Hernandez v. Gocool

In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Golia, J.), dated July 19, 1999, as granted the defendants’ motion for summary judgment dismissing the complaint on the ground that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated. The medical evidence submitted by the plaintiffs in opposition to the defendants’ motion for summary judgment was in proper form (see, Dair Bldg. Constr. Co. v Mayer, 31 AD2d 835). Moreover, the defendants did not make a showing of their initial entitlement to summary judgment. The defendants failed to make out a prima facie case that the plaintiffs did not sustain medically-determined injuries caused by the accident which prevented them, for a period of 90 out of the 180 days following the accident, from performing substantially all of the material acts which constituted their usual and customary daily activities (see, Polizzi v Won Jun Choi, 264 AD2d 830). Therefore, the Supreme Court erred in granting summary judgment to the defendants. In light of this determination, we have not reviewed the court’s subsequent order denying leave to renew (see, CPLR 5517 [b]). Bracken, J. P., Santucci, Altman and Florio, JJ., concur.