Colon v. Lopez

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Greco, Jr., J.), dated October 28, 2014, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident.

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

In light of the defendants’ failure to meet their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Che Hong Kim v Kossoff, 90 AD3d at 969 ). Therefore, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint. Balkin, J.P., Chambers, Cohen and Hinds-Radix, JJ., concur.