt, Queens County (Strauss, J.), dated April 27, 2011, as denied their cross motion forsummary judgment dismissing the complaint insofar as asserted against them on the ground thatthe plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Ordered that the order is affirmed insofar as appealed from, with costs.
The appellants failed to meet their 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 appellants' motion papers failed to adequatelyaddress the plaintiff's claim, clearly set forth in the bills 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 customary dailyactivities for not less than 90 days during the 180 days immediately following the subjectaccident (see Reynolds v Wai SangLeung, 78 AD3d 919, 920 [2010]; cf. Tinsley v Bah, 50 AD3d 1019, 1019-1020 [2008]).
Since the appellants failed to meet their prima facie burden, it is unnecessary to determinewhether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issueof fact (see Reynolds v Wai Sang Leung, 78 AD3d at 920). Skelos, J.P., Angiolillo,Belen, Lott and Roman, JJ., concur.