Shulim Sakhnovskiy v Michael Sinder

Sakhnovskiy v Sinder 2004 NY Slip Op 09278 [13 AD3d 432] December 13, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

Shulim Sakhnovskiy et al., Respondents,
v
Michael Sinder et al., Appellants.

—[*1]In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Ambrosio, J.), dated October 20, 2003, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff Shulim Sakhnovskiy did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The defendants failed to make a prima facie showing that the plaintiff Shulim Sakhnovskiy did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The affirmations of the defendants' physicians were too conclusory and incomplete to establish the defendants' entitlement to judgment as a matter of law (see Zavala v DeSantis, 1 AD3d 354 [2003]; Black v Robinson, 305 AD2d 438, 439 [2003]; Gamberg v Romeo, 289 AD2d 525 [2001]).

Since the defendants failed to meet their initial burden on the motion for summary judgment, the burden never shifted to the plaintiffs and therefore it is unnecessary to consider the sufficiency of the plaintiffs' opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Mariaca-Olmos v Mizrhy, 226 AD2d 437 [1996]). Ritter, J.P., H. Miller, Schmidt, Crane and Skelos, JJ., concur.