Ammonds v. Rodriguez

In a negligence action to recover damages for personal injuries, etc., the defendant appeals from so much of an order of the Supreme Court, Kings County (Levine, J.), dated December 1, 1986, as denied his motion for summary judgment dismissing the action on the ground that the plaintiff failed to make out a prima facie case of serious injury. Ordered that the order is reversed, insofar as appealed from, on the law, without costs or disbursements, the defendant’s motion is granted, and the complaint is dismissed. It is incumbent upon the court to decide in the first instance whether a plaintiff has established a prima facie case of serious injury within the meaning of Insurance Law § 5102 (d) (see, Licari v Elliott, 57 NY2d 230, 237). The proof submitted by the plaintiff in connection with the defendant’s summary judgment motion failed to establish a prima facie case of serious injury. Therefore, the defendant is entitled to summary judgment (see, Lorenzo v Witt, 118 AD2d 628). Mangano, J. P., Brown, Rubin and Fiber, JJ., concur.