John J. Salina v Hasmik Joseph

Salina v Joseph 2006 NY Slip Op 01477 [26 AD3d 487] February 28, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 19, 2006

John J. Salina, Respondent,
v
Hasmik Joseph et al., Appellants.

—[*1]In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated March 24, 2005, which denied their 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 determined that the defendants did not establish their prima facie burden on their motion (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]; Aronov v Leybovich, 3 AD3d 511, 512 [2004]). Consequently, the burden never shifted to the plaintiff to raise a triable issue of fact, and we need not consider the sufficiency of the plaintiff's opposition to the motion (see Hanna v Alverado, 16 AD3d 624 [2005]; Mariaca-Olmos v Mizrhy, 226 AD2d 437 [1996]). H. Miller, J.P., Crane, Krausman, Rivera and Lifson, JJ., concur.