Rose v. City of New Rochelle

57 A.D.3d 506, 867 N.Y.2d 696

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 2, 2008
• Status: Published

Opinion

The appellants’ proof failed to eliminate all issues of fact as to whether, as a result of the subject motor vehicle accident, the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d), and thus failed to make a prima facie showing that the appellants were entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Under these circumstances, it is not necessary to consider the sufficiency of the plaintiffs opposition papers (see Tchjevskaia v Chase, 15 AD3d 389 [2005]). Santucci, J.E, Covello, Leventhal and Belen, JJ., concur.