Catana v. Hussain

• Decision Date: 03 November 2010
• Citation: 909 N.Y.S.2d 920,78 A.D.3d 639
• Parties: Silverio CATANA, respondent, v. Khalid HUSSAIN, et al., appellants.
• Court: New York Supreme Court — Appellate Division

909 N.Y.S.2d 920

78 A.D.3d 639

Silverio CATANA, respondent,

v.Khalid HUSSAIN, et al., appellants.

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

Nov. 3, 2010.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck, N.Y. [Elizabeth M. Hecht], of counsel), for appellants.

William Pager, Brooklyn, N.Y., for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Solomon, J.), dated May 6, 2010, 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.

Contrary to the defendants' assertions, they 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). In support of their motion, the defendants relied on, among other things, the affirmed medical report of Dr. Daniel Arick, an otolaryngologist. Dr. Arick conducted a hearing examination on April 23, 2009, and determined that the plaintiff was "essentially" deaf in his right ear. Dr. Arick opined that this condition was permanent. Dr. Arick did not opine as to the cause of this specific finding. Thus, the defendants' motion papers failed to demonstrate, prima facie, that the plaintiff's alleged hearing loss was not causally related to the subject accident ( see Lubrano v. Brown, 251 A.D.2d 383, 672 N.Y.S.2d 817).

Since the defendants did not sustain their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact ( seeCoscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).

FISHER, J.P., DILLON, BALKIN, CHAMBERS and SGROI, JJ., concur.