Majority
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Bayne, J.), dated February 17, 2005, which denied their 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, without costs or disbursements.
While we affirm the order of the Supreme Court, we do so on a ground other than that relied upon by the Supreme Court. The defendants did not satisfy their initial 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 [1992]). The affirmed medical report of the defendants’ examining orthopedist merely
Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law in the first instance, it is unnecessary to consider whether the plaintiff’s papers, submitted in opposition, raised a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Miller, J.P., Santucci, Goldstein, Skelos and Lunn, JJ., concur.
Cases cited
- Toure v. Avis Rent A Car Systems, Inc. 98 NY2d 345 p. 955
- Nembhard v. Delatorre 16 AD3d 390 p. 956
- Sullivan v. Dawes 28 AD3d 472 p. 956
- Browdame v. Candura 25 AD3d 747 p. 956
- Paulino v. Dedios 24 AD3d 741 p. 956
- Kennedy v. Brown 23 AD3d 625 p. 956
- Baudillo v. Pam Car & Truck Rental, Inc. 23 AD3d 420 p. 956