Miller v. Afshin

In an action, inter alia, to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Jackson, J.), dated March 31, 2005, which denied their motion for summary judgment dismissing the first cause of action alleging serious injury 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 affirmed, with costs. Contrary to the defendants’ contention, the Supreme Court properly denied their motion for summary judgment dismissing the first cause of action alleging that the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident. The Supreme Court correctly determined that the defendants failed to establish their prima facie entitlement to judgment as a matter of law (see Manceri v Bowe, 19 AD3d 462 [2005]; Sayers v Hot, 23 AD3d 453 [2005]; Baudilio v Pam Car & Truck Rental, Inc., 23 AD3d 420 [2005]; Aronov v Leybovich, 3 AD3d 511 [2004]). Since the defendants failed to establish, prima facie, their entitlement to judgment as a matter of law, the sufficiency of the papers in opposition need not be considered (see Facci v Kaminsky, 18 AD3d 806 [2005]; Rich-Wing v Baboolal, 18 AD3d 726 [2005]; Lesane v Tejada, 15 AD3d 358 [2005]; Aronov v Leybovich, supra-, Coscia v 938 Trad [438] ing Corp., 283 AD2d 538 [2001]). Adams, J.P., Goldstein, Fisher and Lifson, JJ., concur.