Itzkowitz v. Cancel

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (R. Goldberg, J.), dated May [713] 23, 2000, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain 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. On a motion for summary judgment dismissing the complaint on the ground that a plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), the court must determine whether the defendant submitted evidence sufficient to establish a prima facie showing of entitlement to judgment as a matter of law (see, Gaddy v Eyler, 79 NY2d 955; Flanagan v Hoeg, 212 AD2d 756). The defendant failed to establish, prima facie, that the injured plaintiff did not sustain a medically-determined injury or impairment which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for at least 90 of the 180 days immediately following the accident (see, Polizzi v Won Jun Choi, 264 AD2d 830). Therefore, the Supreme Court erred in granting the motion for summary judgment. O’Brien, J. P., Krausman, Goldstein and Crane, JJ., concur.