Shamar Dockery v Budget Rent-A-Car

Dockery v Budget Rent-A-Car 2006 NY Slip Op 01572 [27 AD3d 413] March 7, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 17, 2006

Shamar Dockery et al., Respondents,
v
Budget Rent-A-Car et al., Appellants.

—[*1]In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Ruditzky, J.), dated March 16, 2005, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Mark Anthony Guniss on the ground that that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The defendants failed to make a prima facie showing that the plaintiff Mark Anthony Guniss 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]; Aronov v Leybovich, 3 AD3d 511, 512 [2004]). Consequently, the burden never shifted to the plaintiff Mark Anthony Guniss to raise a triable issue of fact, and we need not consider the sufficiency of his opposition to the motion (see Facci v Kaminsky, 18 AD3d 806, 807 [2005]; Rich-Wing v Baboolal, 18 AD3d 726, 727 [2005]; Hanna v Alverado, 16 AD3d 624 [2005]; Mariaca-Olmos v Mizrhy, 226 AD2d 437 [1996]). Miller, J.P., Crane, Krausman, Rivera and Lifson, JJ., concur.