| Burris v Samuel |
| 2015 NY Slip Op 00325 |
| Decided on January 14, 2015 |
| 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 January 14, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
L. PRISCILLA HALL
LEONARD B. AUSTIN
ROBERT J. MILLER
JOSEPH J. MALTESE, JJ.
2014-00396
(Index No. 27000/09)
v
Alvin P. Samuel, defendant third-party plaintiff-respondent; Christine Key, et al., third-party defendants-respondents.
Eric H. Green, New York, N.Y. (Marc Gertler and Hiram Anthony Raldiris of counsel), for appellant.
James G. Bilello (Russo, Apoznanski & Tambasco, Melville, N.Y. [Susan J. Mitola], of counsel), for defendant third-party plaintiff-respondent.
Adams, Hanson, Rego, Kaplan & Fishbein, Lake Success, N.Y. (Justin M. Delaire of counsel), for third-party defendants-respondents.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Velasquez, J.), dated October 1, 2013, which granted the motion of the defendant third-party plaintiff for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, and the separate motion of the third-party defendants for summary judgment dismissing the third-party complaint on the same ground.
ORDERED that the appeal from so much of the order as granted the third-party defendants' motion for summary judgment dismissing the third-party complaint is dismissed, as the plaintiff is not aggrieved by that portion of the order (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144); and it is further,
ORDERED that the order is reversed insofar as reviewed, on the law, and the motion of the defendant third-party plaintiff for summary judgment dismissing the complaint is denied; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff payable by the defendant third-party plaintiff.
The defendant third-party plaintiff, Alvin P. Samuel, failed to meet his prima facie burden of showing that the plaintiff 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 in support of the motion failed to adequately address the plaintiff's claim, set forth in the bill of particulars, that she sustained a serious [*2]injury under the 90/180-day category of Insurance Law § 5102(d) (see Che Hong Kim v Kossoff, 90 AD3d 969).
Since Samuel did not sustain his prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition to the motion were sufficient to raise a triable issue of fact (see id.). Accordingly, the Supreme Court should have denied Samuel's motion for summary judgment dismissing the complaint.
RIVERA, J.P., HALL, AUSTIN, MILLER and MALTESE, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court