| Roman-Cabrera v THJ Transp. Corp. |
| 2013 NY Slip Op 03980 [107 AD3d 682] |
| June 5, 2013 |
| Appellate Division, Second Department |
| Mercedes Roman-Cabrera, Respondent, v THJTransportation Corp. et al., Appellants. |
—[*1]
Charles J. Fine, New York, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Kings County (F. Rivera, J.), dated July 20, 2012, whichdenied their motion for summary judgment dismissing the complaint on the ground thatthe plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102 (d) as a result of the subject accident.
Ordered that the order is affirmed, with costs.
The defendants failed to meet their prima facie burden of showing that the plaintiffdid not sustain a serious injury within the meaning of Insurance Law § 5102 (d) asa result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345[2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The papers submitted bythe defendants failed to adequately address the plaintiff's claim, set forth in the bill ofparticulars, that the plaintiff sustained a medically determined injury or impairment of anonpermanent nature which prevented her from performing substantially all of thematerial acts which constituted her usual and customary daily activities for not less than90 days during the 180 days immediately following the subject accident (see Cruz v Advanced ConcreteLeasing Corp., 101 AD3d 666, 667 [2012]; Marquez v Brower, 99 AD3d 869 [2012]).
Since the defendants did not sustain their prima facie burden, it is unnecessary todetermine whether the papers submitted by the plaintiff in opposition were sufficient toraise a triable issue of fact (see generally Winegrad v New York Univ. Med. Ctr.,64 NY2d 851, 853 [1985]).
Accordingly, the Supreme Court properly denied the defendants' motion for summaryjudgment dismissing the complaint. Rivera, J.P., Dickerson, Leventhal and Lott, JJ.,concur.