Bran v. King

23 A.D.3d 324, 803 N.Y.S.2d 440

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 2005
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Palmieri, J), dated September 2, 2004, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The defendants failed to establish their entitlement to judgment as a matter of law (see Aronov v Leybovich, 3 AD3d 511 [2004]; Zavala v DeSantis, 1 AD3d 354 [2003]; Black v Robinson, 305 AD2d 438 [2003]; Claude v Clements, 301 AD2d 554 [2003]; Gamberg v Romeo, 289 AD2d 525 [2001]; Junco v Ranzi, 288 AD2d 440 [2001]). Under these circumstances, we need not consider whether the plaintiffs’ papers were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538 [2001]; see also Facci v Kaminsky, 18 AD3d 806 [2005]; Lesane v Tejada, 15 AD3d 358 [2005]).

Accordingly, the Supreme Court erred in granting the defendants’ motion for summary judgment. Cozier, J.P., Santucci, Luciano, Fisher and Covello, JJ., concur.