Ribaudo v. Amir

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated November 8, 2004, which granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is reversed insofar as appealed from, on the law and the facts, with costs, the branch of the motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) is denied, the complaint is reinstated, and the matter is remitted to the Supreme Court, Kings County, for a determination of the remaining branch of the defendants’ motion. The defendants failed to meet their burden of establishing their prima facie entitlement to summary judgment on the issue of serious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 545 345, 351 [2002]; Farozes v Kamran, 22 AD3d 458 [2005]; Apuzzo v Ferguson, 20 AD3d 647 [2005]). We need not, therefore, reach the sufficiency of the plaintiffs papers submitted in opposition to that branch of the motion (see Facci v Kaminsky, 18 AD3d 806, 807 [2005]; Rich-Wing v Baboolal, 18 AD3d 726 [2005]). Miller, J.P., Ritter, Luciano, Spolzino and Dillon, JJ., concur.