Silverstein v. DiFasano

249 A.D.2d 293, 670 N.Y.S.2d 344, 1998 N.Y. App. Div. LEXIS 3754

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Roberto, J.), dated April 2, 1997, as, upon reargument, granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the injured plaintiff did not suffer a serious injury as defined by Insurance Law § 5102 (d).

Ordered that the order is reversed insofar as appealed from, with costs, the defendant’s motion for summary judgment is denied, and the complaint is reinstated.

As the proponent of a motion for summary judgment, the defendant was required to make a prima facie showing that the injured plaintiff did not sustain a serious injury as a result of the underlying accident (see, Gaddy v Eyler, 79 NY2d 955; Flanagan v Hoeg, 212 AD2d 756). In support of her motion, the defendant submitted, inter alia, the affirmed medical report of the physician who examined the injured plaintiff on the defendant’s behalf. Neither that report nor the other evidence submitted by the defendant established a prima facie case that the injured plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d) (see, Mendola v Demetres, 212 AD2d 515; Feuerman v Achtar, 246 AD2d 577; Mastromonica v Conklin, 246 AD2d 581; Fouad v Riser, 246 AD2d 508). Therefore, the defendant’s motion for summary judgment should have been denied. Mangano, P. J., Miller, Pizzuto and Krausman, JJ., concur.