Breedy v. Jenkins

• Decision Date: 02 February 2010
• Parties: Nikki Sandra BREEDY, respondent, v. George J. JENKINS, et al., appellants.
• Court: New York Supreme Court — Appellate Division

897 N.Y.S.2d 111

70 A.D.3d 618

Nikki Sandra BREEDY, respondent,

v.George J. JENKINS, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 2, 2010.

Cohen, Kuhn & Associates (John T. Ryan, Riverhead, N.Y. [Robert F. Horvat], of counsel), for appellants.

Alexander Bespechny, Brooklyn, N.Y. (Louis A. Badolato of counsel), for respondent.

STEVEN W. FISHER, J.P., FRED T. SANTUCCI, DANIEL D. ANGIOLILLO, L. PRISCILLA HALL, and PLUMMER E. LOTT, JJ.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Schmidt, J.), entered February 2, 2009, which denied their motion 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).

ORDERED that the order is affirmed, with costs.

The defendants failed to meet their 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 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The defendants' motion papers failed to adequately address the plaintiff's claim, clearly set forth in her bill of particulars, that she sustained a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident ( see Smith v. Quicci, 62 A.D.3d 858, 880 N.Y.S.2d 652; Alexandre v. Dweck, 44 A.D.3d 597, 848 N.Y.S.2d 181; Sayers v. Hot, 23 A.D.3d 453, 454, 805 N.Y.S.2d 571).

Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted bythe plaintiff in opposition to the defendants' motion were sufficient to raise a triable issue of fact ( see Smith v. Quicci, 62 A.D.3d at 859, 880 N.Y.S.2d 652; Alexandre v. Dweck, 44 A.D.3d 597, 848 N.Y.S.2d 181; Sayers v. Hot, 23 A.D.3d 453, 805 N.Y.S.2d 571; Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).