Torraco v. All-State Vehicles, Inc.

181 A.D.2d 882, 581 N.Y.S.2d 1012, 1992 N.Y. App. Div. LEXIS 4986

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 30, 1992
• Status: Published

Opinion

— In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Leviss, J.), dated April 26, 1990, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff had failed to prove that he had suffered a serious injury within the meaning of Insurance Law § 5102.

Ordered that the order is affirmed, with costs.

It is fundamental that "[t]he proponent of a motion for summary judgment is required to make a prima facie showing of entitlement to judgment, as a matter of law, offering sufficient evidence to eliminate any material issues of fact from the case. The failure to make such a showing requires the denial of the motion, regardless of the insufficiency of the opposing papers” (Fox v Wyeth Labs., 129 AD2d 611). In the instant case, the defendants moved for summary judgment solely upon the basis of the pleadings and the plaintiff’s testimony at an examination before trial. At no time, either upon the defendants’ original motion or in reply to the plaintiff’s medical proof, did the defendants submit any medical evidence of their own. Based upon the papers before the Supreme Court, the defendants failed to establish their entitlement to summary judgment in the first instance, and the court therefore properly denied their motion (see, DeFreese v Ryan Sanitation Corp., 125 AD2d 289; see also, Assaf v Ropog Cab Corp., 153 AD2d 520, 522). Sullivan, J. P., Balletta, Lawrence and Santucci, JJ., concur.