Algamaly v. Mirghani

88 A.D.3d 828, 931 N.Y.2d 252

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 2011
• Status: Published

Opinion

Under the circumstances presented in this case, we agree with the appellant’s contention that the defendants failed to meet their prima facie burden of demonstrating that the appellant 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, 956-957 [1992]). Since the defendants did not sustain their prima facie burden, it is unnecessary to determine whether the papers submitted by the appellant in opposition were sufficient to raise a triable issue of fact (see Strilcic v Paroly, 75 AD3d 542 [2010]; Takaroff v A.M. USA, Inc., 63 AD3d 1142, 1143 [2009]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]).

Accordingly, the defendants’ motion for summary judgment should have been denied in its entirety. Mastro, J.R, Florio, Dickerson, Belen and Lott, JJ, concur.