Valerio v. Terrific Yellow Taxi Corp.

• Decision Date: 26 April 2017
• Citation: 149 A.D.3d 1140,50 N.Y.S.3d 882 (Mem)
• Parties: Abel VALERIO, appellant, v. TERRIFIC YELLOW TAXI CORP., et al., respondents.
• Court: New York Supreme Court — Appellate Division

149 A.D.3d 1140

50 N.Y.S.3d 882 (Mem)

Abel VALERIO, appellant,

v.TERRIFIC YELLOW TAXI CORP., et al., respondents.

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

April 26, 2017.

Sacco & Fillas, LLP, Astoria, N.Y. (James P. Benintendi of counsel), for appellant.

Baker, McEvoy, Morrissey & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, N.Y., of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Velasquez, J.), dated May 27, 2016, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he 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 reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

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 papers submitted by the defendants failed to adequately address the plaintiff's claim, set forth in the bill of particulars, that he sustained a medically determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Che Hong Kim v. Kossoff, 90 A.D.3d 969, 934 N.Y.S.2d 867 ; Rouach v. Betts, 71 A.D.3d 977, 897 N.Y.S.2d 242 ; cf. Calucci v. Baker, 299 A.D.2d 897, 750 N.Y.S.2d 675 ).

Since the defendants failed to meet 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 (see Che Hong Kim v. Kossoff, 90 A.D.3d at 969, 934 N.Y.S.2d 867 ). Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.

RIVERA, J.P., BALKIN, BARROS and BRATHWAITE NELSON, JJ., concur.