Drobecker v. Lawrence

—In an action to recover 649 damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), entered September 28, 2009, as granted the defendants’ cross motion for summary judgment dismissing the complaint on the ground that he 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, with costs, and the defendants’ cross 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]; Burrowes v New York City Tr. Auth., 71 AD3d 714 [2010]). Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiff in opposition to the defendants’ cross motion for summary judgment motion were sufficient to raise a triable issue of fact (see Karvay v Gueli, 77 AD3d 625 [2010]; Burrowes v New York City Tr. Auth., 71 AD3d at 714; Chiara v Dernago, 70 AD3d 746, 747 [2010]; Page v Belmonte, 45 AD3d 825, 826 [2007]). Rivera, J.P., Covello, Eng, Leventhal and Austin, JJ., concur.