Luciana Bianchini v Jason D. Cotterell

Bianchini v Cotterell 2006 NY Slip Op 03036 [28 AD3d 693] April 25, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 21, 2006

Luciana Bianchini, Respondent,
v
Jason D. Cotterell, Appellant.

—[*1]In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated August 22, 2005, which denied his motion, in effect, 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.

Contrary to the defendant's contention, the Supreme Court properly denied his motion in effect, for summary judgment dismissing the complaint because he failed to establish, prima facie, 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]). Since the defendant failed to meet his initial burden of establishing a prima facie case, it is unnecessary to consider whether the papers submitted in opposition to the motion were sufficient to raise a triable issue of fact (see Rich-Wing v Baboolal, 18 AD3d 726 [2005]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Miller, J.P., Ritter, Luciano, Spolzino and Dillon, JJ., concur.