Rizzo v. Torchiano

The defendant failed to make a prima facie showing that the plaintiff John M. Rizzo did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Staubitz v Yaser, 41 AD3d 698 [2007]; O’Neal v Bronopolsky, 41 AD3d 452 [2007]; Hughes v Cai, 31 AD3d 385 [2006]). Accordingly, the defendant’s motion for summary judgment dismissing the complaint was properly denied without the need to consider the sufficiency of the plaintiffs’ opposition papers. Fisher, J.E, Covello, Balkin and Belen, JJ., concur.