Burrowes v. New York City Transit Authority

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Miller, J.), dated January 27, 2009, as granted the defendants’ motion for summary judgment dismissing the complaint on ground that the 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, and the defendants’ motion for summary judgment dismissing the complaint is denied. The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whéther the papers submitted by the plaintiff in opposition to the defendants’ motion for summary judgment were sufficient to raise a triable issue of fact (see Page v Belmonte, 45 AD3d 825, 826 [2007]; Coscia v 938 715 Trading Corp., 283 AD2d 538 [2001]). Fisher, J.P., Santucci, Angiolillo, Hall and Lott, JJ., concur.