Vialva v. McMillan

Appellate Division of the Supreme Court of New York

Vialva v. McMillan

31 A.D.3d 536, 817 N.Y.S.2d 519

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 11, 2006

StatusPublished

This text of 31 A.D.3d 536 (Vialva v. McMillan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Vialva v. McMillan, 31 A.D.3d 536, 817 N.Y.S.2d 519 (N.Y. Ct. App. 2006).

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Opinion

In an action to recover damages for [537]*537personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated August 17, 2005, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The Supreme Court correctly denied the defendant’s motion for summary judgment since the defendant failed to establish that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]; Sayers v Hot, 23 AD3d 453, 454 [2005]). Since the defendant failed to satisfy his prima facie burden, it is unnecessary to consider whether the plaintiffs opposition papers were sufficient to raise a triable issue of fact (see Sayers v Hot, supra; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Schmidt, J.P., Crane, Krausman, Skelos and Lunn, JJ., concur.

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In an action to recover damages for [537]*537personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated August 17, 2005, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The Supreme Court correctly denied the defendant’s motion for summary judgment since the defendant failed to establish that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]; Sayers v Hot, 23 AD3d 453, 454 [2005]). Since the defendant failed to satisfy his prima facie burden, it is unnecessary to consider whether the plaintiffs opposition papers were sufficient to raise a triable issue of fact (see Sayers v Hot, supra; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Schmidt, J.P., Crane, Krausman, Skelos and Lunn, JJ., concur.

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Bluebook (online)

31 A.D.3d 536, 817 N.Y.S.2d 519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vialva-v-mcmillan-nyappdiv-2006.

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