Clarke v. Doe

212 A.D.3d 709

179 N.Y.S.3d 912 (Mem)

Jasmin CLARKE, appellant,

v.Joy DOE, defendant,Metropolitan Transportation Authority, et al., respondents.

2019–14387

Index No. 708544/16

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

Argued—November 18, 2022

January 18, 2023

Dell & Dean, PLLC (Joseph G. Dell and Mischel & Horn, P.C., New York, NY [Scott T. Horn, Lauren E. Bryant, and Nicholas Bruno ], of counsel), for appellant.

Zaklukiewicz, Puzo & Morrissey LLP, Islip Terrace, NY (Maria Caraballo–Mitra of counsel), for respondents.

VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Joseph J. Risi, J.), entered December 31, 2019. The order granted the motion of the defendants Metropolitan Transit Authority, MTA Bus Company, and New York City Transit Authority for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff 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 motion of the defendants Metropolitan Transit Authority, MTA Bus Company, and New York City Transit Authority for summary judgment dismissing the complaint insofar as asserted against them is denied.

The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained in a motor vehicle accident that occurred on September 14, 2015, against, among others, the defendants Metropolitan Transit Authority, MTA Bus Company, and New York City Transit Authority (hereinafter collectively the defendants). The defendants moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. In an order entered December 31, 2019, the Supreme Court granted the motion. The plaintiff appeals.

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 accident (see Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Vaccaro v. Francolopez, 205 A.D.3d 760, 762, 165 N.Y.S.3d 727 ). The evidence submitted by the defendants failed to eliminate triable issues of fact regarding the plaintiff's claim, set forth in her bill of particulars, that she sustained a serious injury under the 90/180–day category of Insurance Law § 5102(d) (see Castro–Villatoro v. Batista, 206 A.D.3d 877, 877, 168 N.Y.S.3d 694 ; Che Hong Kim v. Kossoff, 90 A.D.3d 969, 934...