Maureen Manns v James N. Vaz

Manns v Vaz 2005 NY Slip Op 04380 [18 AD3d 827] May 31, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 20, 2005

Maureen Manns, Appellant,
v
James N. Vaz, Respondent.

—[*1]

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated March 15, 2004, as granted the defendant's cross motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is denied, and the complaint is reinstated.

When a defendant fails to establish a prima facie case, it is unnecessary to consider whether the plaintiff's papers in opposition to the defendant's motion were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538 [2001]; Chaplin v Taylor, 273 AD2d 188 [2000]; Mariaca-Olmos v Mizrhy, 226 AD2d 437 [1996]). In this case, the defendant's expert performed an orthopedic examination of the plaintiff. However, the expert expressly refused to conduct an examination of the plaintiff's claimed temporal mandibular joint dysfunction and ear, nose, and throat injuries. The defendant did not offer any other expert evidence with respect to those injuries. Since the defendant failed to establish a prima facie case, his cross motion for summary judgment should have been denied. H. Miller, J.P., S. Miller, Goldstein, Mastro and Lifson, JJ., concur.