Coleman v. Shangri-La Taxi, Inc.

49 A.D.3d 587, 852 N.Y.2d 794

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 2008
• Status: Published

Opinion

The defendants failed to meet their prima facie burden of showing that the plaintiff Virginia Coleman (hereinafter 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, 351 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendants failed to even address the plaintiffs allegation that she suffered a left shoulder injury as a result of the subject accident (see Monkhouse v Maven Limo, Inc., 44 AD3d 630, 630-631 [2007]; O’Neal v Bronopolsky, 41 AD3d 452 [2007]; Hughes v Cai, 31 AD3d 385 [2006]; Loadholt v New York City Tr. Auth., 12 AD3d [2004]). 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 opposing papers were sufficient to raise a triable issue of fact (see Monkhouse v Maven Limo, Inc., 44 AD3d at 631; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Spolzino, J.P., Ritter, Dillon, Balkin and Leventhal, JJ., concur.