| Marquez v Brower |
| 2012 NY Slip Op 06925 [99 AD3d 869] |
| October 17, 2012 |
| Appellate Division, Second Department |
| Santos Marquez, Appellant, v Peter J. Brower et al.,Respondents, et al., Defendants. |
—[*1] Rivkin Radler LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, and Melissa M.Murphy of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), datedDecember 15, 2009, as granted that branch of the motion of the defendants Peter J. Brower, theTown of Hempstead, and the Town of Hempstead Sanitation Department which was forsummary judgment dismissing the complaint insofar as asserted against them on the ground thathe did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as aresult of the subject accident.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendants Peter J. Brower, the Town of Hempstead, and the Townof Hempstead Sanitation Department which was for summary judgment dismissing the complaintinsofar as asserted against them is denied.
The defendants Peter J. Brower, the Town of Hempstead, and the Town of HempsteadSanitation Department (hereinafter collectively the Town defendants) failed to 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]). Thepapers submitted by the Town defendants failed to adequately address the plaintiff's claim, setforth in the bill of particulars, that the plaintiff sustained a medically determined injury orimpairment of a nonpermanent nature which prevented him from performing substantially all ofthe material acts which constituted his usual and customary daily activities for not less than 90days during the 180 days immediately following the subject accident (see Mugno v Juran, 81 AD3d 908[2011]).
Since the Town defendants did not sustain their prima facie burden, it is unnecessary todetermine whether the papers submitted by the plaintiff in opposition were sufficient to raise atriable issue of fact (id. at 909).
Accordingly, the Supreme Court should have denied the Town defendants' motion [*2]for summary judgment dismissing the complaint insofar as assertedagainst them. Mastro, J.P., Florio, Leventhal, Belen and Cohen, JJ., concur.