

Waxman v Village of Lake Success (2014 NY Slip Op 07147)





Waxman v Village of Lake Success


2014 NY Slip Op 07147


Decided on October 22, 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 October 22, 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.


2013-10975
 (Index No. 10010/10)

[*1]Isa Waxman, et al., appellants, 
vVillage of Lake Success, et al., respondents.


Hach & Rose, LLP, New York, N.Y. (Robert F. Garnsey and Michael A. Rose of counsel), for appellants.
Morris, Duffy, Alonso & Faley, New York, N.Y. (Iryna S. Krauchanka and Andrea M. Alonso of counsel), for respondents Village of Lake Success and T.J. Fernandez.
Martyn, Toher, Martyn & Rossi, Mineola, N.Y. (Erica K. Fugelsang of counsel), for respondent John Haight.

DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Galasso, J.), entered August 30, 2013, which granted the motion of the defendants Village of Lake Success and T.J. Fernandez and the separate motion of the defendant John Haight for summary judgment dismissing the complaint insofar as asserted by the plaintiff Isa Waxman against each of them on the ground that the plaintiff Isa Waxman 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 one bill of costs to the plaintiffs payable by the defendants appearing separately and filing separate briefs, and the motion of the defendants Village of Lake Success and T.J. Fernandez and the separate motion of the defendant John Haight for summary judgment dismissing the complaint insofar as asserted by the plaintiff Isa Waxman against each of them are denied.
In support of their respective motions for summary judgment dismissing the complaint insofar as asserted by the plaintiff Isa Waxman against them, the defendants failed to meet their respective prima facie burdens of showing that the plaintiff Isa Waxman 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 defendants failed to adequately address Isa Waxman's claim, set forth in the bill of particulars, that he 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 defendants did not sustain their respective prima facie burdens, it is unnecessary to determine whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see id.). Therefore, the Supreme Court should have denied the motions.
MASTRO, J.P., CHAMBERS, COHEN and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court




