| Felicciardi v Lankap Cab Corp. |
| 2014 NY Slip Op 07619 |
| Decided on November 12, 2014 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on November 12, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
JEFFREY A. COHEN
BETSY BARROS, JJ.
2014-04538
(Index No. 46064/10)
v
Lankap Cab Corp., et al., appellants, et al., defendant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Judy C. Selmeci of counsel), for appellants.
Roura & Melamed (Tantleff & Kreinces, LLP, Mineola, N.Y. [Matthew R. Kreinces], of counsel), for respondents.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendants Lankap Cab Corp. and Galib Islam Sarkar appeal from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated March 13, 2014, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff Maureen Felicciardi 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 appellants failed to meet their prima facie burden of showing that the plaintiff Maureen Felicciardi 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., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The papers submitted by the appellants failed to adequately address the plaintiffs' claim, set forth in the bill of particulars, that Maureen Felicciardi sustained a serious injury under the 90/180-day category of Insurance Law § 5102(d) (see Che Hong Kim v Kossoff, 90 AD3d 969).
Since the appellants did not sustain their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see Che Hong Kim v Kossoff, 90 AD3d at 969). Therefore, the Supreme Court properly denied the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.
MASTRO, J.P., CHAMBERS, COHEN and BARROS, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court