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Nina Yunayeva, Respondent, v. Digiugno Steel, Inc., et al., Appellants

New York Supreme Court, Appellate Division2014-01-08
113 A.D.3d 607977 N.Y.S.2d 911

Authorities cited

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Opinion

majority opinion

The defendants failed to meet their prima facie burden of demonstrating 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, 350 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendants’ motion papers failed to adequately address the plaintiffs claim, clearly set forth in the bill of particulars, that the plaintiff sustained a serious injury to her right knee (see Staff v Yshua, 59 AD3d 614 [2009]). 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 generally Stukas v Streiter, 83 AD3d 18, 24 [2011]).

Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint. Mastro, J.P., Balkin, Sgroi and Hinds-Radix, JJ., concur.