Grossman v. Wong — 15 A.D.3d 442

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Majority

p. 442

Sam Grossman, Respondent, v Kwai F. Wong et al., Appellants.

[789 NYS2d 447]

In an action to recover damages for

p. 443

personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Johnson, J.), dated February 26, 2004, as denied their cross 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).

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendants failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). Therefore, it was unnecessary to consider whether the plaintiffs opposition papers were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538 [2001]; see also Chaplin v Taylor, 273 AD2d 188 [2000]; Mariaca-Olmos v Mizrhy, 226 AD2d 437 [1996]), and the Supreme Court properly denied the defendants’ cross motion for summary judgment. Adams, J.E, Cozier, Ritter and Skelos, JJ., concur.

Cases cited

Toure v. Avis Rent A Car Systems, Inc. 98 NY2d 345 N.Y. 2002-07-09 p. 443
Mariaca-Olmos v. Mizrhy 226 AD2d 437 N.Y. App. Div. 1996-04-08 p. 443

Statutes and regulations cited

Insurance Law
- § 5102 p. 443