Brown v. Visan Fuel Oil Co. — 114 A.D.2d 396

Majority

p. 396

Althea Brown, an Infant, by Her Father and Natural Guardian, Alphonso Brown, et al., Respondents, v Visan Fuel Oil Company et al., Appellants.

—In a negligence action to recover damages for personal injuries, etc., defendants appeal from an order of the Supreme Court, Kings County (Scholnick, J.), dated December 19, 1984, which denied their motion for summary judgment dismissing the complaint for failure to meet the threshold requirement of establishing "[sjerious injury” as defined in Insurance Law § 5102 (d).

Order affirmed, with costs.

"Summary judgment is an appropriate vehicle for determining whether a plaintiff can establish, prima facie, a serious injury” within the meaning of Insurance Law § 5102 (d) (formerly Insurance Law § 671 [4]) (Zoldas v Louise Cab Corp., 108 AD2d 378 , 381). Nevertheless, a defendant movant has the burden of showing "entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Center, 64 NY2d 851 , 853; see, Friends of Animals v

p. 397

Associated Fur Mfrs., 46 NY2d 1065 , 1067). In the instant case, the defendants have failed to meet their burden. Accordingly, the denial of their motion for summary judgment was proper.

Under these circumstances, we need not reach the issue of the sufficiency of the plaintiffs’ opposing papers (see, Winegrad v New York Univ. Med. Center, supra). Brown, J. P., Rubin, Lawrence and Hooper, JJ., concur.

Cases cited

Zoldas v. Louise Cab Corp. 108 AD2d 378 N.Y. App. Div. 1985-05-23 at 381 p. 396
Winegrad v. New York University Medical Center 64 NY2d 851 N.Y. 1985-02-12 at 853 p. 396
Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc. 46 NY2d 1065 N.Y. 1979-04-05 at 1067 p. 397

Statutes and regulations cited

Insurance Law p. 396