Hoffman v. Nogaro

247 A.D.2d 365, 667 N.Y.S.2d 943, 1998 N.Y. App. Div. LEXIS 862

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 1998
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendant Vincent Nogaro appeals from an order of the Supreme Court, Nassau County (Kohn, J.), entered April 3, 1997, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The appellant had the initial burden of establishing a prima facie entitlement to judgment as a matter of law by demonstrating that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955, 956-957). Under the circumstances of this case, the appellant failed to make a sufficient evidentiary showing to entitle him to summary judgment. Since the appellant failed to satisfy his initial burden, the plaintiffs were not required to come forward with proof that the injured plaintiff sustained a serious injury (see, Rodriguez v Goldstein, 182 AD2d 396).

Bracken, J. P., Pizzuto, Altman and Krausman, JJ., concur.