Haque v City of New York
2012 NY Slip Op 05498 [97 AD3d 636]
July 11, 2012
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, August 22, 2012


MD Zahural Haque, Appellant,
v
City of New York et al., Respondents.

[*1] Scott A. Wolinetz, New York, N.Y. (Ephrem Wertenteil of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and William K. Chang 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 (Kerrigan, J.), dated September 24, 2010, 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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendants failed to adequately address the plaintiff's claim that as a result of the subject accident, he sustained certain psychological injuries constituting a serious injury within the meaning of Insurance Law § 5102 (d) (see Krayn v Torella, 40 AD3d 588 [2007]; see generally Kranis v Biederbeck, 83 AD3d 903 [2011]; Krivit v Pitula, 79 AD3d 1432 [2010]; Chapman v Capoccia, 283 AD2d 798 [2001]).

Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff's opposition papers (see Krayn v Torella, 40 AD3d at 588). Skelos, J.P., Florio, Lott and Miller, JJ., concur.