Rampello v. Ferguson

280 A.D.2d 986, 720 N.Y.S.2d 421, 2001 N.Y. App. Div. LEXIS 1131

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant’s motion seeking summary judgment dismissing the complaint on the ground that Anthony J. Rampello (plaintiff) did not sustain a serious injury in the motor vehicle accident on March 8, 1995 (see, Insurance Law § 5102 [d]). Defendant failed to make “a prima facie showing of entitlement to judgment as a matter of law by coming forward with competent proof refuting the allegations of the complaint as amplified by the bill of particulars” (Balnys v Town of New Baltimore, 160 AD2d 1136; see, Owens v Nolan, 269 AD2d 794). Defendant’s expert found that plaintiff was injured in the accident and did not refute the allegation that the injury was permanent. The failure of defendant to meet his initial burden on his motion “requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). (Appeal from Order of Supreme Court, Monroe County, Frazee, J. — Summary Judgment.) Present— Green, J. P., Pine, Hayes, Wisner and Scudder, JJ.